H. B. 3142
(By Delegate Gearheart)
[Introduced
March 25, 2013
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §62-12-12b; and to
amend and reenact §62-12-13, all relating to eligibility for
release on parole of inmates in regional jails that have been
committed to prison; establishing a program to expedite the
provision of all services, treatment, evaluations, assessments
and programs, including a written parole release plan, to be
eligible for parole; providing various methods to provide
components of the program at regional jails; providing payment
of costs for the program; and revising eligibility
requirements for parole.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §62-12-12b; and that
§62-12-13 of said code be amended and reenacted, all to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-12b. Parole eligibility programs and services for inmates
detained in a regional jail that have been
committed to prison.
__The Division of Corrections shall develop and implement a
comprehensive plan to provide and develop all services, treatment,
evaluations, assessments and programs, including a written parole
release plan, necessary to address the needs of inmates detained in
a regional jail, but committed to the custody of the Commissioner
of Corrections, to be eligible for parole. The program shall be
developed in consultation with the Regional Jail Authority, and all
or any component of the services or program may be offered by video
teleconference or webinar technology or may be provided at the
regional jail. The division may enter into agreements or make
other arrangements with the Regional Jail Authority for providing
any component of the program by resources available to, or which
can be provided by, the authority. The costs of the program shall
be paid out of funds appropriated to the Division of Corrections.
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.
(a) The board of parole Parole Board, whenever it is of the
opinion that the best interests of the state and of the inmate will be served, and subject to the limitations hereinafter provided in
this section, shall release any inmate on parole for terms and upon
conditions as are provided by this article.
(b) Any inmate of a state correctional center institution is
eligible for parole if he or she:
(1)(A) Has served the minimum term of his or her indeterminate
sentence or has served one fourth of his or her definite term
sentence, as the case may be; or
(B) He or she:
(i) Has applied for and been accepted by the Commissioner of
Corrections into an accelerated parole program;
(ii) Does not have a prior criminal conviction for a felony
crime of violence against the person, a felony offense involving
the use of a firearm or a felony offense where the victim was a
minor child. As used in this subsection, a "felony crime of
violence against the person" and a "felony crime where the victim
was a minor child" have the same meaning set forth in section
thirteen, article twelve, chapter sixty-two of this section;
__(iii) Has no record of institutional disciplinary rule
violations for a period of one hundred twenty days prior to parole
consideration unless the requirement is waived by the commissioner;
(iv) (iii) Is not serving a sentence for a crime of violence
against the person, or more than one felony for a controlled
substance offense for which the inmate is serving a consecutive sentence, a felony offense involving the use of a firearm or a
felony offence offense where the victim was a minor child; and
(v) (iv) Has successfully completed a rehabilitation treatment
program created with the assistance of a standardized risk and
needs assessment.
(I) As used in this section "felony crime of violence against
the person" means felony offenses set forth in articles two, three-
e, eight-b or eight-d of chapter sixty-one of this code; and
(II) As used in this section "felony offense where the victim
was a minor child" means any felony crime of violence against the
person and any felony violation set forth in article eight, eight-
a, eight-c or eight-d of chapter sixty-one of this code.
(C) Notwithstanding any provision of this code to the
contrary, any person inmate who committed, or attempted to commit,
a felony with the use, presentment or brandishing of a firearm, is
not eligible for parole prior to serving a minimum of three years
of his or her sentence or the maximum sentence imposed by the
court, whichever is less: Provided, That any person inmate who
committed, or attempted to commit, any violation of section twelve,
article two, chapter sixty-one of this code, with the use,
presentment or brandishing of a firearm, is not eligible for parole
prior to serving a minimum of five years of his or her sentence or
one third of his or her definite term sentence, whichever is
greater. Nothing in this paragraph applies to an accessory before the fact or a principal in the second degree who has been convicted
as if he or she were a principal in the first degree if, in the
commission of or in the attempted commission of the felony, only
the principal in the first degree used, presented or brandished a
firearm. A person An inmate is not ineligible for parole under the
provisions of this paragraph because of the commission or attempted
commission of a felony with the use, presentment or brandishing of
a firearm unless that fact is clearly stated and included in the
indictment or presentment by which the person was charged and was
either: (i) Found guilty by the court at the time of trial upon a
plea of guilty or nolo contendere; (ii) found guilty by the jury,
upon submitting to the jury a special interrogatory for such
purpose if the matter was tried before a jury; or (iii) found
guilty by the court, if the matter was tried by the court without
a jury.
