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Introduced Version House Bill 4123 History

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H. B. 4123

 

         (By Delegates Frazier, Miley, Barker, Manypenny,

               Michael, Moore, Skaff and Ellem)

         [Introduced January 18, 2012; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §4-1-24; to amend said code by adding thereto two new sections, designated §15-9-6 and §15-9-7; to amend and reenact §25-1-1a and §25-1-15 of said code; to amend said code by adding thereto three new sections, designated §25-1-23, §25-1-24 and §25-1-25; to amend and reenact §28-5-27 of said code; to amend said code by adding thereto a new section, designated §31-20-33; to amend said code by adding thereto three new sections, designated §51-1-22, §51-1-23 and §51-1-24; to amend and reenact §60A-1-101 of said code; to amend said code by adding thereto a new section, designated, §60A-1-102; to amend and reenact §60A-4-401 and §60A-4-407 of said code; to amend said code by adding thereto two new sections, designated §60A-4-414 and §60A-4-415; to amend and reenact §62-1-5a of said code; to amend and reenact §62-1C-3 of said code; to amend said code by adding thereto a new section, designated §62-11C-3a; to amend said code by adding thereto fifteen new sections, designated §62-12-1a, §62-12-5a, §62-12-29, §62-12-30, §62-12-31, §62-12-32, §62-12-33, §62-12-34, §62-12-35, §62-12-36, §62-12-37, §62-12-38, §62-12-39, §62-12-40, §62-12-41; to amend and reenact §62-12-13 and §62-12-18 of said code; to amend said code by adding thereto a new section, designated §62-13-1; and to amend said code by adding thereto a new article, designated §62-16-1, §62-16-2, §62-16-3, §62-16-4, §62-16-5, §62-16-6, §62-16-7, §62-16-8 and §62-16-9, all relating to the Public Safety and Offender Accountability Act; requiring completion of a Corrections Impact Statement to determine the fiscal impact of bills that propose to increase, decrease or otherwise impact incarceration; establishing baselines for performance and comparisons to national averages to measure and document possible cost savings from the Public Safety and Offender Accountability Act; reinvesting and distribution of savings; identifying the primary objective for the Division of Corrections and sentencing policy as maintaining public safety, holding offenders accountable and maintaining the lowest possible recidivism rate; requiring the Division of Corrections to administer validated risk and needs assessments for inmates eligible for parole; creating an intensive secured substance abuse recovery program; requiring evidence-based practice to be used in treatment and intervention programs; requiring the Division of Corrections to provide annual reports to the Governor and the Legislature; providing for additional good time credit for successful completion of education or treatment programs; providing additional good time credit for exceptionally meritorious service; requiring the Regional Jail and Correctional Facility Authority to provide annual reports to the Governor and the Legislature; requiring the Supreme Court of Appeals to provide annual reports to the Governor and the Legislature; amending the Uniform Controlled Substances Act; requiring the Supreme Court of Appeals to develop an online system that provides courts, attorneys, probation and parole officers and victims with information about sentencing; distinguishing between serious drug trafficking by maintaining severe penalties for serious drug traffickers; establishing a proportionate scale of penalties; reduces sentence for small quantities of certain controlled substances for a first offense; permitting deferred prosecution or a presumptive probation sentence for first and second time possession offenders; requiring a law-enforcement officer to issue a citation instead of making an arrest for many misdemeanor offenses and providing for exceptions, such as when the offender poses a risk of danger to himself or others; prohibiting bail amounts for misdemeanors to exceed the fines and fees of the offenses charged; requiring courts and corrections authorities to incorporate risk and needs assessment information into their decision-making process; requiring state expenditures on supervision and intervention programs for pretrial defendants, inmates and persons on parole and probation be spent on evidence-based programs; requiring offenders to be supervised using practices proven to reduce or otherwise maintain low recidivism rates; requiring the parole board to hear cases at least sixty days prior to the offender’s parole eligibility date; requiring the use of administrative caseloads for low-risk offenders; authorizing compliance credits for parolees and early termination for probationers who successfully comply with supervision conditions; requiring six months of supervision for offenders who would otherwise be discharged without supervision at the end of their sentences; authorizing the Division of Corrections to allow offenders to complete required programming in the community and be monitored; increasing accountability for probation and parole violations by authorizing administrative, graduated sanctions for parole and probation violators; creating two pilot projects that require frequent drug testing with immediate sanctions for positive drug tests or other violations and referral to treatment, if necessary; and creating an intermediate punishment program that provides substance abuse treatment for offenders sentenced to a state correctional facility.

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 §4-1-24; that said code be amended by adding thereto two new sections, designated §15-9-6 and §15-9-7; that §25-1-1a and §25-1-15 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §25-1-23, §25-1-24 and §25-1-25; that §28-5-27 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §31-20-33; that said code be amended by adding thereto three new sections, designated §51-1-22, §51-1-23 and §51-1-24; that §60A-1-101 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §60A-1-102; that §60A-4-401 and §60A-4-407 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §60A-4-414 and §60A-4-415; that §62-1-5a of said code be amended and reenacted; that §62-1C-3 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §62-11C-3a; that said code be amended by adding thereto fifteen new sections, designated §62-12-1a, §62-12-5a, §62-12-29, §62-12-30, §62-12-31, §62-12-32, §62-12-33, §62-12-34, §62-12-35, §62-12-36, §62-12-37, §62-12-38, §62-12-39, §62-12-40, §62-12-41; that §62-12-13 and §62-12-18 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §62-13-1; and that said code be amended by adding thereto a new article, designated §62-16-1, §62-16-2, §62-16-3, §62-16-4, §62-16-5, §62-16-6, §62-16-7, §62-16-8 and §62-16-9, all to read as follows:

CHAPTER 4. THE LEGISLATURE.

