Frederick Bell v. State of Mississippi , 160 So. 3d 188 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-KA-00389-SCT
FREDERICK BELL
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 01/22/2013
TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
GLENN S. SWARTZFAGER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ELLIOTT GEORGE FLAGGS
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: VACATED AND REMANDED - 01/08/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. A jury convicted Frederick Bell of capital murder and sentenced him to death in 1993.
He has since been declared mentally retarded and, therefore, his death sentence is
unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002). The circuit court
resentenced Bell to life without parole pursuant to Mississippi Code Section 99-19-107. Bell
appeals, asserting that Section 99-19-107 does not apply to his case. We agree, and we
vacate Bell’s sentence and remand for resentencing.
Factual Background and Procedural History
¶2. Frederick Bell was convicted of capital murder in 1993. Bell v. State, 725 So. 2d 836,
840-41 (¶¶ 1-2) (Miss. 1998). At the time, Mississippi Code Section 97-3-21 provided two
sentences for capital murder – death or life imprisonment.1 The jury imposed the death
penalty. Bell, 725 So. 2d at 841 (¶ 3). Bell’s conviction and death sentence were affirmed
on direct appeal. Id. at 868 (¶ 117). In a successive petition for post-conviction relief, Bell
requested a hearing on his allegation that he was mentally retarded. The Court recognized
that Bell was entitled to a hearing under Atkins v. Virginia, 536 U.S. 304 (2002), which
prohibited execution of the mentally retarded, and granted Bell’s petition on that issue only.
Bell v. State, 66 So. 3d 90, 91 (¶ 1) (Miss. 2011). Doctors at the Mississippi State Hospital
evaluated Bell and determined that he was mentally retarded within the meaning of Atkins.
The State filed a motion for resentencing in circuit court and, over Bell’s objection, the
circuit court resentenced Bell to life without parole pursuant to Mississippi Code Section 99-
19-107 and Foster v. State, 961 So. 2d 670 (Miss. 2007). Bell appeals.
Analysis
¶3. Bell claims that his ineligibility for the death penalty entitled him to be resentenced
to life imprisonment with the possibility of parole because: (1) Atkins v. Virginia was not
a wholesale declaration that the death penalty was unconstitutional, so Section 99-19-107
does not apply to his case; and (2) his due process rights were violated because the life
without parole sentence was a retroactive imposition of changes by judicial interpretation of
a criminal statute that were unexpected and indefensible. We review questions of law de
1
The option of life without parole was added in 1994. See Twillie v. State, 892 So.
2d 187, 189 (¶ 7) (Miss. 2004) (citing Miss. Code Ann. § 97-3-21 (Rev. 2000)).
2
novo. Jones v. State, 122 So. 3d 698, 700 (¶ 4) (Miss. 2013); Goodin v. State, 102 So. 3d
1102, 1111 (¶ 30) (Miss. 2012). The first issue is dispositive, so we will not address Bell’s
due process claim.
Whether Mississippi Code Section 99-19-107, requiring a sentence of life
imprisonment without parole in the event the death penalty is held
unconstitutional, applies to Bell’s case.
¶4. Bell argues that the trial court erred by resentencing to him to life without parole
under Mississippi Code Section 99-19-107, which provides:
In the event the death penalty is held to be unconstitutional by the Mississippi
Supreme Court or the United States Supreme Court, the court having
jurisdiction over a person previously sentenced to death shall cause such
person to be brought before the court and the court shall sentence such person
to imprisonment for life, and such person shall not be eligible for parole.
Miss. Code Ann. § 99-19-107 (Rev. 2007). Bell contends that Section 99-19-107 applies
only if there has been a “wholesale declaration that the death penalty . . . is unconstitutional.”
See Abram v. State, 606 So. 2d 1015, 1039 (Miss. 1992). Because Atkins was not a
wholesale declaration that the death penalty was unconstitutional, Bell maintains that Section
99-19-107 does not apply.