For the purpose of this section, the term "firearm" means any
instrument which will, or is designed to, or may readily be
converted to, expel a projectile by the action of an explosive,
gunpowder or any other similar means.
(D) The amendments to this subsection adopted in the year
1981:
(i) Apply to all applicable offenses occurring on or after
August 1 of that year;
(ii) Apply with respect to the contents of any indictment or presentment returned on or after August 1 of that year irrespective
of when the offense occurred;
(iii) Apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to the jury on or after August 1 of that year or to
the requisite findings of the court upon a plea of guilty or in any
case tried without a jury: Provided, That the state gives notice
in writing of its intent to seek such finding by the jury or court,
as the case may be. which The notice shall state with particularity
the grounds upon which the finding will be sought as fully as such
the grounds are otherwise required to be stated in an indictment,
unless the grounds therefor upon which the finding will be sought
are alleged in the indictment or presentment upon which the matter
is being tried; and
(iv) Does not apply with respect to cases not affected by the
amendments and in such those cases the prior provisions of this
section apply and are construed without reference to the
amendments.
(1) (v) Insofar as the amendments relate to mandatory
sentences restricting the eligibility for parole, all matters
requiring a mandatory sentence shall be proved beyond a reasonable
doubt in all cases tried by the jury or the court;
(2) Is not in punitive segregation or administrative
segregation as a result of disciplinary action;
(3) Has maintained a record of good conduct in prison for a
period of at least three months immediately preceding the date of
his or her release on parole;
(4) Has prepared and submitted to the Parole Board a written
parole release plan setting forth proposed plans for his or her
place of residence, employment and, if appropriate, his or her
plans regarding education and post-release counseling and
treatment: Provided, That an inmate's application for parole may
be considered by the Parole Board without the prior submission of
a home plan, but the inmate shall have a home plan approved by the
Parole Board prior to his or her release on parole. The
Commissioner of Corrections or his or her designee shall review and
investigate the plan to be reviewed and investigated and provide
recommendations to the Parole Board as to the suitability of the
plan: Provided, That in cases in which there is a mandatory
thirty-day notification period required prior to the release of the
inmate, pursuant to section twenty-three of this article, the
Parole Board may conduct an initial interview and deny parole
without requiring the development of a plan. In the event the
Parole Board does not believe parole should be denied believes
parole should be granted, it may defer a final decision pending
completion of an investigation and receipt of recommendations.
Upon receipt of the plan together with the investigation and
recommendation, the Parole Board, through a panel, shall make a final decision regarding the granting or denial of parole; and
(5) Has satisfied the Parole Board that if released on parole
he or she will not constitute a danger to the community.
(c) Except in the case of a person an inmate serving a life
sentence, no a person who has been previously twice convicted of a
felony may not be released on parole until he or she has served the
minimum term provided by law for the crime for which he or she was
convicted. A person An inmate sentenced for life may not be
paroled until he or she has served ten years, and a person an
inmate sentenced for life who has been previously twice convicted
of a felony may not be paroled until he or she has served fifteen
years: Provided, That a person an inmate convicted of first degree
murder for an offense committed on or after June 10, 1994, is not
eligible for parole until he or she has served fifteen years.
(d) In the case of a person an inmate sentenced to any state
correctional center, it is the duty of the board institution, the
Parole Board, as soon as a person that inmate becomes eligible, to
shall consider the advisability of his or her release on parole.
(e) If, upon consideration, parole is denied, the Parole Board
shall promptly notify the inmate of the denial. The Parole Board
shall, at the time of denial, notify the inmate of the month and
year he or she may apply for reconsideration and review. The
Parole Board shall at least once a year reconsider and review the
case of every inmate who was denied parole and who is still eligible: Provided, That the Parole Board may reconsider and
review parole eligibility anytime within three years following the
denial of parole of an inmate serving a life sentence with the
possibility of parole.