ARTICLE 1. OFFICERS, MEMBERS AND EMPLOYEES; APPROPRIATIONS; INVESTIGATIONS; DISPLAY OF FLAGS; RECORDS; USE OF CAPITOL BUILDING; PREFILING OF BILLS AND RESOLUTIONS; STANDING COMMITTEES; INTERIM MEETINGS; NEXT MEETING OF THE SENATE.

§4-1-24. Corrections Impact Statement; conditions requiring preparation; contents of statement; calculation of costs and savings of creation of new crime or revision of existing crime; statement of sponsor regarding source of funds for additional costs of legislation.

    (a) Upon the request of the Legislative Services Division of the Joint Committee on Government and Finance, a "Corrections Impact Statement" shall be prepared by the staff of the Governor’s Committee on Crime, Delinquency and Correction with the assistance of the Division of Corrections, Regional Jail and Correctional Facilities Authority, State Police, Administrative Office of Supreme Court of Appeals, Parole Board, and other persons, agencies, or organizations deemed necessary by the Governor’s Committee on Crime, Delinquency and Correction’s staff assigned to prepare the corrections impact statement. The Division of Corrections, Regional Jail and Correctional Facilities Authority, State Police, Administrative Office of the Supreme Court of Appeals, Parole Board, and other persons, agencies, and organizations that have been requested to provide information for the Corrections Impact Statement shall do so within the period of time specified by the Governor’s Committee on Crime, Delinquency and Correction’s staff person requesting the information, which in no case shall exceed five business days, unless an extension is granted by the division.

    (b) The Corrections Impact Statement shall contain the estimated costs, estimated savings and necessary appropriations based upon:

    (1) Incarceration in jail prior to trial and during trial based on the available information about persons granted bail or other form of pretrial release and the length of time spent in jail prior to release;

    (2) Supervision of a person who has been granted bail or pretrial release based on the average time spent between the time of release until the time of trial for the offense;

    (3) Incarceration in jail for a misdemeanor following conviction based on the maximum time of incarceration authorized for the offense;

    (4) Incarceration in a state correctional facility for a felony offense based on the maximum and minimum length of incarceration authorized for the offense;

    (5) Probation or conditional discharge supervision based on the maximum time of probation or conditional discharge authorized for the offense;

    (6) Parole supervision based on the average length of parole supervision authorized for the offense assuming full parole supervision; and

    (7) Mandated treatment, education, and other programs which are to be paid by the state, unit of local government, or public agency, based on the number of persons anticipated to be required to complete the program if the education, treatment or other program is not normally offered as a part of a defendant's incarceration and is required to be completed outside of a correctional facility.

    © Insofar as possible, costs and savings for a change to an existing crime shall be calculated using:

    (1) Arrest data for the crime from the State Police;

    (2) Pretrial incarceration data from the Administrative Office of the Supreme Court of Appeals;

    (3) Preconviction jail data from the Administrative Office of the Supreme Court of Appeals;

    (4) Conviction data from the Administrative Office of the Supreme Court of Appeals;

    (5) Probation data from the Administrative Office of the Supreme Court of Appeals;

    (6) Postconviction jail and imprisonment data from the Division of Corrections;

    (7) Parole data from the Division of Corrections and Board of Parole; and

    (8) Data from applicable agencies or organizations providing treatment, education and other mandated programs.

    (d) Insofar as possible, costs or savings for a new crime shall be calculated in the same manner as specified in subsection © of this section using data for similar crimes unless that is determined by the Governor’s Committee on Crime, Delinquency and Correction’s staff person to be impractical or impossible in which case the estimate for a new crime may be prepared using: (1) The maximum and minimum length of incarceration for the offense;

    (2) An estimate of cost based on ten persons being charged with the offense, and based on one hundred persons being charged with the offense;

    (3) An estimate of cost based on ten persons and one hundred persons being convicted of the offense and sent to jail if the offense is a misdemeanor using the criteria specified in subsection (e) of this section; and

    (4) An estimate of cost based on ten persons and one hundred persons being convicted of a felony offense requiring imprisonment in a correctional facility.

    (e) Costs or savings shall be based on the average costs actually paid by the Division of Corrections and the Regional Jail and Correctional Facilities Authority, during the previous fiscal year for incarceration of a person in a state correctional facility, the average cost for supervision of a person placed on probation without electronic monitoring, the average cost of a person placed on probation with electronic monitoring, the average cost of parole supervision without electronic monitoring and the average cost of parole supervision with electronic monitoring.

CHAPTER 15. PUBLIC SAFETY.

ARTICLE 9. GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION.

§15-9-6. Measurement and documentation of cost savings from the Public Safety and Offender Accountability Act; average cost of incarceration; savings to benefit treatment programs; budget requests and enactments.

    (a) The Governor’s Committee on Crime, Delinquency and Correction shall measure and document cost savings resulting from amendments to or creation of statutes in the Public Safety and Offender Accountability Act. Measured and documented savings shall be reinvested or distributed as provided in this section.

    (b) The Governor’s Committee on Crime, Delinquency and Correction shall establish a baseline for measurement using the average number of inmates incarcerated at each of the correctional facilities administered by the Division of Corrections or Regional Jail and Correctional Facilities Authority in fiscal year 2012-2013.