¶5. The State responds that the trial court’s imposition of a life without parole sentence
was proper under Foster v. State, in which the Court overruled Abram v. State and held that
Section 99-19-107 provided “an alternative sentence for a person whose death sentence has
been deemed unconstitutional.” Foster, 961 So. 2d at 672 (¶ 8) (emphasis added). As
evidenced by the Court’s own difficulty in settling on its meaning, further discussed below,
we conclude that Section 99-19-107 is ambiguous. Also, due in part to the Court’s
3
indecisiveness regarding the meaning of Section 99-19-107, we hold that the doctrine of
stare decisis does not apply to the Court’s holding in Foster.
A. Historical Background of Section 99-19-107
¶6. The Legislature enacted Section 99-19-107 in 1977 in the wake of several United
States Supreme Court opinions pertaining to the constitutionality of the death penalty as
applied in particular circumstances. A brief review of that jurisprudence provides helpful
context for today’s analysis.
¶7. In 1972, the United States Supreme Court struck down Georgia’s death penalty statute
as violative of the Eighth Amendment because of the arbitrary and capricious way in which
it was administered. Furman v. Georgia, 408 U.S. 238 (1972). After Furman, the death
penalty stood abolished in many states, including Mississippi. See Peterson v. State, 268 So.
2d 335 (Miss. 1972). In response, the Mississippi Legislature amended the state’s death
penalty law to mandate the death penalty for certain crimes, including capital murder. See
Miss. Code Ann. § 97-3-21 (1975). Then, in 1976, the United States Supreme Court
invalidated mandatory death statutes. Woodson v. North Carolina, 428 U.S. 280 (1976).
The same day Woodson handed down, the Supreme Court also decided Gregg v. Georgia,
428 U.S. 153 (1976), Proffitt v. Florida, 428 U.S. 242 (1976), Jurek v. Texas, 428 U.S. 262(1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), which explained that Furman did
not abolish the death penalty or hold it unconstitutional, but sought to guard against
arbitrariness and capriciousness in the imposition of the death penalty. See Gregg, 428 U.S.
at 188-89.
4
¶8. In the wake of the above-described cases, the Mississippi Supreme Court decided
Jackson v. State, 337 So. 2d 1242 (Miss. 1976), in which the appellant had challenged the
constitutionality of Mississippi Code Section 97-3-21. The Jackson Court held that the
intent of the Legislature was to enact a death penalty statute that would satisfy Furman’s
constitutional requirements. Jackson, 337 So. 2d at 1251. The Jackson Court construed
Section 97-3-21 to mean that individuals convicted of capital murder would be sentenced to
death only if the jury imposed a death sentence “after the defendant has been accorded a trial
governed by procedures and guidelines designed to prevent the risk that the death penalty
would be inflicted in an arbitrary and capricious or freakish manner.” Id. The Court held
that Mississippi’s death penalty was permissive, rather than mandatory, and that the
alternative to the death penalty was life imprisonment. Id. at 1251, 1256.
¶9. In 1977, the Mississippi Legislature again amended Section 97-3-21 to provide for a
sentence of either death or life imprisonment as the penalty for capital murder, consistent
with Jackson’s constitutional reading of that section. See Miss. Code Ann. § 97-3-21 (1977).
The Legislature also enacted Section 99-19-107, which provided:
In the event the death penalty is held to be unconstitutional by the Mississippi
Supreme Court or the United States Supreme Court, the court having
jurisdiction over a person previously sentenced to death shall cause such
person to be brought before the court and the court shall sentence such person
to imprisonment for life, and such person shall not be eligible for work release
or parole.
Miss. Code Ann. § 99-19-107 (1977).2
2
The words “work release or” were removed in the 1982 version. See Miss. Code
Ann. § 99-19-107 (1982).
