ENGROSSED
Senate Bill No. 263
(By Senators Holliday, Wiedebusch, Humphreys, Yoder,
Wagner, Dittmar, Minard and Anderson)
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[Originating in the Committee on the Judiciary;
reported February 3, 1994.]
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A BILL to amend and reenact article eleven-b, chapter sixty-two
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to short title;
applicability; definitions; home incarceration; period of
home incarceration; applicability; requirements for order
for home incarceration circumstances under which home
incarceration may not be ordered; home incarceration fees;
special fund; employment by county commission of home
incarceration supervisors; authority of supervisors;
offender responsible for certain expenses; violation of
order of home incarceration; procedures; penalties;
information to be provided law-enforcement agencies;
discretion of the court; provisions of article not
exclusive; and supervision of home incarceration by circuit
court.
Be it enacted by the Legislature of West Virginia:
That article eleven-b, chapter sixty-two of the code of WestVirginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-1. Short title.
This article may be cited as the "Home Incarceration Act".
§62-11B-2. Applicability.
This article applies to adult offenders and to juveniles who
have committed a delinquent act that would be a crime if
committed by an adult.
§62-11B-3. Definitions.
As used in this article:
(1) "Home" means the actual living area of the temporary or
permanent residence of an offender. The term includes, but is
not limited to, a hospital, health care facility, hospice, group
home, residential treatment facility and boarding house.
(2) "Monitoring device" means an electronic device that is:
(A) Limited in capability to the recording or transmitting
of information regarding an offender's presence or absence from
the offender's home;
(B) Minimally intrusive upon the privacy of the offender or
other persons residing in the offender's home; and
(C) Incapable of recording or transmitting:
(i) Visual images;
(ii) Oral or wire communications or any auditory sound; or
(iii) Information regarding the offender's activities while
inside the offender's home.
(3) "Offender" means any adult convicted of a crime
punishable by imprisonment or detention in a county jail or statepenitentiary; or a juvenile convicted of a delinquent act that
would be a crime punishable by imprisonment or incarceration in
the state penitentiary or county jail, if committed by an adult.
§62-11B-4. Home incarceration; period of home incarceration;
applicability.
(a) As a condition of probation or bail or as an alternative
sentence to another form of incarceration for any criminal
violation of this code over which a circuit court has
jurisdiction, a circuit court may order an offender confined to
the offender's home for a period of home incarceration. As an
alternative sentence to incarceration in jail, a magistrate may
order an adult offender convicted of any criminal violation under
this code over which a magistrate court has jurisdiction, be
confined to the offender's home for a period of electronically
monitored home incarceration:
Provided, That electronic
monitoring may not be required in a specific case if a circuit
court upon petition thereto finds by order that electronic
monitoring is not necessary.
(b) The period of home incarceration may be continuous or
intermittent, as the circuit court orders, or continuous except
as provided by section five of this article if ordered by a
magistrate. However, the aggregate time actually spent in home
incarceration may not exceed the term of imprisonment or
incarceration prescribed by this code for the offense committed
by the offender.
(c) A grant of home incarceration under this article
constitutes a waiver of any entitlement to deduction from a
sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code.
§62-11B-5. Requirements for order for home incarceration.
An order for home incarceration of an offender under section
four of this article shall include, but not be limited to, the
following:
(1) A requirement that the offender be confined to the
offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or
magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the
offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health
treatment, counseling or other treatment programs approved for
the offender by the circuit court or magistrate;
(D) Attending an educational institution or a program
approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a
place of worship;
(F) Participating in a community work release or community
service program approved for the offender by the circuit court,
in circuit court cases; or
(G) Engaging in other activities specifically approved for
the offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be
imposed if the circuit court or magistrate subsequently finds the
offender to have violated the terms and conditions in the order
of home incarceration.
(3) A requirement that the offender abide by a schedule,prepared by the probation officer in circuit court cases, or by
the supervisor or sheriff in magistrate court cases, specifically
setting forth the times when the offender may be absent from the
offender's home and the locations the offender is allowed to be
during the scheduled absences.
(4) A requirement that the offender is not to commit another
crime during the period of home incarceration ordered by the
circuit court or magistrate.
(5) A requirement that the offender obtain approval from the
probation officer or supervisor or sheriff before the offender
changes residence or the schedule described in subdivision (3) of
this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the
magistrate, an electronic monitoring device in the offender's
home, or on the offender's person, or both; and
(C) Electric service in the offender's home if use of a
monitoring device is ordered by the circuit court or anytime home
incarceration is ordered by the magistrate.
(7) A requirement that the offender pay a home incarceration
fee set by the circuit court or magistrate. If a magistrate
orders home incarceration for an offender, the magistrate shall
follow a fee schedule established by the supervising circuit
judge in setting the home incarceration fee.
(8) A requirement that the offender abide by other
conditions set by the circuit court or by the magistrate.
§62-11B-6. Circumstances under which home incarceration may not
be ordered.
(a) A circuit court or magistrate may not order home
incarceration for an offender unless the offender agrees to abide
by all of the requirements set forth in the court's order issued
under this article.
(b) A circuit court or magistrate may not order home
incarceration for an offender who is being held under a detainer,
warrant or process issued by a court of another jurisdiction.