    © The Governor’s Committee on Crime, Delinquency and Correction shall determine the average cost of incarceration for each correctional facility administered by the Division of Corrections or Regional Jail and Correctional Facilities Authority, including health care costs, transportation costs, and other related costs, for one inmate for one year for the immediately preceding fiscal year.

    (d) Beginning with the budget request for the 2013-2014 fiscal year, savings shall be estimated using the baseline established in subsection (b) of this section to determine the estimated average reduction of inmates due to the implementation of amendments to or creation of statutes in the Public Safety and Offender Accountability Act and multiplied by the appropriate average cost determined in subsection © of this section.

    (e) The estimated amount of savings shall be used solely for expanding and enhancing treatment programs that employ evidence-based or promising practices designed to reduce the likelihood of future criminal behavior, which shall include treatment programs at existing correctional facilities.

    (f) The amount of savings shall be estimated for the 2013-2014 fiscal year, and for each year of each fiscal year thereafter, as specified in subsection (d) of this section.

    (g) In submitting its budget request for the 2013-2014 fiscal year and each fiscal year thereafter, the Secretary of the Department of Military Affairs and Public Safety shall estimate the amount of savings measured under this section, and shall request the amount necessary to distribute or allocate those savings as provided in subsection (e) of this section.

    (h) In enacting the budget for the Department of Military Affairs and Public Safety, beginning in the 2013-2014 fiscal year and each fiscal year thereafter, the Legislature shall determine the estimated amount necessary for reinvestment in programs and initiatives as provided by subsection (e) of this section, based upon projected savings as measured by this section, and shall ensure that appropriations to the Department of Military Affairs and Public Safety are sufficient to meet the funding requirements of this section.

§15-9-7. Measurement and documentation of cost savings resulting from the Public Safety and Offender Accountability Act; reinvestment or distribution of savings; determination of average cost of incarceration and probation and parole services; budget allocations.

    (a) The Governor’s Committee on Crime, Delinquency and Correction shall measure and document cost savings resulting from the Public Safety and Offender Accountability Act and its amendments. Measured and documented savings shall be reinvested or distributed as provided in this section.

    (b) The Governor’s Committee on Crime, Delinquency and Correction shall establish a baseline for measurement using the average number of inmates incarcerated at each of the correctional facilities administered by the Division of Corrections or Regional Jail and Correctional Facilities Authority in fiscal year 2012-2013.

    © The Governor’s Committee on Crime, Delinquency and Correction shall determine the average cost of:

    (1) Incarceration for each correctional facility administered by the Division of Corrections or Regional Jail and Correctional Facilities Authority, including health care costs, transportation costs, and other related costs, for one inmate for one year for the immediately preceding fiscal year;

    (2) Providing parole services for one parolee for one year for the immediately preceding fiscal year; and

    (3) Providing probation services for one probationer for one year for the immediately preceding fiscal year.

    (d) Beginning with the budget request for the 2013-2014 fiscal year, savings shall be estimated from the baseline established in subsection (b) of this section as follows:

    (1) The estimated average reduction of inmates due to mandatory reentry supervision as required by subsection ©, section eighteen, article twelve, chapter sixty-two of the code, multiplied by the appropriate average cost as determined in subdivision (1), subsection © of this section;

    (2) The estimated average reduction of inmates due to accelerated parole multiplied by the appropriate average cost as determined in subdivision (1), subsection © of this section;

    (3) The estimated average increase of parolees due to paragraphs (1) and (2) of this subsection multiplied by the average cost as determined in subdivision (2), subsection © of this section;

    (4) The estimated average reduction of parolees due to parole credit for good behavior as provided in section thirty-three, article twelve, chapter sixty-two of this code, multiplied by the average cost as determined in subdivision (2), subsection © of this section;

    (5) The estimated average reduction of inmates due to deferred prosecution and presumptive probation as provided in sections four hundred seven and four hundred eight, article four, chapter sixty-a of this code, multiplied by the appropriate average cost as determined in subdivision (1), subsection © of this section;

    (6) The estimated average increase of probationers due to subdivision (5) of this subsection multiplied by the average cost as determined in subdivision (3), subsection © of this section; and

    (7) The estimated average reduction of probationers due to early termination of probation for good behavior as provided in section thirty-five, article twelve, chapter sixty-two of this code, multiplied by the average cost as determined in subdivision (3), subsection © of this section.

    (e) The following amounts shall be allocated or distributed from the estimated amount of savings that would otherwise remain in the general fund:

    (1) Twenty-five percent shall be distributed to the West Virginia Community Corrections Fund established by section four, article eleven-c, chapter sixty-two of this code; and

    (2) In enacting the budget for the Department of Military Affairs and Public Safety and the Supreme Court of Appeals, beginning in the 2013-2014 fiscal year and each fiscal year thereafter, the Legislature shall:

    (A) Determine the estimated amount necessary for reinvestment in:

    (I) Expanded treatment programs and expanded probation and parole services; and

    (ii) Additional pretrial services and drug court personnel; and

    (B) Shall allocate and appropriate sufficient amounts to fully fund these reinvestment programs.

    (f) The amount of savings shall be estimated for the 2013-2014 fiscal year and for each fiscal year thereafter, as specified in subsection (d) of this section.

