ENROLLED
Senate Bill No. 292
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning,
Hunter, Schoonover, Snyder, White, Buckalew,
Deem, Kimble and Scott)
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[Passed April 11, 1997; in effect ninety days from passage.]
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AN ACT 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 no person convicted of first degree
murder shall be eligible for parole until he or she has served
fifteen years; providing that review of an inmate who was
initially refused parole must be by at least three members of
the board; providing that the parole board may designate,
within a three-year period, when inmates serving life
sentences may be reconsidered for parole; providing that
parole provisions of this article apply only to felons;
providing that at least three board members shall interview an
inmate for parole and that an inmate shall be released upon a
concurrence of a majority of the interviewing board members; 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 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.
§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 subserved
thereby, and subject to the limitations hereinafter provided, shall
release any such inmate on parole for such terms and upon such
conditions as are provided by this article. Any inmate of a 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; and
(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; and
(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:
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, shall be eligible for
parole until he or she has served fifteen years. In the case of a
person sentenced to any 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 inmate so
eligible, which reconsideration and review shall be by at least
three members of the board:. Provided, however, 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 inmate shall be promptly
notified.
(b) 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 department of corrections 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 an inmate of a state correctional center
for release on parole, the parole board shall have before it an
authentic copy of or report on the inmate's current criminal record
as provided through the West Virginia state police, the United
States department of justice or other reliable criminal information
sources and written reports of the warden or superintendent of the
state correctional center to which such inmate is sentenced:
(1) 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;
(2) 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;
(3) 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;
(4) On physical, mental and psychiatric examinations of the
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 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
inmate who is incarcerated because such 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.
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 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 inmate on
parole
and the majority of the board members 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 shall be kept on permanent file.
The board and its designated agents shall at all times 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.
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
inmate 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 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, 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
except in the 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.
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