                    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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