    (g) (1) In submitting its budget request for the 2013-2014 fiscal year and each fiscal year thereafter, the Secretary of the Department of Military Affairs and Public Safety shall estimate the amount of savings measured under this section and request the amount necessary to distribute or allocate those savings as provided in subsection (e) of this section.

    (2) In submitting its budget request for the 2013-2014 fiscal year and each fiscal year thereafter, the Supreme Court of Appeals shall request the amount necessary to distribute or allocate those savings as provided in subsection (e) of this section.

CHAPTER 25. DIVISION OF CORRECTIONS.

ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.

§25-1-1a. Purpose and legislative intent.

    (a) The primary purpose of the Division of Corrections is to enhance public safety and hold offenders accountable while reducing recidivism or otherwise maintaining low recidivism rates and criminal behavior, and improving outcomes for offenders under its supervision by providing for the incarceration and care of convicted offenders who have been sentenced by courts of proper jurisdiction to serve terms of incarceration. It is the intent of the Legislature:

    (1) That persons committed to correctional institutions of the state for whom release is available for crimes be afforded appropriate treatment to reestablish their ability to live peaceably, consistent with the protection of the community;

    (2) That persons committed to correctional institutions of the state be released at the earliest possible date, consistent with public safety;

    (3) To establish a just, humane and efficient corrections program; and

    (4) To avoid duplication and waste of effort and money on the part of public and private agencies; and

    (5) That the division shall create and implement policies and programs to achieve these objectives.

    (b) This section shall be construed in favor of public safety.

ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.

§25-1-15. Diagnostic and classification divisions.

    (a) The Commissioner of Corrections may establish diagnostic and classification divisions.

    (b) Notwithstanding any provision of the code to the contrary, all persons committed to the custody of the Commissioner of the Division of Corrections for presentence diagnosis and classification and all persons sentenced to the custody of the Division of Corrections shall, upon transfer to the Division of Corrections, undergo diagnosis and classification, which may include assessments of a person’s criminogenic risk and need factors that are reliable, validated and normed for a specific population and responsive to cultural and gender-specific needs as well as individual learning styles and temperament.

§25-1-23. Intensive secured substance abuse recovery program.

    (a) The Division of Corrections shall develop an intensive secured substance abuse recovery program utilizing existing resources or by contract to house and care for persons suffering from substance abuse who have been charged with a felony offense.

    (b) The program shall accept persons referred to it under section twenty-two, article eleven, chapter sixty-one of this code or a sentence of intermediate punishment as provided by article sixteen, chapter sixty-two of this code.

    © Persons may agree to be ordered into the program for a period of not less than ninety days and not more than three hundred sixty-five days.

    (d) No person may be involuntarily ordered into the program. A commitment may not occur before the court has considered an evaluation of the defendant's treatment needs and conducted a hearing where the defendant may appear with counsel with an opportunity to present evidence on his or her own behalf, and persons in the program may petition the court to review the program's determination as to the length of time the person is to remain in the program or to issue an order to leave the program, which the court shall grant upon request, at any time. However, that departure shall constitute a material breach of any agreement to hold the person's case in abeyance or of the person's pretrial diversion agreement.

    (e) The court shall revoke a defendant's program commitment over the defendant's objection prior to the expiration of the commitment period only pursuant to an order of the committing court issued after the court has conducted a hearing on the matter where the defendant may appear with counsel and present evidence on his or her behalf.

    (f) The division shall locate the program in a secure facility with security standards comparable to those found in a minimum security correctional institution operated by the division.

    (g) The program shall be capable of concurrently housing no fewer than two hundred persons. The division has regulatory authority, when the program is at or near capacity, to prioritize admissions to the program.

    (h) The program's recovery component shall be designed to serve the committed person's substance abuse condition, and to provide the person with the skills and training needed to prevent the person from engaging in substance abuse upon release from the program. The program shall provide each person leaving the program with an aftercare plan, which shall include a referral to a local substance abuse provider capable of providing a level of continuing substance abuse care appropriate to the released person's needs. In designing the program, the division may consult with and may contract with the Division on Alcoholism and Drug Abuse in the Division of Health.

§25-1-24. Evidence-based practices to be used in treatment and intervention programs; standards; funding restrictions.

    (a) As used in this section, "evidence-based practices" means supervision policies, procedures, treatment and intervention programs, and practices that scientific research demonstrates reduces or otherwise maintains low recidivism among inmates and individuals on parole, or other form of post-release supervision when implemented competently.

    (b) In order to increase the effectiveness of treatment and intervention programs funded by the state and provided by the Division of Corrections for inmates and parolees, the division shall require that such programs use evidence-based practices.

    © The division shall measure the effectiveness of each treatment and intervention program and demonstrate that the program has a documented evidence base and has been evaluated for effectiveness in reducing recidivism or otherwise maintaining low recidivism rates.

    (d) The division shall establish a policy to provide, at a minimum:

    (1) A process for reviewing the objective criteria for evidence-based practices established by the agency providing the program;

    (2) A process for auditing the effectiveness of the program;

    (3) An opportunity for programs that do not meet the criteria based on the audit results to improve performance; and

    (4) A mechanism to defund any program that does not meet the criteria upon a second audit.

    (e) Beginning July 1, 2013, twenty-five percent of state moneys expended on programs shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2014, fifty percent of state moneys expended on programs shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2016 and thereafter, seventy-five percent of state moneys expended on programs shall be for programs that are in accordance with evidence-based practices.