(c) A magistrate may order home incarceration for an
offender only with electronic monitoring and only if the county
of the offender's home has an established program of electronic
monitoring that is equipped, operated and staffed by the county
supervisor or sheriff for the purpose of supervising participants
in a home incarceration program:
Provided, That electronic
monitoring may not be required in a specific case if a circuit
court upon petition thereto finds by order that electronic
monitoring is not necessary.
(d) A magistrate may not order home incarceration for an
offender convicted of a crime of violence against the person.
(e) Home incarceration shall not be available as a sentence
if the language of a criminal statute expressly prohibits its
application.
§62-11B-7. Home incarceration fees; special fund.
All home incarceration fees ordered by the circuit court
shall be paid to the circuit clerk, who shall monthly remit the
fees to the sheriff. All home incarceration fees ordered by a
magistrate shall be paid to the magistrate court clerk, who shall
monthly remit the fees to the county sheriff. The county sheriffshall establish a special fund designated the home incarceration
services fund, in which the sheriff shall deposit all home
incarceration fees remitted by the clerks. The county commission
shall appropriate money from the fund to administer a home
incarceration program, including the purchase of electronic
monitoring devices and other supervision expenses, and may as
necessary supplement the fund with additional appropriations.
§62-11B-7a. Employment by county commission of home
incarceration supervisors; authority of supervisors.
The county commission may employ one or more persons with
the approval of the circuit court and who shall be subject to the
supervision of the sheriff as a home incarceration supervisor or
may designate the county sheriff to supervise offenders ordered
to undergo home incarceration and to administer the county's home
incarceration program. Any person so supervising shall have
authority, equivalent to that granted to a probation officer
pursuant to section ten, article twelve of this chapter, to
arrest a home incarceration participant when reasonable cause
exists to believe that such participant has violated the
conditions of his or her home incarceration. Unless otherwise
specified, the use of the term "supervisor" in this article shall
refer to a home incarceration supervisor.
§62-11B-8. Offender responsible for certain expenses.
An offender ordered to undergo home incarceration under
section four of this article is responsible for providing his own
food, housing, clothing, medical care and other treatment
expenses. The offender is eligible to receive government
benefits allowable for persons on probation, parole or otherconditional discharge from confinement or incarceration.
§62-11B-9. Violation of order of home incarceration procedures;
penalties.
(a) If at any time during the period of home incarceration
there is reasonable cause to believe that a participant in a home
incarceration program has violated the terms and conditions of
the circuit court's home incarceration order, he or she shall be
subject to the procedures and penalties set forth in section ten,
article twelve of this chapter.
(b) If at any time during the period of home incarceration
there is reasonable cause to believe that a participant sentenced
to home incarceration by the circuit court has violated the terms
and conditions of the court's order of home incarceration and
said participant's participation was imposed as an alternative
sentence to another form of incarceration, said participant shall
be subject to the same procedures involving revocation as would
a probationer charged with a violation of the order of home
incarceration. Any participant under an order of home
incarceration shall be subject to the same penalty or penalties,
upon the circuit court's finding of a violation of the order of
home incarceration, as he or she could have received at the
initial disposition hearing:
Provided, That the participant
shall receive credit towards any sentence imposed after a finding
of violation for the time spent in home incarceration.
(c) If at any time during the period of home incarceration
there is reasonable cause to believe that a participant sentenced
to home incarceration by a magistrate has violated the terms and
conditions of the magistrate's order of home incarceration as analternative sentence to incarceration in jail, the supervising
authority may arrest the participant upon the obtaining of an
order or warrant and take the offender before a magistrate within
the county of the offense. The magistrate shall then conduct a
prompt and summary hearing on whether the participant's home
incarceration should be revoked. If it appears to the
satisfaction of the magistrate that any condition of home
incarceration has been violated, the magistrate may revoke the
home incarceration and order that the sentence of incarceration
in jail be executed. Any participant under an order of home
incarceration shall be subject to the same penalty or penalties,
upon the magistrate's finding of a violation of the order of home
incarceration, as the participant could have received at the
initial disposition hearing:
Provided, That the participant
shall receive credit towards any sentence imposed after a finding
of violation for the time spent in home incarceration.
§62-11B-10. Information to be provided law-enforcement agencies.
A probation department charged by a circuit court or a
supervisor or sheriff charged by a magistrate with supervision of
offenders ordered to undergo home incarceration shall provide all
law-enforcement agencies having jurisdiction in the place where
the probation department or the office of the supervisor or
sheriff is located with a list of offenders under home
incarceration supervised by the probation department, supervisor
or sheriff. The list must include the following information
about each offender:
(1) The offender's name, any known aliases, and the location
of the offender's home incarceration;
(2) The crime for which the offender was convicted;
(3) The date the offender's home incarceration expires; and
(4) The name, address and telephone number of the offender's
supervising probation officer or supervisor, as the case may be,
for home incarceration.
§62-11B-11. Discretion of the court; provisions of article not
exclusive.
Home incarceration pursuant to the provisions of this
article may be imposed at the discretion of the circuit court or
magistrate court as an alternative means of incarceration for any
offense. Except for offenses for which the penalty includes
mandatory incarceration, home incarceration shall not be
considered an exclusive means of alternative sentencing.
§62-11B-12. Supervision of home incarceration by circuit court.
Notwithstanding any provision of this code to the contrary,
in any case where a person has been ordered to home incarceration
where that person is not in the custody or control of the
division of corrections, the circuit court shall have the
authority of the board of probation and parole regarding the
release, early release or release on parole of the person.
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