ENGROSSED
Senate Bill No. 166
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
____________
[Introduced January 16, 2006; referred to the Committee
on Government Organization.]
____________
A BILL to amend and reenact §62-12-12, §62-12-13, §62-12-18,
§62-12-19, §62-12-23 and §62-12-24 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §62-12-12a, all relating to
the West Virginia Parole Board; providing for the appointment,
powers and duties of the West Virginia Parole Board; providing
for the appointment of the Chairperson of the West Virginia
Parole Board by the Governor; providing for the consideration
of parole and parole revocation by panels of the board; and
providing for panels of the board to conduct parole
interviews, consider parolees for discharge from parole and
hold any other hearings authorized by the board.
Be it enacted by the Legislature of West Virginia:
That §62-12-12, §62-12-13, §62-12-18, §62-12-19, §62-12-23 and
§62-12-24 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §62-12-12a, all to read as
follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-12. Parole board generally.
There shall be a state board of parole, known as the "West
Virginia Parole Board". The board shall consist of
five nine
members, each of whom shall have been a resident of this state for
at least five consecutive years prior to his or her appointment.
No more than
three five of the board members may at any one time
belong to the same political party. The board shall be appointed
by the Governor, by and with the advice and consent of the Senate.
Appointments following the effective date of this section shall be
made in such a manner that each congressional district is
represented and so that no more than
two four and no less than two
members of the board reside in any one congressional district.
Each member of the board shall have a degree in criminal justice or
like experience and academic training and shall be otherwise
competent to perform the duties of his or her office. The members
shall be appointed for overlapping terms of six years. Any member
qualified under this section is eligible for reappointment. The
members of the board shall devote their full time and attention to
their board duties.
Any single member of the board is empowered to
hold any hearing provided for in this article, where a transcript
of the hearing, including exhibits and documentary evidence, and the recommendation of the member holding the hearing is submitted
to the board for decision. The Governor shall appoint one of the
nine appointed members to serve as chairperson at the Governor's
will and pleasure.
§62-12-12a. Parole board panels.
(a) The board shall sit in panels of three members for the
purpose of conducting hearings and making determinations concerning
the release of any inmate on parole, conducting hearings and making
determinations regarding the revocation of parole, considering any
eligible parolee for release from further supervision and discharge
from parole, conducting parole interviews and conducting any other
hearing provided for in this article. Membership on each panel
shall be appointed on a rotating basis by the chairperson of the
board. Two members of each panel shall constitute a quorum for the
transaction of official business.
(b) When the board sits in panels as herein authorized, each
panel shall act in the same manner and under the same authority as
the full board. All authority, duties, powers and responsibilities
of the board on any matter brought before the panel for hearing
shall be exercised by the panel as though heard and decided by the
full board. Decisions of each panel shall constitute a decision of
the board. All procedures of the board relating to the conduct of
hearings shall apply to hearings before the panels of the board.
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.
(a) The board of parole, 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, 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 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, except that in no case
is any person who committed, or attempted to commit a felony with
the use, presentment or brandishing of a firearm, 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 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
section 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. No person is ineligible for parole under the provisions of this subdivision
because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm unless such fact
is clearly stated and included in the indictment or presentment by
which the person was charged and was either: (i) Found by the
court at the time of trial upon a plea of guilty or nolo
contendere; or (ii) found 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 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.
(B) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one:
(I) Apply to all applicable offenses occurring on or after the
first day of August of that year;
(ii) Apply with respect to the contents of any indictment or
presentment returned on or after the first day of August 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 the first day of August 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 notice shall state
with particularity the grounds upon which the finding will be
sought as fully as such grounds are otherwise required to be stated
in an indictment, unless the grounds therefor 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 cases the prior provisions of this section
apply and are construed without reference to the amendments.
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 submitted to the 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, the parole
release plan having been approved by the Commissioner of
Corrections or his or her authorized representative; and
(5) Has satisfied the 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 serving a life sentence, no
person who has been previously twice convicted of a felony may 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.
No person sentenced for life may be paroled until he or she has
served ten years, and no person sentenced for life who has been
previously twice convicted of a felony may be paroled until he or
she has served fifteen years:
Provided, That no person convicted
of first degree murder for an offense committed on or after the
tenth day of June, one thousand nine hundred ninety-four, is
eligible for parole until he or she has served fifteen years.