    (f) By fiscal year 2015-2016, the division shall eliminate supervision policies, procedures, programs, and practices intended to reduce recidivism that scientific research demonstrates do not reduce recidivism or otherwise maintain low recidivism rates. However, the division may utilize a new supervision policy, procedure, program, or practice if the division determines that the new supervision policy, procedure, program, or practice has the potential for qualifying as an evidence-based practice after more scientific research is conducted.

§25-1-25. Annual report.

    (a) The Commissioner of the Division of Corrections shall annually on December 1 of each year report to the Governor and the Legislature on:

    (1) The placement of prisoners within the state’s correctional system by institution, whether confined in a correctional facility or other institution, including regional jails, paroled, housed in halfway houses, sentenced to community service or otherwise;

    (2) Numbers of prisoners by type of offense;

    (3) Numbers of prisoners paroled by type of offense and by length of time served;

    (4) Numbers of prisoners serving their full sentence by type of offense;

    (5) The percentage of felony offenders on parole or some form of parole who are participating or completing treatment consistent with assessment results, in prison and in the community;

    (6) The percentage of felony offenders whose reassessment results demonstrate reductions in criminal risk factors;

    (7) The percentage of programs that demonstrate their effectiveness in reducing recidivism or otherwise maintaining low recidivism rates;

    (8) The percentage of felony offenders on parole or some form of post-release supervision, by supervision type, who:

    (A) Are employed or in school within thirty days, six months, and one year of the start of supervision;

    (B) Have had part-time employment for a minimum of six months, and the percentage of offenders who have had full-time employment for a minimum of six months;

    © Have housing upon release from incarceration;

    (D) Had stable housing for at least six months; and

    (E) Are arrested, convicted, or incarcerated within six months, one year, and three years;

    (9) The percentage of admissions to prison by offenders under supervision at the time of admission, including information regarding whether the violations were criminal or technical;

    (10) Any other data that provides information on state-funded crime reduction and recidivism reduction efforts, including, participation in treatment and intervention programming, public safety outcomes, and cost effectiveness;

    (11) Numbers and types of prison beds necessary to meet current population needs and six year projections of those needs;

    (12) Current personnel needs of the Division of Corrections and five year projections of the needs; and

    (13) A six year projection of needed capital construction, program development, and anticipated requests for appropriations.

    (b) The provisions of this section become effective on December 1, 2014.

CHAPTER 28. STATE CORRECTIONAL AND PENAL INSTITUTIONS.

ARTICLE 5. THE PENITENTIARY.

§28-5-27. Deduction from sentence for good conduct.

    (a) All adult inmates now in the custody of the Commissioner of the Division of Corrections, or hereafter committed to the custody of the Commissioner of the Division of Corrections, except those committed pursuant to article four, chapter twenty-five of this code, shall be granted commutation from their sentences for good conduct in accordance with this section.

    (b) Such commutation of sentence, hereinafter called "good time," shall be deducted from the maximum term of indeterminate sentences or from the fixed term of determinate sentences.

    © Each inmate committed to the custody of the Commissioner of the Division of Corrections and incarcerated in a penal facility pursuant to such commitment shall:

    (1) Be granted one day good time for each day he or she is incarcerated, including any and all days in jail awaiting sentence and which is credited by the sentencing court to his or her sentence pursuant to section twenty-four, article eleven, chapter sixty-one of this code or for any other reason relating to such commitment. No inmate may be granted any good time for time served either on parole or bond or in any other status whereby he or she is not physically incarcerated;

    (2) Successfully receiving a general equivalency diploma or a high school diploma, a two or four year college degree, a two year or four year certification in applied sciences, a technical education diploma as provided and defined by the division, or a civics education program that requires passing a final exam, in the amount of ninety days good time per diploma, degree, or certification received; and

    (3) Successfully completing a drug treatment program or other program as defined by the division that requires participation for a minimum of six months, in the amount of ninety days good time for each program completed.

    (d) An inmate committed to the custody of the Commissioner of the Division of Corrections and incarcerated in a penal facility pursuant to such commitment may receive credit on his or her sentence for:

    (1) Performing exceptionally meritorious service or performing duties of outstanding importance in connection with institutional operations and programs, awarded at the discretion of the commissioner in an amount not to exceed seven days per month; and

    (2) Acts of exceptional service during times of emergency, awarded at the discretion of the commissioner in an amount not to exceed seven days per month.

    (e) No inmate sentenced to serve a life sentence shall be eligible to earn or receive any good time pursuant to this section.

    (e) (f) An inmate under two or more consecutive sentences shall be allowed good time as if the several sentences, when the maximum terms thereof are added together, were all one sentence.

    (f) (g) The Commissioner of the Division of Corrections shall promulgate separate disciplinary rules for each institution under his or her control in which adult felons are incarcerated, which rules shall describe acts which inmates are prohibited from committing, procedures for charging individual inmates for violation of such rules and for determining the guilt or innocence of inmates charged with such violations and the sanctions which may be imposed for such violations. A copy of such rules shall be given to each inmate. For each such violation, by an inmate so sanctioned, any part or all of the good time which has been granted to such inmate pursuant to this section may be forfeited and revoked by the warden or superintendent of the institution in which the violation occurred. The warden or superintendent, when appropriate and with approval of the commissioner, may restore any good time so forfeited.

    (g) (h) Each inmate, upon his or her commitment to and being received into the custody of the Commissioner of the department Division of Corrections, or upon his or her return to custody as the result of violation of parole pursuant to section nineteen, article twelve, chapter sixty-two of this code, shall be given a statement setting forth the term or length of his or her sentence or sentences and the time of his or her minimum discharge computed according to this section.