5
B. Interpretation and Application of Section 99-19-107
¶10. The Court first considered Section 99-19-107 in Abram v. State, 606 So. 2d 1015(Miss. 1992). Abram was convicted of capital murder and sentenced to death by a jury in
1984. Id. at 1018. Afterward, Abram moved for a new trial or judgment notwithstanding
the verdict. Id. The trial court granted the motion, finding Abram’s death sentence
unconstitutional under Enmund v. Florida, 458 U.S. 782 (1982).3 The trial court stayed the
jury’s death sentence indefinitely and sentenced Abram to life without parole pursuant to
Section 99-19-107. Abram, 606 So. 2d at 1038. On appeal, the Court held that the trial court
had misapplied the Enmund factors and, thus, had erred in setting aside Abram’s death
sentence. Id. at 1039-44. The Abram Court also held that the trial court had misapplied
Section 99-19-107, writing:
Although there are no cases addressing the precise application of § 99-19-107,
we think it fairly obvious that it is reserved for that event when either this
Court or the United States Supreme Court makes a wholesale declaration that
the death penalty in general, and/or our own statutory death penalty scheme
in particular, is unconstitutional. This section is not reasonably or logically
intended for use on a case by case basis by trial courts or this Court in
conjunction with Enmund analysis.
The only logical alternative once the jury verdict was disregarded would have
been to impose a sentence of life imprisonment. . . .
Id. at 1039 (emphasis added). Abram remained the law, and Section 99-19-107 was not
mentioned again until 2007.
3
In Enmund, the Supreme Court had held that, in order for the death penalty to be
imposed for felony murder, there must be a finding that the defendant in fact killed,
attempted to kill, or intended that a killing take place or that lethal force be used. Enmund,
458 U.S. at 797. The Mississippi Legislature codified the Enmund factors in 1983. See
Miss. Code Ann. § 99-19-101(7) (1983).
6
¶11. In 2007, the Court had a second opportunity to examine Section 99-19-107 in Foster
v. State, 961 So. 2d 670 (Miss. 2007), and the Court overruled Abram. Foster had been
convicted for capital murder and sentenced to death for a murder that occurred when he was
seventeen years old. Id. at 671 (¶ 2). Foster had raised the issue of his diminished mental
capacity in a petition for post conviction relief, which had been denied. See Foster v. State,
687 So. 2d 1124 (Miss. 1996). However, following the Supreme Court’s decision in Atkins,
former Governor Ronnie Musgrove granted Foster a reprieve from execution and directed
the Court to address the constitutionality of Foster’s sentence under Atkins. Foster v. State,
848 So. 2d 172, 173 (¶ 6) (Miss. 2003). Foster argued that his diminished mental capacity
made him ineligible for the death penalty pursuant to Atkins, and the Court remanded for the
trial court to conduct an Atkins hearing. Id. at 176 (¶ 15).
¶12. While Foster’s remand for an Atkins hearing was pending, the United States Supreme
Court handed down Roper v. Simmons, 543 U.S. 551 (2005), which held that the death
penalty was unconstitutional as applied to individuals under eighteen years of age at the time
of their capital crimes. Thereafter, the Court granted the State’s motion to withdraw the
mandate for an Atkins hearing, vacated Foster’s death sentence, and directed the trial court
to sentence him to life without parole pursuant to Section 99-19-107. Foster, 961 So. 2d at
670 (¶ 1). The circuit court complied, and Foster appealed the judgment, arguing that the
application of Section 99-19-107 constituted an ex post facto punishment. Id. at 671 (¶¶ 3-4).
We rejected Foster’s claim and found that, at the time Foster committed his crime, he was
equally subject to Section 99-19-107. Id. at 672 (¶ 7). Regarding the application of Section
99-19-107 and the Abram Court’s interpretation of it, the Foster Court wrote:
7
The language of the statute is clear; it intends to provide for an alternative
sentence for a person whose death sentence has been deemed unconstitutional.
This Court has previously addressed the scope of section 99-19-107 in Abram
v. State, 606 So. 2d 1015 (Miss. 1992). In Abram, this Court held that the
statute was applicable “for that event when either this Court or the United
States Supreme Court makes a wholesale declaration that the death penalty in
general, and/or our own statutory death penalty scheme in particular, is
unconstitutional.” Abram, 606 So. 2d at 1039. The “wholesale declaration”
requirement set out in Abram is extraneous language that is unnecessary to the
application of the statute. The statute provides that no one whose death penalty
is ruled unconstitutional may receive parole. To the extent that Abram is
inconsistent with the plain meaning of section 99-19-107, it is hereby
overruled.