(d) In the case of a person sentenced to any state
correctional center, it is the duty of the board, as soon as a
person becomes eligible, to consider the advisability of his or her
release on parole.
(e) If, upon consideration, parole is denied, the board shall
promptly notify the inmate of the denial. The board shall, at the
time of denial, notify the person of the month and year he or she
may apply for reconsideration and review. The board shall at least
once a year reconsider and review the case of every inmate who was
denied parole and is still eligible:
Provided, That the board may
reconsider and review parole eligibility any time within three
years following the denial of parole of a person serving a life sentence.
(f) Any person serving a sentence on a felony conviction who
becomes eligible for parole consideration prior to being
transferred to a state correctional center may make written
application for parole. The terms and conditions for parole
consideration established by this article apply to such inmates.
(g) The 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
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) The Division of Corrections is charged with the duty of
supervising 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.
(i) (1) When considering an inmate of a state correctional
center for release on parole, the parole board
panel considering
the parole is to 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
other reliable criminal information sources and written reports of
the warden or superintendent of the state correctional center to which such inmate is sentenced:
(i) 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;
(ii) 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;
(iii) 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;
(iv) On physical, mental and psychiatric examinations of the
inmate conducted, insofar as practicable, within the two months
next preceding parole consideration by the board.
(2) The 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 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 board
panel may not waive the
report required by this subsection and the report is to include a
study and diagnosis 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 during the
study or diagnosis may be made available to any law-enforcement
agency, or other party without that person'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. 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.
(j) Before releasing any inmate on parole, the board of parole
shall arrange for the inmate to appear in person before
at least
three members of the board a parole board panel and the
board panel
may examine and interrogate him or her on any matters pertaining to
his or her parole, including reports before the board made pursuant
to the provisions hereof:
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
parole board
panel conducting the examination and hear all of the members'
remarks. The
board panel shall reach its own written conclusions
as to the desirability of releasing the inmate on parole and the
majority of the
board members panel considering the release shall
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 board are to be kept on permanent file.
(k) The board and its designated agents are at all times to
have access to inmates imprisoned in any state correctional center
or in any city, county or regional jail in this state and shall
have the power to 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.
(l) The board shall, if so requested by the Governor, investigate and consider all applications for pardon, reprieve or
commutation and shall make recommendation thereon to the Governor.
(m) Prior to making a recommendation for pardon, reprieve or
commutation and prior to releasing any inmate on parole, the board
shall notify the sentencing judge and prosecuting attorney at least
ten days before the recommendation or parole.
(n) Any person released on parole shall participate as a
condition of parole in the litter control program of the county to
the extent directed by the board, unless the board specifically
finds that this alternative service would be inappropriate.
§62-12-18. Period of parole; discharge.
The period of parole shall be the maximum of any sentence,
less deductions for good conduct and work as provided by law, for
which the paroled inmate, at the time of release, was subject to
imprisonment under his or her definite or indeterminate sentence,
as the case may be:
Provided, That any time after a parolee has
been on parole for a period of one year from the date of his or her
release,
a panel of the board may, when in its judgment the ends of
parole have been attained and the best interests of the state and
the parolee will be served thereby, release the parolee from
further supervision and discharge him or her from parole:
Provided, however, That no inmate sentenced to serve a life term of
imprisonment and released on parole shall be discharged from
supervision and parole in a period less than five years from the
date of his or her release on parole.
No parolee who has violated the terms of his or her release on
parole by confession to, or being convicted of, in any state of the
United States, the District of Columbia or the territorial
possessions of the United States, the crime of treason, murder,
aggravated robbery, first degree sexual assault, second degree
sexual assault, a sexual offense against a minor, incest or
offenses with the same essential elements if known by other terms
in other jurisdictions shall be discharged from parole. A parolee
serving a sentence in any correctional facility of another state or
the United States may, unless incarcerated for one of the above
enumerated crimes, be discharged from parole while so serving his
or her sentence in said correctional facility or be continued on
parole or returned to West Virginia as a parole violator, in the
discretion of the parole board.
§62-12-19. Violation of parole.
