Introduced Version House Bill 2044 History

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H. B. 2044


         (By Delegates Armstead, Anderson and Craig)

         [Introduced January 12, 2011; referred to the

         Committee on Government Organization then the Judiciary.]





A BILL to amend and reenact §4-10-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §61-13-1, §61-13-2, §61-13-3 and §61-13-4, all relating to the Performance Review Act; crimes and their punishment; the creation of a Sentencing Commission, providing for the appointment, terms and qualifications of members; establishing objectives for the commission; and setting forth certain powers and duties of the commission.

Be it enacted by the Legislature of West Virginia:

    That §4-10-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §61-13-1, §61-13-2, §61-13-3 and §61-13-4, all to read as follows:



§4-10-8. Schedule of departments for agency review.

    (a) Each department shall make a presentation pursuant to the provisions of this article, to the joint standing committee and the committee during the first interim meeting after the regular session of the year in which the department is to be reviewed pursuant to the schedule set forth in subsection (b) of this section.

    (b) An agency review shall be performed on one or more agencies under the purview of each department at least once every six years, commencing as follows:

    (1) 2008, the Department of Administration;

    (2) 2009, the Department of Education and the Arts, and the Department of Education, including the Higher Education Policy Commission and the West Virginia Council for Community and Technical College Education;

    (3) 2010, the Department of Revenue and the Department of Commerce;

    (4) 2011, the Department of Environmental Protection and the Department of Military Affairs and Public Safety and 2013 the Sentencing Commission;

    (5) 2012, the Department of Health and Human Resources, including the Bureau of Senior Services; and

    (6) 2013, the Department of Transportation.



§61-13-1. Creation of sentencing commission; how members are              appointed; no compensation for service of members;              terms of office for members; what constitutes              quorum; how chairperson elected; Executive              Director.

   (a) There is hereby created a West Virginia Sentencing Commission.

   (b) The commission consists of the following members, who shall serve without compensation:

   (1) One member is the Chairperson of the Governor’s Committee on Crime and Delinquency, who shall serve as an ex officio member;

   (2) Two members are from the West Virginia House of Delegates, to be appointed by the Speaker of the House;

   (3) Two members are members of the West Virginia Senate, to be appointed by the President of the Senate;

   (4) Seven members are current or retired circuit judges, magistrates or municipal court judges, to be appointed to their membership on this commission by the Governor;

   (5) Two members are citizens of the State of West Virginia, with no required prerequisite other than citizenship in this state, to be appointed by the Governor;

   (6) One member is the presiding Chief Justice of the West Virginia Supreme Court of Appeals, who shall serve as an ex officio member.

   (c) Each member serves a two-year term, with the exception of the ex officio members who shall serve as long as they shall hold their respective offices.

   (d) The chairperson of this commission shall be elected by the other members of the commission.

   (e) Eight members of the commission constitute a quorum.

   (f) The Executive Director of the Governor’s Committee on Crime and Delinquency shall serve as the Executive Director of this Sentencing Commission and will provide administrative services.

§61-13-2. Purpose of Sentencing Commission.

   The Legislature hereby finds and declares that:

   (a) There is a need for fair and uniform sentencing;

   (b) There is a need for research on issues regarding sentencing in order to promote a fuller understanding of the efficient, just and fair operation of this state’s criminal justice system;

   (c) There is a need for establishing priorities with regard to the severity of the criminal offenses and, in accordance with such established priorities, to consider alternatives to incarceration for nonviolent offenders;

   (d) There is a need to utilize the limited correctional resources in a manner best able to fulfill the goals of criminal punishment and protect the public.

§61-13-3. Objectives of the commission.

   The Sentencing Commission shall pursue the following objectives:

   (a) Promoting sentencing that more accurately reflects the time that an offender will actually be incarcerated;

   (b) Concentrating prison capacity on the incarceration of violent and career offenders;

   (c) Reducing unwarranted disparity in sentences for offenders who have committed similar offenses and have similar criminal histories;

   (d) Preserving meaningful judicial discretion in the imposition of sentences and sufficient flexibility to permit individualized sentences;

   (e) Ensuring that sentencing judges in every jurisdiction in the state are able to impose the most appropriate criminal penalties including correctional options programs for appropriate nonviolent offenders; and

   (f) Determining whether the state needs to set out all criminal offenses in terms of priority in order of severity and harm to society and to provide alternatives to incarceration for certain offenses.

§61-13-4. Powers and duties of the commission.

   The Sentencing Commission established pursuant to this article has the following powers and duties:

   (a) The commission shall establish general policies and propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code as are necessary to carry out the purposes of this section;

   (b) The commission may request such information, data and reports from any officer or agency of the state government as the commission may from time to time require and as may be produced consistent with other law;

   (c) The commission may issue invitations requesting the attendance and testimony of witnesses and the production of any evidence that relates directly to a matter with respect to which the commission or any member thereof is empowered to make a determination under this article;

   (d) The commission shall establish a research and development program within the commission for the purpose of:

   (1) Serving as a clearinghouse and information center for the collection, preparation and dissemination of information on sentencing practices;

   (2) Assisting and serving in a consulting capacity to state courts, departments and agencies in the development, maintenance and coordination of sound sentencing practices;

   (e) The commission shall collect systematically the data obtained from studies, research and the empirical experience of public and private agencies concerning the sentencing processes;

   (f) The commission shall publish data concerning the sentencing process;

   (g) The commission shall collect systematically and disseminate information concerning sentences actually imposed;

   (h) The commission shall, collect systematically and disseminate information regarding effectiveness of sentences imposed;

   (i) The commission shall make recommendations to the Legislature concerning modification or enactment of sentencing and correctional statutes which the commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy;

   (j) The commission shall establish a plan and timetable to collect and disseminate information relating to incapacitation, recidivism, deterrence and overall effectiveness of sentences imposed;

   (k) The commission shall evaluate the state’s sentencing and correctional laws and policies and make recommendations to the Governor and the Legislature on or before January 1, 2013, and at its discretion thereafter, regarding the following issues:

   (1) Whether the state should adopt guided discretion sentencing guidelines and, if so, what type of guided discretion sentencing guidelines should be adopted;

   (2) Whether the state should retain parole as a correctional option for all inmates or any particular category of inmates;

   (3) Whether the state should determine the minimum portion of a sentence that must be served by all inmates or any particular category of inmates before becoming eligible for parole;

   (4) Whether the state should alter the manner in which an inmate may obtain credit for good time served or release on mandatory supervision;

   (5) Whether the state needs to take action to ensure that there is a coordinated system of correctional options to incarceration at the state and county levels and, if so, what action should be taken; and

   (6) Any other matters relating to state and local laws and policies governing sentencing, parole, mandatory supervision and correctional options programs.


   NOTE: The purpose of this bill is to create a Sentencing Commission, setting forth its membership, responsibilities, powers and duties. The bill also requires that the commission evaluate the state’s sentencing and correctional laws and policies and make recommendations to the Governor and the Legislature.

   Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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