Foster, 961 So. 2d at 672 (¶ 8) (emphasis added). The Foster Court showed certainty equal
to that of the Abram Court when it reached an entirely different conclusion and overruled
Abram. The Foster Court overruled Abram without once mentioning stare decisis or
questioning whether that doctrine should operate to preserve Abram.
¶13. A unanimous Court issued Abram in 1992, fifteen years after the Legislature had
passed Section 99-19-107; Foster emerged from a divided Court thirty years after the
Legislature had enacted Section 99-19-107.4 The Abram Court held it “fairly obvious” that
Section 99-19-107 would apply only if the death penalty in general or Mississippi’s statutory
iteration of the death penalty was to be struck down as unconstitutional. Abram, 606 So. 2d
at 1039. The Foster Court held that Section 99-19-107 was “clear,” and that it applies when
an individual convict’s sentence of death is declared unconstitutional as to that person alone.
Foster, 961 So. 2d at 672 (¶ 8).
4
The vote in Abram was 6-0, with three justices not participating. Abram, 606 So.
2d at 1044 (three justices dissented on another part of the opinion). The vote in Foster was
5-2, with two justices not participating. Foster, 961 So. 2d at 673.
8
¶14. Only one thing is “clear” from Section 99-19-107 and the interpretation thereof in
Foster and Abram – Section 99-19-107 is ambiguous. More specifically, the scope of the
phrase “the death penalty” in that section is undefined and ambiguous. Both the Abram and
Foster interpretations of Section 99-19-107 are reasonable, and a statute capable of two
reasonable interpretations is ambiguous. Thus, we turn to statutory construction in an
attempt to “discern the legislative intent.” Miss. Methodist Hosp. and Rehab. Ctr., Inc., v.
Miss. Div. of Medicaid, 21 So. 3d 600, 607 (¶ 18) (Miss. 2009). When addressing how to
determine the intent of the Legislature, we have written:
[W]e first look to the language of the statute and any relevant legislative
history. In order to ascertain the legislative intent, this Court “may look not
only to the language used but also to [the statute’s] historical background, its
subject matter, and the purposes and objects to be accomplished.” Davis v. AG,
935 So. 2d 856, 868 (Miss. 2006) (quoting Bailey v. Al-Mefty, 807 So. 2d
1203, 1206 (Miss. 2001)). This Court considers “the purpose and policy which
the legislature had in view of enacting the law . . . [and] will then give effect
to the intent of the legislature.” State ex rel. Hood v. Madison County ex rel.
Madison County Bd. of Supervisors, 873 So. 2d 85, 88 (Miss. 2004) (citing
Aikerson v. State, 274 So. 2d 124, 127 (Miss. 1973)).
Tunica County v. Gray, 13 So. 3d 826, 830 (¶ 18) (Miss. 2009). See also Miss. Methodist
Hosp., 21 So. 3d at 607 (¶ 18) (Court may “look to the statute’s historical background,
purpose, and objectives.”).
¶15. Our review of the bill that included what would be codified as Section 99-19-107
reveals that the Abram Court interpreted it correctly. See Miss. Laws 1977, ch. 458 (1977).
The bill was lengthy and included thorough treatment of numerous, if not all, parts of the
Mississippi criminal code by which the death penalty could be imparted. Given the then-
existing challenges, not only to the death penalty as applied to certain groups of individuals
9
but to the death penalty as a whole, we conclude it is more likely that Section 99-19-107,
enacted in 1977, referred to a wholesale removal of the death penalty as interpreted in
Abram.
¶16. To understand the challenges in question, one may start with the 1972 case of Furman
v. Georgia, discussed above. Furman was a one-paragraph, per curium opinion in which
the United States Supreme Court reversed death sentences in three separate cases. Furman,
408 U.S. at 239-40. The Court wrote merely “The Court holds that the imposition and
carrying out of the death penalty in these cases constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments.” Id. In addition to the one-paragraph
opinion, however, Justices Douglas, Brennan, Stewart, White, and Marshall each wrote
lengthy concurrences, and Chief Justice Burger and Justices Blackmun, Powell, and
Rehnquist each authored substantial dissents. Id. at 240-470. We will not fully address each
of the nine separate opinions – spanning 230 pages – but, given their content, the opinions
raised the then-real possibility of a complete erasure of capital punishment. In his separate
opinion, Justice Stewart established that, indeed, the Court had considered a global
prohibition against the death penalty. He wrote:
The penalty of death differs from all other forms of criminal punishment, not
in degree but in kind. It is unique in its total irrevocability. It is unique in its
rejection of rehabilitation of the convict as a basic purpose of criminal justice.
