Introduced Version
House Bill 2092 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2092
(By Delegate C. Miller)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §62-12-29, relating
to probation and parole; and adding certain sanctions for
violations of probation and parole.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §62-12-29, to read as
follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-29. Swift and certain sanctions.
_____(a) Definitions.-- In this section, unless the context clearly
requires a different meaning:
_____(1) "Agency" means:
_____(A) The state agency responsible for supervising individuals placed on probation by the courts or serving a period of parole or
post-release supervision from prison or jail; and
_____(B) Regional, local or county governmental agencies
responsible for supervising individuals placed on probation by a
court or serving a period of parole or post-release supervision
from prison or jail, provided such agencies receive state funding.
_____(2) "Chief supervision officer" means the highest ranking
field probation or parole administrator in each judicial circuit.
_____(3) "Court" means a court of record having original criminal
jurisdiction.
_____(4) "Community supervision" means:
_____(A) The placement of a defendant under a continuum of programs
and sanctions with conditions imposed by a court for a specified
period during which:
_____(i) Criminal proceedings are deferred without an adjudication
of guilt;
_____(ii) A sentence of imprisonment or confinement, imprisonment
and fine, or confinement and fine, is probated and the imposition
of sentence is suspended, in whole or in part; or
_____(B) The placement of an individual under a continuum of
programs and sanctions after release from prison or jail with
conditions imposed by the releasing authority for a specified
period.
_____(5) "Supervision officer" means a person appointed or employed by the agency to supervise individuals placed on community
supervision.
_____(6) "Supervised individual" means an individual placed on
probation by a court or serving a period of parole or post-release
supervision from prison or jail.
_____(7) "Graduated sanction" means any of a wide range of
nonprison offender accountability measures and programs including,
but not limited to, electronic supervision tools, drug and alcohol
testing or monitoring, day or evening reporting centers,
restitution centers, forfeiture of earned compliance credits,
rehabilitative interventions such as substance abuse or mental
health treatment, reporting requirements to supervision officers,
community service or work crews, secure or unsecure residential
treatment facilities or halfway houses and short-term or
intermittent incarceration.
_____(8) "Positive reinforcement" means any of a wide range of
rewards and incentives including, but not limited to, awarding
certificates of achievement, reducing reporting requirements,
deferring a monthly supervision fee payment, awarding earned
compliance credits, removing supervision conditions such as home
detention or curfew or asking the offender to be a mentor to
others.
_____(b) Policy on Community Supervision.-- It is the policy of
this state that supervised individuals shall be subject to:
_____(1) Violation revocation proceedings and possible
incarceration for failure to comply with the conditions of
supervision when such failure constitutes a significant risk to
prior victims of the supervised individual or the community at
large, and cannot be appropriately managed in the community; or
_____(2) Sanctions other than revocation and incarceration as
appropriate to the severity of the violation behavior, the risk of
future criminal behavior by the offender and the need for and
availability of interventions which may assist the offender to
remain compliant and crime-free in the community.
_____(c) System of graduated sanctions.--
_____(1) The agency shall, by January 1, 2014, adopt a single
system of graduated sanctions for violations of conditions of
community supervision. The system shall set forth a menu of
presumptive sanctions for the most common types of supervision
violations including, but not limited to, failure to report,
failure to pay fines, fees and victim restitution, failure to
participate in a required program or service, failure to complete
community service, violation of a protective or no contact order
and failure to refrain from the use of alcohol or controlled
substances. The system of sanctions shall take into account
factors such as the severity of the current violation, the
supervised individual's previous criminal record, the number and
severity of any previous supervision violations, the supervised individual's assessed risk level and the extent to which graduated
sanctions were imposed for previous violations. The system also
shall define positive reinforcements that supervised individuals
will receive for compliance with conditions of supervision.
_____(2) The agency shall establish, by rules, an administrative
process to review and approve or reject, prior to imposition,
graduated sanctions that deviate from those prescribed.
_____(3) The agency shall establish, by rules, an administrative
process to review graduated sanctions contested by supervised
individuals under subsection (e) of this section. The review shall
be conducted by an impartial agency employee or representative who
has been selected, appointed and trained to hear cases regarding
graduated sanctions for violations of supervision conditions.
_____(d)Conditions of community supervision.-- For individuals
placed on probation, the judge of the court having jurisdiction of
the case shall determine the conditions of community supervision
and may impose as a condition of community supervision that the
agency supervising the individual may, in accordance with
subsection (e) of this section, impose graduated sanctions adopted
by the agency for violations of the conditions of community
supervision.
_____(e) Authority to impose graduated sanctions.--
_____(1) Notwithstanding any rule or law to the contrary, the
agency may:
_____(A) Modify the conditions of community supervision for the
limited purpose of imposing graduated sanctions; and
_____(B) Place a supervised individual who violates the conditions
of community supervision in a state or local correctional or
detention facility or residential center for a period of not more
than five days consecutively and not more than thirty days in any
one calendar year.
_____(2) A supervision officer intending to modify the conditions
of community supervision by imposing a graduated sanction shall
issue to the supervised individual a notice of the intended
sanction. The notice shall inform the supervised individual of the
technical violation or violations alleged, the date or dates of the
violation or violations and the graduated sanction to be imposed.
_____(3) The imposition of a graduated sanction or sanctions by a
community supervision officer must comport with the system of
graduated sanctions adopted by the agency under subsection (d) of
this section. Upon receipt of the notice, the supervised individual
shall immediately accept or object to the sanction or sanctions
proposed by the officer. The failure of the supervised individual
to comply with a sanction constitutes a violation of probation,
parole or post-release supervision. If the supervised individual
objects to the imposition of the sanction or sanctions, the
individual is entitled to an administrative review to be conducted
by the agency within five days of the issuance of the notice. If the agency affirms the recommendation contained in the notice, then
the sanction or sanctions becomes effective immediately.
_____(4) If the graduated sanction involves confinement in a
correctional or detention facility, confinement must be approved by
the chief supervision officer but the supervised individual may be
taken into custody for up to four hours while such approval is
obtained. If the supervised individual is employed, the supervision
officer shall, to the extent feasible, impose this sanction on
weekend days or other days and times when the supervised individual
is not working.
_____(5) A sanction that confines a supervised individual in a
correctional or detention facility for a period of more than five
consecutive days, or extends the term of community supervision, may
not be imposed as a graduated sanction except pursuant to an order
of the court or the releasing authority.
_____(6) A notice of a graduated sanction may not be issued for any
violation of probation, parole or post-release supervision which
could warrant an additional, separate felony charge except that a
notice of a graduated sanction may be issued for a positive drug
test.
_____(7) Upon successful completion of a graduated sanction or
sanctions, a court may not revoke the term of community supervision
or impose additional sanctions for the same violation.
_____(8) If a supervision officer modifies the conditions of community supervision by imposing a graduated sanction, the officer
shall:
_____(A) Deliver a copy of the modified conditions to the
supervised individual;
_____(B) File a copy of the modified conditions with the sentencing
court or releasing authority; and
_____(C) Note the date of delivery of the copy in the supervised
individual's file.
_____(f) Monitoring graduated sanctions.-- The chief supervision
officer shall review confinement sanctions recommended by
supervision officers on a quarterly basis to assess disparities
that may exist among officers, evaluate the effectiveness of the
sanction as measured by the supervised individuals' subsequent
conduct and monitor the impact on the agency's number and type of
revocations for violations of the conditions of supervision.
NOTE: The purpose of this bill is to add certain sanctions
for violations of probation and parole.
§62-12-29 is new; therefore, it has been completely
underscored.