    (h) (I) Each inmate shall be given a revision of the statement described in subsection (g) (h) if and when any part or all of the good time has been forfeited and revoked or restored pursuant to subsection (f) (g) whereby the time of his or her earliest discharge is changed.

    (I) The Commissioner of Corrections may, with the approval of the governor, allow extra good time for inmates who perform exceptional work or service.

    (j) In order to ensure equitable good time for all inmates now in the custody of the commissioner of corrections or hereafter committed to the custody of such the commissioner, except as to those persons committed pursuant to article 4 four, chapter twenty-five of this code, all good times shall be computed according to this section and all previous computations of good time under prior statutes or regulations are hereby voided. All inmates who have previously forfeited good time are hereby restored to good time computed according to this section and all inmates will receive a new discharge date computed according to this section. All inmates that have been awarded overtime good time or extra good time pursuant to sections twenty-seven-a and twenty-seven-b of this article which are repealed simultaneously with the amendment to this section during the regular session of the legislature in the year 1984, shall receive such good time in addition to the good time computed according to this section.

    (k) There shall be no grants or accumulations of good time or credit to any inmate now or hereafter serving a sentence in the custody of the department Division of Corrections except in the manner provided in this section.

CHAPTER 31. CORPORATIONS.

ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY.

§31-20-33. Annual report.

    (a) The Executive Director of the Regional Jail and Correctional Facility Authority shall on December 1 of each year report to the Governor and the Legislature on:

    (1) The placement of prisoners within the regional jails by institution;

    (2) Numbers of prisoners by type of offense;

    (3) Numbers of prisoners by number and type of prior convictions;

    (4) Numbers of prisoners paroled by type of offense and by length of time served;

    (5) Numbers of prisoners serving their full sentence by type of offense;

    (6) The percentage of offenders on probation or some form of post-release supervision who are participating or completing treatment consistent with assessment results, in jail and in the community;

    (7) The percentage of offenders whose reassessment results demonstrate reductions in criminal risk factors;

    (8) The percentage of programs that demonstrate their effectiveness in reducing recidivism or otherwise maintaining low recidivism rates;

    (9) The percentage of admissions to jail by offenders under supervision at the time of admission, including information regarding whether the violations were criminal or technical;

    (10) Any other data that provides information on state-funded crime reduction and recidivism reduction efforts, including caseload sizes by risk level, participation in treatment and intervention programming, public safety outcomes, and cost effectiveness;

    (11) Numbers and types of beds necessary to meet current population needs and six year projections of those needs;

    (12) Current personnel needs of the authority and five year projections of the needs; and

    (13) A six year projection of needed capital construction, program development, and anticipated requests for appropriations.

CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 1. WEST VIRGINIA SUPREME COURT OF APPEALS.

§51-1-22. Annual report on state-funded crime reduction and               recidivism reduction efforts.

    (a) The Chief Justice of the Supreme Court of Appeals shall submit an annual report to the Legislature by November 1 of each year that provides information on state-funded crime reduction and recidivism reduction efforts, including participation in intervention programming, public safety outcomes, and cost effectiveness. The report shall, at a minimum, include:

    (1) The percentage of defendants on pretrial supervision who appear for court and do not commit a new crime;

    (2) The percentage of drug court clients who successfully complete drug court;

    (3) The percentage of drug court clients who are arrested, convicted, and incarcerated within six months, one year, and three years of successful completion of drug court; and

    (4) The amount of restitution paid while in drug court.

    (b) The provisions of this section are effective on November 1, 2013.

§51-1-23. Online system based on state statistics of offenders for              use in plea negotiations and sentencing.

    (a) The Supreme Court of Appeals shall develop an online system based on state statistics of actual offenders to provide courts, attorneys, parole officers, and victims with objective information for use in plea negotiations and sentencing. The system shall include, but not be limited to, the following information:

    (1) Sentencing information for all felonies, including the amount of time likely to be served for particular offenses;

    (2) The offender's risk assessment rating;

    (3) The offender's expected time to serve, including, but not limited to, parole eligibility date, good time release date, maximum expiration of sentence date, and the historic percentage of time served for similar offenders;

    (4) The costs for various sentencing options and costs for various alternatives to incarceration; and

    (5) The offender's likelihood of being reincarcerated within two years under the different sentencing options and alternatives, taking into account the offender's risk assessment rating.

    (b) This section becomes effective on July 1, 2013.

§51-1-24. Authorization of pilot-project on Hawaii Opportunity Probation and Enforcement (HOPE) model.

    (a) In an effort to improve public safety and reduce failure rates of individuals on probation, the Supreme Court of Appeals may choose two judicial circuits, one urban circuit and one rural circuit, to implement a twelve-month pilot project similar to the Hawaii Opportunity Probation and Enforcement (HOPE) model to establish a program that:

    (1) Identifies for enrollment in the program through a validated risk assessment instrument individuals who are serving a term of probation and who are at high risk of failing to observe the conditions of supervision and of being returned to incarceration as a result of such failure;

    (2) Identifies the key partners that will be included in the program, including the chief judges of the participating judicial circuits and other participating judges in such jurisdiction, Director of the Administrative Office of the Courts, probation officers, regional jail administrators, prosecutors, public defenders and defense attorneys, and sheriff or police administrators;

    (3) Notifies probationers of the rules of the pilot project and consequences for violating such rules;