(f) Any person inmate serving a sentence on a felony
conviction who becomes eligible for parole consideration prior to
being transferred to a state correctional center institution may
make written application for parole. The terms and conditions for
parole consideration established by this article apply to such
inmates that inmate.
(g) The Parole Board shall, with the approval of the Governor,
adopt rules governing the procedure in the granting of parole. No
provision of this article and none of the rules adopted hereunder
under this article are intended or may be construed to contravene,
limit or otherwise interfere with or affect the authority of the
Governor to grant pardons and reprieves, commute sentences, remit
fines or otherwise exercise his or her Constitutional powers of
executive clemency.
(h) (1) The Division of Corrections shall promulgate policies
and procedures for developing a rehabilitation treatment plan
created with the assistance of a standardized risk and needs
assessment. The policies and procedures shall include, but not be
limited to, policy and procedures for provide for, at a minimum,
screening and selecting inmates for rehabilitation treatment and development, and use of using standardized risk and needs
assessment and substance abuse assessment tools, and prioritizing
the use of residential substance abuse treatment resources based on
the results of the standardized risk and needs assessment and a
substance abuse assessment.
__(2) An inmate shall not be paroled under paragraph (B),
subdivision (1), subsection (b) of this section solely due to
having successfully completed a rehabilitation treatment plan, but
completion of all the requirements of a rehabilitation parole
treatment plan along with compliance with the requirements of
subsection (b) of this section shall creates a rebuttable
presumption that parole is appropriate. The presumption created by
this subsection subdivision may be rebutted by a Parole Board
finding that, according to the standardized risk and needs
assessment, at the time parole release is sought the inmate still
constitutes a reasonable risk to the safety or property of other
persons if released. Nothing in subsection (b) of this section or
in this subsection may be construed to create a right to parole.
(i) Notwithstanding the provisions of subsection (b) of this
section, the Parole Board may, in its discretion, grant or deny
parole to an inmate against whom a detainer is lodged by a
jurisdiction other than West Virginia for service of a sentence of
incarceration, upon a written request for parole from the inmate.
A denial of parole under this subsection shall preclude precludes consideration for parole for a period of one year or until the
provisions of subsection (b) of this section are applicable.
(j) Where If an inmate is otherwise eligible for parole
pursuant to subsection (b) of this section and has completed the
rehabilitation treatment program required under subsection (h) of
this section, but the Parole Board determines that may not require
the inmate should to participate in an additional program, or but
may determine that the inmate must complete an assigned task or
tasks prior to actual release on parole. The board may grant
parole contingently, effective upon successful completion of the
program or assigned task or tasks, without the need for a further
hearing. The Commissioner of Corrections shall provide notice to
the Parole Board of the imminent release of a contingently paroled
inmate to effectuate appropriate supervision.
(k) The Division of Corrections is charged with the duty of
supervising shall supervise all probationers and parolees whose
supervision may have been undertaken by this state by reason of any
interstate compact entered into pursuant to the Uniform Act For
Out-of-State Parolee Supervision.
(l)(1) When considering an inmate of a state correctional
center for release on parole, the Parole Board panel considering
the parole is to shall have before it an authentic copy of or
report on the inmate's current criminal record as provided through
the West Virginia State Police, the United States Department of Justice or any other reliable criminal information sources and
written reports of the warden or superintendent of the state
correctional center institution to which the inmate is sentenced:
(A) On the inmate's conduct record while in custody, including
a detailed statement showing any and all infractions of
disciplinary rules by the inmate and the nature and extent of
discipline administered therefor for the infractions;
(B) On improvement or other changes noted in the inmate's
mental and moral condition while in custody, including a statement
expressive of the inmate's current attitude toward society in
general, toward the judge who sentenced him or her, toward the
prosecuting attorney who prosecuted him or her, toward the
policeman or other officer who arrested the inmate and toward the
crime for which he or she is under sentence and his or her previous
criminal record;
(C) On the inmate's industrial record while in custody which
shall include: The nature of his or her work, occupation or
education, the average number of hours per day he or she has been
employed or in class while in custody and a recommendation as to
the nature and kinds of employment which he or she is best fitted
to perform and in which the inmate is most likely to succeed when
he or she leaves prison the state correctional institution; and
(D) On any physical, mental, and psychological or psychiatric
examinations of the inmate. conducted, insofar as practicable, within the two months next preceding parole consideration by the
board.