And it is unique, finally, in its absolute renunciation of all that is embodied in
our concept of humanity.
For these and other reasons, at least two of my Brothers have concluded that
the infliction of the death penalty is constitutionally impermissible in all
circumstances under the Eight[h] and Fourteenth Amendments. Their case is
a strong one. But I find it unnecessary to reach the ultimate question they
would decide.
10
Id. at 306 (Stewart, J., concurring). Clearly, the wholesale removal of the death penalty from
American criminal law was the conspicuous desire of some members of the Furman Court.
¶17. Then, in Woodson v. North Carolina, the appellant urged the Supreme Court to hold
the death penalty unconstitutional under any circumstances. Woodson, 428 U.S. at 285. The
Supreme Court handed down Woodson in 1976, one year before the Mississippi Legislature
enacted Section 99-19-107. Again, in Gregg v. Georgia, handed down the same day as
Woodson, the Court considered whether the death penalty was cruel and unusual punishment
violating the Eighth and Fourteenth Amendments of the Constitution in all circumstances.
Gregg, 428 U.S. at 168. The Supreme Court discussed whether the death penalty was a cruel
and unusual punishment under any circumstances in at least three other cases decided in
1976. See Proffitt, 428 U.S. at 247; Jurek, 428 U.S. at 268; Roberts, 428 U.S. at 331.
Accordingly, 1970’s death penalty jurisprudence established an environment in which the
Mississippi Legislature faced the possible global removal of capital punishment from our
criminal law. In drafting Section 99-19-107 within that context, the Legislature likely
intended to address the possibility that “the death penalty” in its entirety would become
unconstitutional. Given the statute’s history, the comprehensive nature of the bill that
spawned it, and the plain language of the statute, we are convinced that the Abram Court
correctly interpreted Section 99-19-107.
¶18. Returning to the instant case, Bell is correct that the Supreme Court’s holding in
Atkins was not a wholesale declaration that the death penalty was unconstitutional. Rather,
Atkins prohibited the imposition of death sentences on mentally retarded individuals. Thus,
an individual sentenced to death who is later determined to be mentally retarded pursuant to
11
Atkins should be resentenced, not automatically given a sentence of life without parole.
Instead, after Foster, courts have applied Mississippi Code Section 99-19-107 to impose a
mandatory sentence of life without parole for anyone whose individual death sentence is
deemed unconstitutional. See Neal v. State, 27 So. 2d 460 (Miss. Ct. App. 2010).5 That
application of Section 99-19-107 under Foster is erroneous. However, the Foster decision
is our latest pronouncement on the meaning of the statute, and Foster expressly overruled
Abram, so we would be remiss if we failed to address it.
C. Foster v. State and the Doctrine of Stare Decisis
¶19. We have considered it a principle of stare decisis that, when we apply a rule of law
to one party before the Court, we must apply the same rule of law to all others coming before
us. Miss. Transp. Comm’n v. Ronald Abrams Contractor, Inc., 753 So. 2d 1077, 1094 (¶
56) (Miss. 2000). In other words, “stare decisis proceeds from that first principle of justice,
that, absent powerful countervailing considerations, like cases ought to be decided alike.”
State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991). In a recent treatment of
stare decisis, the Court wrote:
[O]ur precedent applying stare decisis may be summed up as follows: Even
though this Court’s previous interpretation of a statute was (in the current
Court’s view) erroneous, we must continue to apply the incorrect interpretation
5
The Court of Appeals applied Foster in Neal v. State, 27 So. 3d 460 (Miss. Ct. App.