(a) If at any time during the period of parole there is
reasonable cause to believe that the parolee has violated any of
the conditions of his or her release on parole, the parole officer
may arrest him or her with or without an order or warrant, or the
Commissioner of Corrections may issue a written order or warrant
for his or her arrest, which written order or warrant is sufficient
for his or her arrest by any officer charged with the duty of
executing an ordinary criminal process. The commissioner's written
order or warrant delivered to the sheriff against the paroled
prisoner shall be a command to keep custody of the parolee for the
jurisdiction of the Division of Corrections and during the period of custody, the parolee may be admitted to bail by the court before
which the parolee was sentenced. If the parolee is not released on
a bond, the costs of confining the paroled prisoner shall be paid
out of the funds appropriated for the Division of Corrections.
(b) When a parolee is under arrest for violation of the
conditions of his or her parole, he or she shall be given a prompt
and summary hearing
before a panel of the board, at which the
parolee and his or her counsel are given an opportunity to attend.
If at the hearing it appears to the satisfaction of the
Board panel
that the parolee has violated any condition of his or her release
on parole, or any rules or conditions of his or her supervision,
the
Board panel may revoke his or her parole and may require him or
her to serve in prison the remainder or any portion of his or her
maximum sentence for which, at the time of his or her release, he
or she was subject to imprisonment:
Provided, That if the
violation of the conditions of parole or rules for his or her
supervision is not a felony as set out in section eighteen of this
article, the
Board panel may, if in its judgment the best interests
of justice do not require revocation, reinstate him or her on
parole. The Division of Corrections shall effect release from
custody upon approval of a home plan. Notwithstanding any
provision of this code to the contrary, when reasonable cause has
been found to believe that a parolee has violated the conditions of
his or her parole but the violation does not constitute felonious
conduct, the commissioner may, in his or her discretion and with
the written consent of the parolee, allow the parolee to remain on
parole with additional conditions or restrictions. The additional conditions or restrictions may include, but are not limited to,
participation in any program described in subsection (d), section
five, article eleven-c of this chapter. Compliance by the parolee
with the conditions of parole precludes revocation of parole for
the conduct which constituted the violation. Failure of the
parolee to comply with the conditions or restrictions and all other
conditions of release is an additional violation of parole and the
parolee may be proceeded against under the provisions of this
section for the original violation as well as any subsequent
violations.
(c) When a parolee has violated the conditions of his or her
release on parole by confession to, or being convicted of, any of
the crimes set forth in section eighteen of this article, he or she
shall be returned to the custody of the Division of Corrections to
serve the remainder of his or her maximum sentence, during which
remaining part of his or her sentence he or she is ineligible for
further parole.
(d) Whenever the parole of a paroled prisoner has been
revoked, the commissioner shall, upon receipt of the
Board's
panel's written order of revocation, convey and transport the
paroled prisoner to a state correctional institution. A paroled
prisoner whose parole has been revoked shall remain in custody of
the sheriff until delivery to a corrections officer sent and duly
authorized by the commissioner for the removal of the paroled
prisoner to a state penal institution; the cost of confining the
paroled prisoner shall be paid out of the funds appropriated for
the Division of Corrections.
(e) When a paroled prisoner is convicted of, or confesses to,
any one of the crimes enumerated in section eighteen of this
article, it is the duty of the board to cause him or her to be
returned to this state for a summary hearing as provided by this
article. Whenever a parolee has absconded supervision, the
commissioner shall issue a warrant for his or her apprehension and
return to this state for the hearing provided for in this article:
Provided, That the
Board panel considering revocation may, if it
determines the best interests of justice do not require revocation,
cause the paroled absconder to be reinstated to parole.
(f) A warrant filed by the commissioner shall stay the running
of his or her sentence until the parolee is returned to the custody
of the Division of Corrections and physically in West Virginia.
(g) Whenever a parolee who has absconded supervision or has
been transferred out of this state for supervision pursuant to
section one, article six, chapter twenty-eight of this code is
returned to West Virginia due to a violation of parole and costs
are incurred by the Division of Corrections, the commissioner may
assess reasonable costs from the parolee's inmate funds or the
parolee as reimbursement to the Division of Corrections for the
costs of returning him or her to West Virginia.
(h) Conviction of a felony for conduct occurring during the
period of parole is proof of violation of the conditions of parole
and the hearing procedures required by the provisions of this
section are inapplicable.
