Senate Bill No. 20
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
____________
[Introduced January 14, 1994; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections three, four, nine, ten-b,
twelve and fifteen, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to further amend said article by adding thereto
two new sections, designated sections three-a and ten-c; to
amend article five of said chapter by adding thereto a new
section, designated section seventeen-a; to amend and
reenact section fifteen, article three, chapter sixty-two of
said code; and to amend and reenact section thirteen,
article twelve of said chapter, all relating to the
definition of various crimes and the terms of incarceration
for said crimes; penalty for murder of second degree;
penalty for murder of a police officer, correctional officer
or correctional employee; voluntary manslaughter; penalty;
malicious or unlawful assault; assault; battery; penalties;
malicious assault; unlawful assault; battery and recidivism
of battery; assault on police officers, conservation
officers, county or state correctional officers and other
public safety officials; penalties; malicious assault;
unlawful assault; battery and recidivism of battery; assault
on state constitutional officers; penalties; robbery or
attempted robbery; bank robbery and assaults in committing
or attempting; penalties; assault, battery on school
employees; penalties; failure to comply with order or signal
of police officer; penalty; verdict and sentence in murder
cases; powers and duties of board; eligibility for parole;
and procedure for granting parole.
Be it enacted by the Legislature of West Virginia:
That sections three, four, nine, ten-b, twelve and fifteen,
article two, chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; that said article be further amended by adding thereto
two new sections, designated sections three-a and ten-c; that
article five of said chapter be amended by adding thereto a new
section, designated section seventeen-a; that section fifteen,
article three, chapter sixty-two of said code be amended and
reenacted; and that section thirteen, article twelve of said
chapter be amended and reenacted, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-3. Penalty for murder of second degree.
Murder of the second degree shall be punished by confinement
in the penitentiary not less than five fifteen nor more than
eighteen fifty years.
§61-2-3a. Penalty for murder of a police officer, correctional
officer or correctional employee.
Notwithstanding any provision of sections two and three of
this article to the contrary, and notwithstanding any provision
of section thirteen of article twelve of chapter sixty-two or
section fifteen of article three of chapter sixty-two to the
contrary, the penalty for the murder of any police officer,
correctional officer, or employee of the division of corrections,
whether such murder is of the first or second degree, shall be
punished by confinement in the penitentiary for life without
possibility of parole. As used in this section, a police officer
means any officer employed by the division of public safety, any
conservation officer employed by the division of natural
resources, any county law-enforcement employee or any police
officer employed by any city or municipality who is responsible
for the prevention or detection of crime and the enforcement of
the penal, traffic or highway laws of this state.
§61-2-4. Voluntary manslaughter; penalty.
Voluntary manslaughter shall be punished by confinement in
the penitentiary not less than one ten nor more than five twenty-
five years.
§61-2-9. Malicious or unlawful assault; assault; battery;
penalties.
(a) If any person maliciously shoot, stab, cut or wound any
person, or by any means cause him bodily injury with intent to
maim, disfigure, disable or kill, he shall, except where it is
otherwise provided, be guilty of a felony, and, upon conviction,shall be punished by confinement in the penitentiary not less
than two ten nor more than ten twenty-five years. If such act be
done unlawfully, but not maliciously, with the intent aforesaid,
the offender shall be guilty of a felony, and, upon conviction,
shall in the discretion of the court, either be confined in the
penitentiary not less than one five nor more than five fifteen
years. or be confined in jail not exceeding twelve months and
fined not exceeding five hundred dollars
(b) Assault. -- If any person unlawfully attempts to commit
a violent injury to the person of another or unlawfully commits
an act which places another in reasonable apprehension of
immediately receiving a violent injury, he shall be guilty of a
misdemeanor, and, upon conviction, shall be confined in jail for
not less than three months nor more than six months, or and fined
not more than one hundred thousand dollars. or both such fine
and imprisonment
(c) Battery. -- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with
the person of another or unlawfully and intentionally causes
physical harm to another person, he shall be guilty of a
misdemeanor, and, upon conviction, shall be confined in jail for
not less than six months nor more than twelve months, or and
fined not more than five hundred thousand dollars. or both such
fine and imprisonment If any person commits a second such
offense, then such person is guilty of a felony, and, upon
conviction, shall be confined in the penitentiary for a periodof not less than one year nor more than five years and fined not
more than ten thousand dollars.