2010). Neal’s 1982 death sentence was held unconstitutional after he was determined to be
mentally retarded pursuant to Atkins. Neal, 27 So. 3d at 460-62 (¶¶ 1, 7). He subsequently
was sentenced to life without parole under Section 99-19-107. Id. at 461 (¶ 3). Neal
appealed, arguing that it constituted ex post facto punishment under both the state and federal
constitutions. Id. at 461 (¶ 5). The Court of Appeals rejected Neal’s claims and affirmed
his sentence. Id. at 462 (¶ 7). Relying on Foster, the Court of Appeals held that Neal was
subject to Section 99-19-107 at the time he committed his crime. Id.
12
unless we consider it “pernicious,” “impractical,” or “mischievous in . . .
effect, and resulting in detriment to the public.”
Unfortunately, having stated what must be found to prevent application of
stare decisis, this Court has offered no guidelines for finding or identifying
these prerequisites (pernicious, impractical, mischievous, etc.). A justice on
this Court might reasonably conclude that some of the definitions of
mischievous or pernicious apply to all of this Court’s prior opinions with
which that justice disagrees.Caves v. Yarbrough, 991 So. 2d 142, 152 (¶¶ 38-
39) (Miss. 2008) (citations omitted).
¶20. The Foster Court overruled Abram without any discussion of whether it considered
the Abram interpretation of Section 99-19-107 to be pernicious, impractical, or mischievous
in its effect. From the text of the Foster opinion, the Court simply disagreed with its
predecessor Court. The Court never has dealt with the statute while acknowledging both its
ambiguity and history, and the sparse treatment of the problem in Abram and Foster weakens
the application of stare decisis to today’s case. Stare decisis applies to “long established
legal interpretations.” Molpus, 578 So. 2d at 634. In today’s case, we are presented with a
situation in which only two opinions interpret a statute, each opinion characterizes its
interpretation as clear or obvious, and each opinion reaches a wholly different conclusion.
The situation at hand does not make for a “long established legal interpretation.”
¶21. Moreover, stare decisis applies less forcefully to our interpretation of remedial, rather
than substantive, statutes.
Here, we inquire whether there are citizens of our state who in good faith have
relied upon the current rule in their plans and activities? . . . We recognize that
if the answers of these questions be in the affirmative, such is a powerful
consideration militating against abandonment of the rule existing heretofore.
The content of the law is readily available to the citizenry. It must be so if one
is to order his life. . . . The rule of stare decisis exists to further private order.
It is based upon the desirability of enabling people to plan their affairs at the
13
level of primary private activity with the maximum attainable confidence that,
if they comply with the law as it has theretofore been announced, or can fairly
be expected to be announced thereafter, they will not become entangled in
litigation. Those laws that regulate and undergird primary private activity must
be constant through time.
But not all rules of law are of this type. Specifically, rules that provide
remedies do not serve the same function in ordering our society as to those
rules regulating primary private activity, rules occasionally grossly known as
“substantive rules of law.”
Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 465 (Miss. 1983) (citations omitted).
Section 99-19-107 is akin to a remedial statute. Certainly, the statutes criminalizing conduct
and affixing death as a penalty would be primary, substantive laws that order the behavior
of our citizens, but Section 99-19-107 only would come into effect well after one had
committed the criminal act and a court had declared the death penalty to be unconstitutional.
Accordingly, the grip of stare decisis is further weakened.
¶22. We have cited with approval the concept that the only response to an error in our cases
affecting the administration of justice is to fix it. Brewer v. Browning, 115 Miss. 358, 76 So.
267, 270 (1917). For the reasons given above, we conclude that stare decisis does not
prevent the Court from returning to the Abram Court’s interpretation of Section 99-19-107,
which, as discussed, we consider the accurate interpretation.
¶23. Under the Court’s interpretation in Abram, Section 99-19-107 would come into play
only if the death penalty in its entirety is rendered unconstitutional. In that situation, rather
than every individual on death row having to undergo resentencing, the courts would impose
sentences of life without parole for every person with a death sentence. The death penalty
has been rendered unconstitutional to certain classes of people – minors and mentally
14
retarded – but has not been rendered wholesale unconstitutional. Thus, Bell is correct that,
under Abrams, Section 99-19-107 does not apply. Accordingly, we vacate the trial court’s
sentence of life without parole and remand the case for Bell to be resentenced to life, because
death and life were the only two sentencing options at the time Bell was convicted and
sentenced.