(2) The Parole Board panel considering the parole may waive
the requirement of any report when not available or not applicable
as to any inmate considered for parole but, in every such case,
shall enter in the its record thereof its reason for the waiver:
Provided, That in the case of an inmate who is incarcerated because
the inmate has been found guilty of, or has pleaded guilty to, a
felony under the provisions of section twelve, article eight,
chapter sixty-one of this code or under the provisions of article
eight-b or eight-c of said chapter, the Parole Board panel may not
waive the report required by this subsection. and The report is to
shall include a study and diagnosis of the inmate, including an on-
going treatment plan requiring active participation in sexual abuse
counseling at an approved mental health facility or through some
other approved program: Provided, however, That nothing disclosed
by the person inmate during the study or diagnosis may be made
available to any law-enforcement agency, or other party without
that person's inmate's consent, or admissible in any court of this
state, unless the information disclosed indicates the intention or
plans of the parolee to do harm to any person, animal, institution
or to property. Progress reports of outpatient treatment are to be
made at least every six months to the parole officer supervising
the person parolee. In addition, in such cases, the Parole Board shall inform the prosecuting attorney of the county in which the
person was convicted of the parole hearing and shall request that
the prosecuting attorney inform the Parole Board of the
circumstances surrounding a conviction or plea of guilty, plea
bargaining and other background information that might be useful in
its deliberations.
(m) Before releasing any inmate on parole, the board of parole
Parole Board shall arrange for the inmate to appear in person
before a Parole Board panel and the panel may examine and
interrogate him or her on any matters pertaining to his or her
parole, including reports before the Parole Board made pursuant to
the provisions hereof of this section: Provided, That an inmate
may appear by video teleconference if the members of the Parole
Board panel conducting the examination are able to
contemporaneously see the inmate and hear all of his or her remarks
and if the inmate is able to contemporaneously see each of the
members of the panel conducting the examination and hear all of the
members' remarks. The panel shall reach its own written
conclusions as to the desirability of releasing the inmate on
parole and the majority of the panel considering the release shall
must concur in the decision. The warden or superintendent shall
furnish all necessary assistance and cooperate to the fullest
extent with the Parole Board. All information, records and reports
received by the Parole Board are to shall be kept on permanent file.
(n) The Parole Board and its designated agents are at all
times to have access to inmates imprisoned in any state
correctional center institution or in any jail in this state and
may obtain any information or aid necessary to the performance of
its duties from other departments and agencies of the state or from
any political subdivision thereof of the state.
(o) The Parole board shall, if so requested by the Governor,
investigate and consider all applications for pardon, reprieve or
commutation and shall make recommendation thereon on the
applications to the Governor.
(p) Prior to making a recommendation for pardon, reprieve or
commutation and prior to releasing any inmate on parole, the Parole
Board shall notify the sentencing judge and prosecuting attorney at
least ten days before the recommendation or parole.
(q) Any person released on parole A parolee shall participate
as a condition of parole in the litter control program of the
county to which he or she is released to the extent directed by the
Parole Board, unless the board specifically finds that this
alternative service would be inappropriate.
(r) Except for the amendments to this section contained in
subdivision (4), subsection (b) and subsection (i) of this section
the amendments to this section enacted during the 2010 regular
session of the Legislature shall become effective on January 1, 2011.
NOTE: The purpose of this bill is provide an expedited
procedure for inmates to meet eligibility requirements for release
on parole of inmates, including inmates in regional jails that have
been committed to prison; establishes a program to expedite the
provision of
all services, treatment, evaluations, assessments and
programs, including a written parole release plan
, to be eligible
for parole; The bill also provides various methods to provide
components of the program at regional jails;. The Division of
Corrections is responsible for payment of costs for the program.
The bill also revises eligibility requirements for parole
generally.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§62-12-12b is new; therefore, it has been completely
underscored.