§61-2-10b. Malicious assault; unlawful assault; battery and
recidivism of battery; assault on police officers,
conservation officers, county or state correctional
officers, and other public safety officials; penalties.
(a)
Malicious assault.
-- If any person maliciously shoots,
stabs, cuts or wounds or by any means causes bodily injury with
intent to maim, disfigure, disable or kill a police officer,
county correctional officer, or state correctional officer, or
other public safety official acting in his or her official
capacity and the person committing the malicious assault knows or
has reason to know that the victim is a police officer,
conservation officer, county correctional officer, or state
correctional officer, or other public safety official acting in
his or her official capacity, then the offender shall be guilty
of a felony, and, upon conviction, shall be punished by
confinement in the penitentiary not less than three ten nor more
than fifteen twenty years.
(b)
Unlawful assault.
-- If any person unlawfully but not
maliciously shoots, stabs, cuts or wounds or by any means causes
a police officer, conservation officer, county correctional
officer, state correctional officer, or other public safety
official acting in his or her official capacity or state
correctional officer bodily injury with intent to maim,
disfigure, disable or kill said officer or official and theperson committing the unlawful assault knows or has reason to
know that the victim is a police officer, conservation officer,
county correctional officer, or state correctional officer, or
other public safety official acting in his or her official
capacity, then the offender is guilty of a felony, and, upon
conviction, shall be confined to the penitentiary for a period of
not less than two five years nor more than five ten years.
(c)
Battery.
-- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with
a police officer, conservation officer, county correctional
officer, or state correctional officer, or other public safety
official acting in his or her official capacity, or unlawfully
and intentionally causes physical harm to a police officer,
conservation officer, county correctional officer, or state
correctional officer, or other public safety official acting in
such capacity, said person is guilty of a misdemeanor, and, upon
conviction thereof, shall be confined to the county or regional
jail for a period of not less than forty-eight hours six months
nor more than twelve months or and fined the sum of five hundred
thousand dollars. or both If any person commits a second such
offense, then such person is guilty of a misdemeanor, and, upon
conviction, shall be confined in the county or regional jail for
a period of not less than ten days nor more than twelve months.
Any person who commits a third violation of this section is
guilty of a felony, and, upon conviction, shall be confined in
the penitentiary for a period of not less than one year nor morethan five years or and fined not more than one ten thousand
dollars. or both
(d)
Assault.
-- If any person unlawfully attempts to commit
a violent injury to the person of a police officer, conservation
officer, county correctional officer, or state correctional
officer, or other public safety official, or unlawfully commits
an act which places a police officer, conservation officer,
county correctional officer, or state correctional officer, or
other public safety official acting in his or her official
capacity in reasonable apprehension of immediately receiving a
violent injury, he shall be guilty of a misdemeanor, and, upon
conviction, shall be confined in the county or regional jail for
not less than twenty-four hours three months nor more than six
months, or and fined not more than two hundred one thousand
dollars. or both such fine and imprisonment
(e)
Police officer and public safety official defined.
-- As
used in this section, a police officer means any officer employed
by the division of public safety, any conservation officer
employed by the division of natural resources, any county law-
enforcement agency employee or any police officer employed by any
city or municipality who is responsible for the prevention or
detection of crime and the enforcement of the penal, traffic or
highway laws of this state. As used in this section, a public
safety official means any county prosecutor or assistant county
prosecutor, any magistrate, any municipal judge, any professional
fireman, any volunteer fireman, or any emergency medicaltechnician. In interpreting the application of this section, it
shall not matter to any successful prosecution under this section
whether the police officer or public safety official was employed
in either a full-time or part-time capacity, or whether the
police officer or public safety official was under contract to
perform his or her duties.
