H. B. 4627
(By Delegates Manypenny and Susman)
[Introduced February 22, 2010; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §62-11B-4, §62-11B-5, §62-11B-6 §62-
11B-7 and §62-11B-9 of the Code of West Virginia, 1931, as
amended, all relating to requiring an automatic home
confinement sentence for nonviolent misdemeanors, except in
those cases where the state can prove the offender is unfit
for home confinement; providing that any crime with a minimum
sentence greater than six months is not eligible for home
incarceration to serve as the entirety of the sentence;
requiring the offender of any crime involving alcohol,
controlled substances or drugs, or committed under the
influence of alcohol, controlled substances or drugs be
required to attend weekly substance abuse meetings; further
requiring either full-time employment, thirty-six hours a week
or more, or twenty hours weekly of community service for each
week the offender is on home confinement; providing certain
instances where home incarceration is not available; and allowing a county commission to use moneys from the special
fund to finance community corrections programs.
Be it enacted by the Legislature of West Virginia:
That §62-11B-4, §62-11B-5, §62-11B-6, §62-11B-7 and §62-11B-9
of the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 11B. HOME INCARCERATION ACT.
§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,
an automatic home incarceration sentence shall be given for
nonviolent misdemeanors, except in those cases where the
prosecution demonstrates that the offender in question is an
ineligible candidate for home incarceration. A circuit court
may
shall order an offender confined to the offender's home for a
period of home incarceration. As an alternative sentence to
incarceration in jail for any criminal violation of this code over
which a magistrate court has jurisdiction,
an automatic home
incarceration sentence shall be given for nonviolent misdemeanors,
except in those cases where the prosecution demonstrates that the
offender in question is an ineligible candidate for home
incarceration, or as a condition of bail for a criminal violation of this code over which a magistrate court has jurisdiction to set
bail, a magistrate
may shall order an offender 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 or magistrate court orders.
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.
An
individual may only be on home incarceration for six months
continuously. Any crime with a minimum sentence of greater than
six months is not eligible for home incarceration to serve as the
entirety of the sentence.
(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.
(d) When imposing home incarceration as a condition of bail,
a magistrate shall do so consistent with guidelines promulgated by
the Supreme Court of Appeals.
§62-11B-5. Requirements for order for home incarceration.
An order for home incarceration of an offender under section
four of this article is to include, but not be limited to, the following:
(1) A requirement that the offender be confined to the
offender's home
or a home deemed suitable by the magistrate or
judge at all times except when the offender is:
(A) Working
full time, thirty-six hours or more a week, 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:
Provided, That those
who are unemployed shall complete twenty hours of supervised
community service weekly, for the time that they are participating
in home confinement. The supervised community service shall be
structured through the county's community corrections program and
approved by the circuit judge 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 sobriety program, such as Alcoholics
Anonymous, Narcotics Anonymous or a program approved for the
offender by the circuit court or magistrate: Provided, That an
offender who committed a crime involving alcohol, controlled
substances or drugs, or crimes committed under the influence
thereof shall attend a program at least once per week;
(F) Attending a regularly scheduled religious service at a
place of worship;
(F) (G) Participating in a community work release or community
service program approved for the offender by the circuit court, in
circuit court cases; or
(G) (H) 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 any time 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. The magistrate or circuit
judge shall consider the person's ability to pay in determining the
imposition and amount of the fee;
(8) A requirement that the offender pay a fee authorized by
the provisions of section four, article eleven-c of this chapter:
Provided, That the magistrate or circuit judge considers the
person's ability to pay in determining the imposition and amount of
the fee; and
(9) 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; exceptions.
(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 not order home incarceration for an
offender unless electronic monitoring is available 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 only order home incarceration for an
offender convicted of a crime of violence against the person if the
offender does not occupy the same home as the victim of the crime.
(e) Home incarceration is not available as a sentence if the
language of a criminal statute expressly prohibits its application.
(f)
Automatic home confinement is not available to violent
offenders, felony offenders, offenders guilty of a crime with a
minimum sentence greater than six months, or offenders deemed unfit
by the magistrate or circuit judge.
(g) Notwithstanding the provisions of subsection (c) of this
section, a magistrate may order home incarceration through the imposition of supervision or participation in a community
corrections program created pursuant to article eleven-c, chapter
sixty-two of this code.
§62-11B-7. Home incarceration fees; special fund.
All home incarceration fees ordered by the circuit court or a
magistrate pursuant to subdivision (7), section five of this
article are to be paid to the county sheriff. The county sheriff
is to establish a special fund designated the home incarceration
services fund, in which the sheriff is to deposit all home
incarceration fees collected pursuant to this section. 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.
The
county commission may appropriate money from the fund to finance
community corrections programs. The county commission may also
appropriate any excess money from the fund to defray the costs of
housing county inmates or for community corrections programs, if
the sheriff or other person designated to administer the fund
certifies in writing to the county commission that a surplus exists
in the fund at the end of the fiscal year.
§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
automatic sentence or
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 an
alternative 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.
NOTE: The purpose of this bill is to require an automatic home
incarceration sentence for nonviolent misdemeanor crimes. It also
provides that moneys from the special fund may be used for
community corrections programs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.