ENGROSSED
Senate Bill No. 292
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning,
Hunter, Schoonover, Snyder, White, Buckalew,
Deem, Kimble and Scott)
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[Originating in the Committee on the Judiciary;
reported March 11, 1997.]
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A BILL to amend and reenact sections twelve, thirteen and eighteen,
article twelve, chapter sixty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating generally to the parole board; providing that no
more than two board members may be from the same congressional
district; providing that the parole board may designate,
within a three-year period, when inmates serving life
sentences may be reconsidered for parole; clarifying that
convicted felons who become eligible for parole consideration
while still in jail will be considered by the parole board;
including education obtained while in custody in the
information considered by the parole board; adding certain
offenses to those which disqualify a parole violator from
being discharged from parole; and cleaning up archaic
language.
Be it enacted by the Legislature of West Virginia:
That sections twelve, thirteen and eighteen, article twelve,
chapter sixty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, 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 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 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 one two members of the board
resides 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.
§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 prisoner inmate will be
subserved thereby, and subject to the limitations hereinafter
provided, shall release any such prisoner inmate on parole for such
terms and upon such conditions as are provided by this article.
Any prisoner inmate of a penitentiary of this state state
correctional center, to be eligible for parole:
(1) (A) Shall have served the minimum term of his or her
indeterminate sentence, or shall have served one fourth of his or
her definite term sentence, as the case may be, except that in no
case shall any person who committed, or attempted to commit a
felony with the use, presentment or brandishing of a firearm, be
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, shall not be 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 shall be the
greater. Nothing in this section shall apply 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 such 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 such 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" shall mean
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) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(ii) Shall 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) Shall 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 such 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 shall give 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 such finding
shall 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;
(iv) Shall not apply with respect to cases not affected by
such amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
amendment.
Insofar as such amendments relate to mandatory sentences
restricting the eligibility for parole, all such matters requiring
such sentence shall be proved beyond a reasonable doubt in all
cases tried by the jury or the court.
(2) Shall not be under punishment or in solitary confinement
for any infraction of prison rules;
(3) Shall have 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) Shall have 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, said
parole release plan having been approved by the commissioner of
corrections or his or her authorized representative;
(5) Shall have satisfied the board that if released on parole
he or she will not constitute a danger to the community.
Except in the case of one 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. In the case of a person sentenced to any
penal institution of this state state correctional center, it shall
be the duty of the board, as soon as such person becomes eligible,
to consider the advisability of his or her release on parole. If,
upon such consideration, parole be denied, the board shall at least
once a year reconsider and review the case of every prisoner inmate
so eligible, which reconsideration and review shall be by the
entire at least three members of the board. 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. The board shall, at the time of denial, notify the
person of the month and year they may apply for reconsideration and
review. If parole be denied, the prisoner inmate shall be promptly
notified.
(b) In the case of any person sentenced to or confined under
sentence in any city or county jail in this state, the board shall
act only upon written application for parole. If such jail
prisoner is under sentence on a felony conviction, the provisions
hereof relating to penitentiary prisoners shall apply to and
control his or her release on parole. If such person is serving
time on a misdemeanor conviction, he or she is eligible for parole
consideration, upon receipt of his or her written parole
application and after time for probation release by the sentencing
court or judge has expired. 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 shall be applied
to such inmates.
(c) The board shall, with the approval of the governor, adopt
rules and regulations governing the procedure in the granting of
parole. No provision of this article and none of the rules and
regulations adopted hereunder are intended or shall 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.
The board shall be 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.
(d) When considering a penitentiary prisoner an inmate of a
state correctional center for release on parole, the parole board
of parole shall have before it an authentic copy of or report on
the prisoner's inmate's current criminal record as provided through
the department of public safety of 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 penitentiary, state correctional center as
the case may be, to which such prisoner inmate is sentenced:
(1) On the prisoner's inmate's conduct record while in prison
custody, including a detailed statement showing any and all
infractions of prison disciplinary rules by the prisoner inmate and
the nature and extent of discipline and punishment administered
therefor;
(2) On improvement or other changes noted in the prisoner's
inmate's mental and moral condition while in prison custody, including a statement expressive of the prisoner's 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
prisoner inmate and toward the crime for which he or she is under
sentence and his or her previous criminal record;
(3) On the prisoner's inmate's industrial record while in
prison, custody which shall include: showing The nature of his or
her prison work, or occupation or education; and the average number
of hours per day he or she has been employed or in class in prison
industry while in custody and recommending a recommendation as to
the nature and kinds of employment which he or she is best fitted
to perform and in which the prisoner inmate is most likely to
succeed when he or she leaves prison;
(4) On physical, mental and psychiatric examinations of the
prisoner inmate conducted, insofar as practicable, within the two
months next preceding parole consideration by the board.
The board may waive the requirement of any such report when
not available or not applicable as to any prisoner inmate
considered for parole but, in every such case, shall enter in the
record thereof its reason for such waiver: Provided,
That in the
case of an prisoner inmate who is incarcerated because such
prisoner 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, chapter sixty-one of this code, the board may
not waive the report required by this subsection and the report
shall include a study and diagnosis which shall include 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 such study or diagnosis shall 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 such information disclosed shall indicate the intention or
plans of the parolee to do harm to any person, animal, institution,
or to property. Progress reports of outpatient treatment shall be
made at least every six months to the parole officer supervising
such 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. The board shall also notify the victim, or the
parents or guardian of the victim if the victim is still a minor,
of the person being considered for parole in such a case.
Before releasing any penitentiary prisoner inmate on parole,
the board of parole shall arrange for the prisoner inmate to appear
in person before the board and the board 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. The board shall reach its own written
conclusions as to the desirability of releasing such prisoner
inmate on parole. The warden or superintendent shall furnish all
necessary assistance and cooperate to the fullest extent with the
parole board of parole. All information, records and reports
received by the board shall be kept on permanent file.
The board and its designated agents shall at all times have
access to inmates imprisoned in any penal or correctional
institutions of this state state correctional center or in any
city, or county or regional jail in this state, and shall have the
power to obtain any information or aid necessary to the performance
of their its duties from other departments and agencies of the
state or from any political subdivision thereof.
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.
Prior to making such recommendation and prior to releasing any
penitentiary person on parole, the board shall notify the
sentencing judge and prosecuting attorney at least ten days before
such recommendation or parole. 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 prisoner 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
paroled prisoner parolee has been on parole for a period of one
year from the date of his or her release, the board may, when in
its judgment the ends of parole have been attained and the best
interests of the state and the paroled prisoner parolee will be
served thereby, release the parolee from further supervision and
discharge him or her from parole: Provided, however, That no
prisoner 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 prisoner on parole 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, armed aggravated robbery, rape,, first degree
sexual assault, second degree sexual assault, sodomy, or incest, or
offenses with the same essential elements if known by other terms
in other jurisdictions shall be discharged from parole. A paroled prisoner parolee serving a sentence in any penitentiary
correctional facility of another state or the United States may,
except in the enumerated crimes, be discharged from parole while so
serving his or her sentence in said penitentiary correctional
facility, or be continued on parole or returned to West Virginia as
a parole violator, in the discretion of the parole board.
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(NOTE: The purpose of this bill is to provide that no more
than two parole board members may be from the same congressional
district; allow the board to reconsider persons denied parole who
are serving life sentences within three years of denial rather than
each year; clarify that the parole board will consider convicted
felons who become eligible for parole while in jail but will not
consider persons who are seeking probation nor misdemeanants; and
clarifying the crimes which prohibit parole violators being
discharged from parole while serving the new sentence.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)