§61-2-10c. Malicious assault; unlawful assault; battery and
recidivism of battery; assault on state constitutional
officers; penalties.
(a)
Malicious assault.
-- If any person maliciously shoots,
stabs, cuts or wounds or by any means causes bodily injury with
intent to maim, disfigure, disable or kill a state constitutional
officer acting in his or her official capacity and the person
committing the malicious assault knows or has reason to know that
the victim is a state constitutional officer acting in his or her
official capacity, then the offender shall be guilty of a felony,
and, upon conviction, shall be punished by confinement in the
penitentiary not less than ten nor more than twenty years.
(b)
Unlawful assault.
-- If any person unlawfully but not
maliciously shoots, stabs, cuts or wounds or by any means causes
a state constitutional officer acting in his or her official
capacity bodily injury with intent to maim, disfigure, disable or
kill said officer and the person committing the unlawful assault
knows or has reason to know that the victim is a state
constitutional officer acting in his or her official capacity,
then the offender is guilty of a felony, and, upon conviction,shall be confined to the penitentiary for a period of not less
than five years nor more than ten years.
(c)
Battery.
-- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with
a state constitutional officer acting in his or her official
capacity, or unlawfully and intentionally causes physical harm to
a state constitutional officer acting in such capacity, said
person is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined to the county or regional jail for a period of
not less than six months nor more than twelve months and fined
the sum of five thousand dollars. If any person commits a second
such offense, then such person is guilty of a felony, and, upon
conviction, shall be confined in the penitentiary for a period of
not less than one year nor more than five years and fined not
more than ten thousand dollars.
(d)
Assault.
-- If any person unlawfully attempts to commit
a violent injury to the person of a state constitutional officer
or unlawfully commits an act which places a state constitutional
officer acting in his or her official capacity in reasonable
apprehension of immediately receiving a violent injury, he shall
be guilty of a misdemeanor, and, upon conviction, shall be
confined in the county or regional jail for not less than three
months nor more than six months, and fined not more than one
thousand dollars.
(e)
State constitutional officer defined.
-- As used in this
section, a state constitutional officer means any state officialwhose title, powers or duties are defined in the provisions of
the constitution of West Virginia, as ratified in the year one
thousand eight hundred seventy-two, together with the several
ratified amendments to that constitution.
§61-2-12. Robbery or attempted robbery; bank robbery and
assaults in committing or attempting; penalties.
If any person commit, or attempt to commit, robbery by
partial strangulation or suffocation, or by striking or beating,
or by other violence to the person, or by the threat or
presenting of firearms, or other deadly weapon or instrumentality
whatsoever, he shall be guilty of a felony, and, upon conviction,
shall be confined in the penitentiary not less than ten fifteen
years nor more than fifty years. If any person commit, or
attempt to commit, a robbery in any other mode or by any other
means, except as provided for in the succeeding paragraph of this
section, he shall be guilty of a felony, and, upon conviction,
shall be confined in the penitentiary not less than five nor more
than eighteen years.
If any person (a) by force and violence, or by putting in
fear, feloniously takes, or feloniously attempts to take, from
the person or presence of another any property or money or any
other thing of value belonging to, or in the care, custody,
control, management or possession of, any bank, he shall be
guilty of a felony, and, upon conviction, shall be confined in
the penitentiary not less than ten nor more than twenty years;
and if any person (b), in committing, or in attempting to commit,any offense defined in the preceding clause (a) of this
paragraph, assaults any person, or puts in jeopardy the life of
any person by the use of a dangerous weapon or device, he shall
be guilty of a felony, and, upon conviction, shall be confined in
the penitentiary not less than ten years nor more than twenty-
five years.
§61-2-15. Assault, battery on school employees; penalties.
(a) If any person commits an assault by unlawfully
attempting to commit a violent injury to the person of a school
employee or by unlawfully committing an act which places a school
employee in reasonable apprehension of immediately receiving a
violent injury, he shall be guilty of a misdemeanor, and, upon
conviction, shall be confined in jail not less than five days nor
more than six months and fined not less than fifty dollars nor
more than one hundred dollars.