    (4) Monitors probationers for illicit drug use with regular and rapid-result drug screening;

    (5) Monitors probationers for violations of other rules and probation terms, including failure to pay court-ordered financial obligations such as child support or victim restitution;

    (6) Responds to violations of such rules with immediate arrest of the violating probationer, and swift and certain modification of the conditions of probation, including imposition of short jail stays that may gradually become longer with each additional violation and modification;

    (7) Immediately responds to probationers who have absconded from supervision with service of bench warrants and immediate sanctions;

    (8) Provides rewards to probationers who comply with such rules;

    (9) Targets treatment resources to offenders who request treatment and those who are repeat violators;

    (10) Establishes procedures to terminate program participation by, and initiates revocation to a term of incarceration for, probationers who habitually fail to abide by program rules and pose a threat to public safety;

    (11) Includes regular coordination meetings for the key partners of the pilot project, including the partners identified in subdivision (2) of this subsection; and

    (12) Reduces violation behavior and new crimes, and reduces revocations to prison.

    (b) If a pilot project is implemented by the Supreme Court of Appeals, and two judicial circuits, they shall submit an annual report on the results of the pilot project to the Interim Joint Committee on Judiciary one year after implementation of the pilot project. The results shall include at a minimum:

    (1) Key process measures, including the number of individuals enrolled in the program, the frequency of drug testing of such individuals, the certainty of sanctions for a violation of the terms of probation, the average period of time from detection of a violation to issuance of a sanction for the violation and sanction severity;

    (2) An unbiased comparison of the outcomes between program participants and similarly situated probationers not in the program, including the positive and negative drug test rates, probation and substance abuse treatment appearance rates, probation term modifications, revocations, arrests, time spent in jail or prison and total correctional costs incurred; and

    (3) The amount of cost savings, if any, resulting from the reduced incarceration achieved through the pilot project.

CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.

ARTICLE 1. DEFINITIONS.

§60A-1-101. Definitions.

    As used in this act:

    (a) (1) "Administer" means the direct application of a controlled substance whether by injection, inhalation, ingestion or any other means to the body of a patient or research subject by:

    (1) (A) A practitioner (or, in his or her presence, by his authorized agent); or

    (2) (B) The patient or research subject at the direction and in the presence of the practitioner.

    (b) (2) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman.

    © (3) “Analogue” means a substance that, in relation to a controlled substance, has a substantially similar chemical structure.

    (d) (4) "Bureau" means the "Bureau of Narcotics and Dangerous Drugs, United States Department of Justice" or its successor agency.

    (5) "Cocaine" means a substance containing any quantity of cocaine, its salts, optical and geometric isomers, and salts of isomers.

    (e) (6) "Controlled substance" means a drug, substance or immediate precursor in Schedules I through V of article two of this chapter.

    (f) (7) "Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.

    (g) "Imitation controlled substance" means: (1) A controlled substance which is falsely represented to be a different controlled substance; (2) a drug or substance which is not a controlled substance but which is falsely represented to be a controlled substance; or (3) a controlled substance or other drug or substance or a combination thereof which is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed or priced so as to cause a reasonable person to believe that it is a controlled substance.

    (8) "Criminal risk factors" means those characteristics and behaviors that, when addressed or changed, affect a person's risk for committing crimes. The characteristics may include, but are not limited to, the following risk and criminogenic need factors: antisocial behavior, antisocial personality, criminal thinking, criminal associates, dysfunctional family, low levels of employment or education, poor use of leisure and recreation and substance abuse.

    (h) (9) "Deliver" or "delivery" means the actual, constructive or attempted transfer from one person to another of: (1) A controlled substance, whether or not there is an agency relationship; (2) a counterfeit substance; or (3) an imitation controlled substance.

    (I) (10) "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for that delivery.

    (j) (11) "Dispenser" means a practitioner who dispenses.

    (k) (12) "Distribute" means to deliver, other than by administering or dispensing, a controlled substance, a counterfeit substance or an imitation controlled substance.

    (l) (13) "Distributor" means a person who distributes.

    (14) “Dosage unit” means a single pill, capsule, ampule, liquid, or other form of administration available as a single unit.

    (m) (15) "Drug" means: (1) (A) Substances recognized as drugs in the official "United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or official National Formulary", or any supplement to any of them; (2) (B) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; (3) © substances (other than food) intended to affect the structure or any function of the body of man or animals; and (4) (D) substances intended for use as a component of any article specified in clause (1), (2) or (3) paragraph (A), (B) or © of this subdivision. It does not include devices or their components, parts or accessories.

    (16) "Heroin" means a substance containing any quantity of heroin, or any of its salts, isomers, or salts of isomers;

    (17) "Imitation controlled substance" means:

    (A) A controlled substance which is falsely represented to be a different controlled substance;

    (B) A drug or substance which is not a controlled substance but which is falsely represented to be a controlled substance; or

    © A controlled substance or other drug or substance or a combination thereof which is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed or priced so as to cause a reasonable person to believe that it is a controlled substance.

    (n) (18) “Immediate derivative” means a substance which the “West Virginia Board of Pharmacy” has found to be and by rule designates as being the principal compound or any analogue of the parent compound manufactured from a known controlled substance primarily for use and which has equal or similar pharmacologic activity as the parent compound which is necessary to prevent, curtail or limit manufacture.

    (o) (19) "Immediate precursor" means a substance which the "West Virginia Board of Pharmacy" (hereinafter in this act referred to as the State Board of Pharmacy) has found to be and by rule designates as being the principal compound commonly used or produced primarily for use and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.