(i) The Commissioner of the Division of Corrections may issue
subpoenas for persons and records necessary to prove a violation of the terms and conditions of a parolee's parole either at a
preliminary hearing or at a final hearing before
a panel of the
Parole Board. The subpoenas shall be served in the same manner
provided in the Rules of Criminal Procedure. The subpoenas may be
enforced by the commissioner through application or petition of the
commissioner to the circuit court for contempt or other relief.
§62-12-23. Notification of parole hearing; victim's right to be
heard; notification of release on parole.
(a) Following the sentencing of a person who has been
convicted of murder, aggravated robbery, sexual assault in the
first or second degree, kidnapping, child abuse resulting in
injury, child neglect resulting in injury, arson or a sexual
offense against a minor, the prosecuting attorney who prosecuted
the offender shall prepare a "Parole Hearing Notification Form".
This form shall contain the following information:
(1) The name of the county in which the offender was
prosecuted and sentenced;
(2) The name of the court in which the offender was prosecuted
and sentenced;
(3) The name of the prosecuting attorney or assistant
prosecuting attorney who prosecuted the offender;
(4) The name of the judge who presided over the criminal case
and who sentenced the offender;
(5) The names of the law-enforcement agencies and officers who
were primarily involved with the investigation of the crime for
which the offender was sentenced; and
(6) The names, addresses and telephone numbers of the victims of the crime for which the offender was sentenced or the names,
addresses and telephone numbers of the immediate family members of
each victim of the crime, including, but not limited to, each
victim's spouse, father, mother, brothers and sisters.
(b) The prosecuting attorney shall retain the original of the
"Parole Hearing Notification Form" and shall provide copies of it
to the circuit court which sentenced the offender, the parole
board, the Commissioner of Corrections and to all persons whose
names and addresses are listed on the "Parole Hearing Notification
Form".
(c) At least forty-five days prior to the date of a parole
hearing, the parole board shall notify all persons who are listed
on the "Parole Hearing Notification Form" of the date, time and
place at which a parole hearing will be held. Such notice shall be
sent by certified mail, return receipt requested. The notice shall
state that the victims of the crime have the right to submit a
written statement to the parole board and to attend the parole
hearing to be heard regarding the propriety of granting parole to
the prisoner. The notice shall also state that only the victims
may submit written statements and speak at the parole hearing
unless a victim is deceased, is a minor or is otherwise
incapacitated.
(d) The
parole board panel considering the parole shall
inquire during the parole hearing as to whether the victims of the
crime or their representatives, as provided in this section, are
present. If so, the
parole board panel shall permit those persons
to speak at the hearing regarding the propriety of granting parole for the prisoner.
(e) If the
parole board panel grants parole, it shall
immediately set a date on which the prisoner will be released.
Such date shall be no earlier than thirty days after the date on
which parole is granted. On the date on which parole is granted,
the parole board shall notify all persons listed on the "Parole
Hearing Notification Form" that parole has been granted and that
the prisoner will be released on a particular date. A written
statement of reasons for releasing the prisoner, prepared pursuant
to subdivision (4), subsection (b), section thirteen of this
article, shall be provided upon request to all persons listed on
the "Parole Hearing Notification Form".
§62-12-24. Request to continue for good cause and timely notice
required.
(a) Any inmate scheduled for a parole interview shall, if he
or she desires to continue the interview, file with the
institutional parole officer a written waiver of his or her right
to an interview on the date set on a form provided by the
commissioner of corrections at least thirty days prior to the
interview date. A copy of the waiver shall be supplied to the
board of parole.
(b) The board shall propose for promulgation a legislative
rule pursuant to article
thirty three, chapter twenty-nine-a of
this code setting forth criteria constituting emergency
circumstances where a waiver of interview filed less than thirty
days prior to the scheduled interview shall constitute good cause
for a continuance.
(c) Any inmate failing to appear for his or her scheduled
parole interview who has not waived his or her interview pursuant
to subsection (a) or (b) of this section shall be deemed to have
waived his or her right to a parole interview for a period of
twelve months from the date of the interview at which he or she
failed to appear. The
board of parole panel conducting the
interview shall have discretion to reset the interview with notice
to the inmate and any other person or persons entitled by law to
notice, prior to the expiration of the twelve-month waiver period.
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