(b) If any person commits a battery by unlawfully and
intentionally making physical contact of an insulting or
provoking nature with the person of a school employee or by
unlawfully and intentionally causing physical harm to a school
employee, he shall be guilty of a misdemeanor, and, upon
conviction, shall be confined in jail not less than ten days nor
more than twelve months and fined not less than one hundred
dollars nor more than five hundred dollars.
(a)
Malicious assault.
-- If any person maliciously shoots,
stabs, cuts or wounds or by any means causes bodily injury with
intent to maim, disfigure, disable or kill a school employeeacting in his or her official capacity and the person committing
the malicious assault knows or has reason to know that the victim
is a school employee acting in his or her official capacity, then
the offender shall be guilty of a felony, and, upon conviction,
shall be punished by confinement in the penitentiary not less
than ten nor more than twenty years.
(b)
Unlawful assault.
-- If any person unlawfully but not
maliciously shoots, stabs, cuts or wounds or by any means causes
a school employee acting in his or her official capacity bodily
injury with intent to maim, disfigure, disable or kill said
employee and the person committing the unlawful assault knows or
has reason to know that the victim is a school employee acting in
his or her official capacity, then the offender is guilty of a
felony, and, upon conviction, shall be confined to the
penitentiary for a period of not less than five years nor more
than ten years.
(c)
Battery.
-- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with
a school employee acting in his or her official capacity, or
unlawfully and intentionally causes physical harm to a school
employee acting in such capacity, said person is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined to
the county or regional jail for a period of not less than six
months nor more than twelve months and fined the sum of five
thousand dollars. If any person commits a second such offense,
then such person is guilty of a felony, and, upon conviction,shall be confined in the penitentiary for a period of not less
than one year nor more than five years and fined not more than
ten thousand dollars.
(d)
Assault.
-- If any person unlawfully attempts to commit
a violent injury to the person of a school employee or unlawfully
commits an act which places a school employee acting in his or
her official capacity in reasonable apprehension of immediately
receiving a violent injury, he shall be guilty of a misdemeanor,
and, upon conviction, shall be confined in the county or regional
jail for not less than three months nor more than six months, and
fined not more than one thousand dollars.
(c) (e) For the purposes of this section, "school employee"
means a person employed by a county board of education whether
employed on a regular full-time basis, a part-time basis, an
hourly basis, a contract basis, or otherwise if, at the time of
the commission of any offense provided for in this section, such
person is engaged in the performance of his or her duties or is
commuting to or from his or her place of employment. For the
purposes of this section, a "school employee" shall be deemed to
include a student teacher.
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-17a. Failure to comply with order or signal of police
officer; penalty.
(a) No person shall fail to comply with any lawful order or
direction of any police officer invested with authority to
direct, control or regulate traffic.
(b) No person shall operate a motor vehicle so as willfully
to elude or flee a police officer after receiving a visible or
audible signal from a police officer to bring his motor vehicle
to a stop.
(c) Whoever violates this section is guilty of failure to
comply with an order or signal of a police officer. A violation
of paragraph (a) of this section is a misdemeanor punishable by
one to six months in a county or regional jail and a fine of one
thousand dollars. A violation of paragraph (b) of this section
is a misdemeanor punishable by one to six months in a county or
regional jail and a fine of one thousand dollars, except that a
violation of paragraph (b) of this section is a felony punishable
by one to three years and a fine of five thousand dollars if the
jury or judge as trier of fact finds any one of the following by
proof beyond a reasonable doubt:
(i) In committing the offense, the offender was fleeing
immediately after the commission of a felony; or
(ii) The operation of the motor vehicle by the offender was
a proximate cause of serious physical harm to persons or
property; or
(iii) The operation of the motor vehicle by the offender
caused a substantial risk of serious physical harm to persons or
property.
(d) As used in this section, "police officer" has the same
meaning as in section ten-b of article two of chapter sixty-one
of this code.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 3. TRIAL OF CRIMINAL CASES.