Conclusion
¶24. We hold that Section 99-19-107 is inapplicable because the death penalty in its
entirety has not been declared unconstitutional. As to Bell individually, however, his
sentence of death is unconstitutional because he has been determined to be mentally retarded.
Section 99-19-107 does not apply when an individual’s death sentence is rendered
unconstitutional. That section would apply if, and only if, the United States Supreme Court
or the Mississippi Supreme Court rendered a wholesale declaration that the death penalty as
a sentence to anyone was unconstitutional. That has not happened, and Section 99-19-107
has never been called into play. With his death sentence being unconstitutional, Bell is
entitled to a new sentence. Bell’s sentence is vacated, and we remand the case to the Circuit
Court of Grenada County for Bell to be resentenced to life imprisonment.
¶25. VACATED AND REMANDED.
DICKINSON, P.J., LAMAR, KITCHENS, AND KING, JJ., CONCUR.
PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., RANDOLPH, P.J., AND CHANDLER, J.
PIERCE, JUSTICE, DISSENTING:
¶26. Respectfully, I dissent from the majority’s interpretation of Mississippi Code Section
99-19-107, and, in turn, its decision to vacate Frederick Bell’s sentence under that section.
15
In my opinion, this Court correctly interpreted Section 99-19-107 in Foster v. State, 961 So.
2d 670 (Miss. 2007), to apply to classes of persons whose death sentences had been deemed
unconstitutional. Foster rightly overruled Abram v. State, 606 So. 2d 1015 (Miss. 1992), as
Abram did not have before it the decrees of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (2002), and Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161
L. Ed. 2d 1 (2005), which categorically prohibit the death penalty for certain classes of
offenders. The defendant in Abram belonged to no such class and remained subject to the
death penalty after his sentence under Section 99-19-107 was reversed and his case remanded
by this Court. In short, Section 99-19-107 was not applicable in Abram or in any other
Mississippi death-penalty case until the Supreme Court’s decision in Atkins. For this reason,
Abram carries no weight. And Foster properly treated Abram accordingly.
¶27. In the wake of Atkins and Roper,6 reading Section 99-19-107 to apply only if this
Court or the Supreme Court renders a wholesale declaration that the death penalty in its
entirety is unconstitutional, lends itself to the interpretation that the whole is greater than the
sum of its parts. As Foster recognized, it is not, for purposes of Section 99-19-107. And the
question before us need only be taken to its logical conclusion to see that Foster’s
interpretation of Section 99-19-107 is the correct one.
¶28. Again, the holdings of Atkins and Roper prohibit the imposition of death as a
punishment for certain classes of individuals, under the Eighth Amendment. Given the High
6
Miller v. Alabama, ____U.S. ____, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012),
which prohibits a mandatory sentencing scheme of life without parole for juvenile
offenders, effectively abrogates Foster’s disposition. For our purposes here, however,
this does not affect Foster’s interpretation of Section 99-19-107.
16
Court’s Eighth Amendment rationale comprising those two decisions, every conceivable
class of individuals has the potential to be included alongside the classes identified in Atkins
and Roper. Were this to occur, the death penalty would have been abrogated piecemeal
rather than wholesale without Section 99-19-107 ever going into effect.
¶29. Since Atkins and Roper were not in existence at the time Abram spoke to Section 99-
19-107, there was no reason for the Abram Court to contemplate such a scenario. The same,
however, cannot be said of our Legislature, when it enacted Section 99-19-107 following
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
¶30. As Foster concluded, Section 99-19-107 intends to provide for an alternative sentence
of life without the possibility of parole for those whose death sentences have been deemed
unconstitutional. Foster, 961 So. 2d at 672. Because Bell’s death penalty was found
unconstitutional based on the Supreme Court’s ruling in Atkins, Section 99-19-107 applies.
¶31. For these reasons, I would affirm Bell’s sentence of life without parole under Section
99-19-107.
WALLER, C.J., RANDOLPH, P.J. AND CHANDLER, J., JOIN THIS
OPINION.
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