§62-3-15. Verdict and sentence in murder cases.
If a person indicted for murder be found by the jury guilty
thereof, they shall in their verdict find whether he is guilty of
murder of the first degree or second degree. If the person
indicted for murder is found by the jury guilty thereof, and if
the jury find in their verdict that he is guilty of murder of the
first degree, or if a person indicted for murder pleads guilty of
murder of the first degree, he shall be punished by confinement
in the penitentiary for life, and he, notwithstanding the
provisions of article twelve, chapter sixty-two of this code,
shall not be eligible for parole: Provided, That the jury may,
in their discretion, except when the murder is that of a police
officer as defined in section three-a of article two of chapter
sixty-one of this code, recommend mercy, and if such
recommendation is added to their verdict, such person shall be
eligible for parole in accordance with the provisions of said
article twelve: Provided, however, That if the accused pleads
guilty of murder of the first degree, the court may, in its
discretion, except when the murder is that of a police officer as
defined in section three-a of article two of chapter sixty-one of
this code, provide that such person shall be eligible for parole
in accordance with the provisions of said article twelve, and, if
the court so provides, such person shall be eligible for parole
in accordance with the provisions of said article twelve in thesame manner and with like effect as if such person had been found
guilty by the verdict of a jury and the jury had recommended
mercy.
ARTICLE 12. PROBATION AND PAROLE.
§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 will be
subserved thereby, and subject to the limitations hereinafter
provided, shall release any such prisoner on parole for such
terms and upon such conditions as are provided by this article.
Any prisoner of a penitentiary of this state, 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 seven
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 seven
years of his or her sentence or one third of his or her definiteterm 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 ofAugust 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 twenty 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 thirty years. In the case of a
person sentenced to any penal institution of this state, 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 so eligible, which reconsideration and review
shall be by the entire board. If parole be denied, the prisoner
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 boardshall 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.
(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 for release on
parole, the board of parole shall have before it an authentic
copy of or report on the prisoner's current criminal record as
provided through the department of public safety of West
Virginia, the United States department of justice or otherreliable criminal information sources and written reports of the
warden or superintendent of the penitentiary, as the case may be,
to which such prisoner is sentenced:
(1) On the prisoner's conduct record while in prison,
including a detailed statement showing any and all infractions of
prison rules by the prisoner and the nature and extent of
discipline and punishment administered therefor;
(2) On improvement or other changes noted in the prisoner's
mental and moral condition while in prison, including a statement
expressive of the prisoner'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 and toward
the crime for which he or she is under sentence and his or her
previous criminal record;
(3) On the prisoner's industrial record while in prison,
showing the nature of his or her prison work or occupation and
the average number of hours per day he or she has been employed
in prison industry and recommending the nature and kinds of
employment which he or she is best fitted to perform and in which
the prisoner is most likely to succeed when he or she leaves
prison;
(4) On physical, mental and psychiatric examinations of the
prisoner 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 whennot available or not applicable as to any prisoner 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 a
prisoner who is incarcerated because such prisoner 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 chapter
sixty-one, 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 itsdeliberations. 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 on parole, the
board of parole shall arrange for the prisoner 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 on
parole. The warden or superintendent shall furnish all necessary
assistance and cooperate to the fullest extent with the 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 or in any city or county jail in this
state, and shall have the power to obtain any information or aid
necessary to the performance of their 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 releasingany 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.
NOTE: The purpose of this bill is to increase the penalty
for second degree murder, for voluntary manslaughter; for
malicious or unlawful assault, assault and battery; for assault
or battery of police officers, conservation officers, county or
state correctional officers and other public safety officials;
for robbery or attempted robbery; and for assault or battery of
a school employee. New crimes and penalties are created for the
murder of a police officer, correctional officer or correctional
employee; for assault or battery of state constitutional
officers; and for failure to comply with the order or signal of
a police officer. The minimum sentence that must be served by
persons sentenced for life before being eligible for parole has
been doubled.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§61-2-3a and 10c and §61-5-17a are new; therefore,
strike-throughs and underscoring have been omitted.