    (p) (20) "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation, compounding, packaging or labeling of a controlled substance:

    (1) (A) By a practitioner as an incident to his or her administering or dispensing of a controlled substance in the course of his professional practice; or

    (2) (B) By a practitioner, or by his or her authorized agent under his or her supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.

    (q) (21) "Marijuana" means all parts of the plant "Cannabis sativa L.", whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, immediate derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, immediate derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

    ® (22) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

    (1) (A) Opium and opiate and any salt, compound, immediate derivative or preparation of opium or opiate;

    (2) (B) Any salt, compound, isomer, immediate derivative or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (1) of this subdivision, but not including the isoquinoline alkaloids of opium;

    (3) © Opium poppy and poppy straw; and

    (4) (D) Coca leaves and any salt, compound, immediate derivative or preparation of coca leaves and any salt, compound, isomer, immediate derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

    (s) (23) "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under section two hundred one, article two of this chapter, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does not include its racemic and levorotatory forms.

    (t) (24) "Opium poppy" means the plant of the species "Papaver somniferum L.", except its seeds.

    (u) (25) "Person" means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

    (v) (26) "Placebo" means an inert medicament or preparation administered or dispensed for its psychological effect, to satisfy a patient or research subject or to act as a control in experimental series.

    (w) (27) "Poppy straw" means all parts, except the seeds, of the opium poppy after mowing.

    (x) (28) "Practitioner" means:

    (1) (A) A physician, dentist, veterinarian, scientific investigator or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; or

    (2) (B) A pharmacy, hospital or other institution licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state.

    (29) "Presumptive probation" means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this article, notwithstanding contrary provisions of article twelve, chapter sixty-two of this code. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.

    (y) (30) "Production" includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance.

    (31) "Recovery program" means an evidence-based, nonclinical service that assists individuals and families working toward sustained recovery from substance use and other criminal risk factors. This can be done through an array of support programs and services that are delivered through residential and nonresidential means.

    (32) "Risk and needs assessment" or "validated risk and needs assessment" means an actuarial tool scientifically proven to determine a person's risk to reoffend and criminal risk factors, that when properly addressed, can reduce that person's likelihood of committing future criminal behavior.

    (z) (33) "State", when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof and any area subject to the legal authority of the United States of America.

    (34) "Treatment" when used in a criminal justice context, means targeted interventions that focus on criminal risk factors in order to reduce the likelihood of criminal behavior. Treatment options may include, but may not be limited to, community-based programs that are consistent with evidence-based practices, cognitive-behavioral programs, faith-based programs, inpatient and outpatient substance abuse or mental health programs, and other available prevention and intervention programs that have been scientifically proven to produce reductions in recidivism when implemented competently. "Treatment" does not include medical services.

    (aa) (35) "Ultimate user" means a person who lawfully possesses a controlled substance for his or her own use or for the use of a member of his or her household or for administering to an animal owned by him or her or by a member of his or her household.

§60A-1-102. Legislative findings and declaration.

    The Legislature hereby finds, determines, and declares that:

    (1) The regulation of controlled substances in this state is important and necessary for the preservation of public safety and public health; and

    (2) Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

ARTICLE 4. OFFENSES AND PENALTIES.

§60A-4-401. Prohibited acts A; penalties.

    (a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

    Any person who violates this subsection with respect to: (I)     (1)(A) Four grams or more of cocaine; (B) two grams or more of heroin or methamphetamine; © ten or more dosage units of a controlled substance classified in Schedule I or II, which and is a narcotic drug; or (D) any quantity of lysergic acid diethylamide, phencyclidine, gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers and analogues or flunitrazepam, including its salts, isomers or salts of isomers is guilty of a felony and, upon conviction, may be imprisoned in the state correctional confined in a correctional facility for not less than one year nor more than fifteen years, or fined not more than $25,000, or both fined and confined;

    (2) Any quantity of a controlled substance specified in subdivision (1) of this subsection in an amount less than the amounts specified, is guilty of a felony and, upon conviction, may be confined in a correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both fined and confined;

    (ii) Any other (3)(A) Ten or more dosage units of a controlled substance classified in Schedule I or II that is not a narcotic drug; or (B) twenty or more dosage units of a controlled substance classified in schedule III is guilty of a felony and, upon conviction, may be imprisoned in the state confined in a correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both fined and confined;

    (4) Any quantity of a controlled substance specified in subdivision (3) of this subsection in an amount less than the amounts specified, is guilty of a felony and, upon conviction, may be confined in a correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and confined;

    (iii) (5) A substance classified in Schedule IV is guilty of a felony and, upon conviction, may be imprisoned in the state correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both;

    (iv) A substance classified in or Schedule V is guilty of a misdemeanor and, upon conviction, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined: Provided, That for offenses relating to any substance classified as Schedule V in article ten of this chapter, the penalties established in said that article apply;

    (6) A quantity of a controlled substance specified in subdivision (5) of this subsection in an amount less than twenty dosage units, is subject to the imposition of presumptive probation as provided in section four hundred fourteen of this article; and

    (7) The amounts specified in subdivision (1) of this subsection may occur in a single transaction or in a series of transactions over a period of time not to exceed ninety days that cumulatively result in the quantities specified in this subsection.

    (b) Except as authorized by this act, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.

    Any person who violates this subsection with respect to:

    (I) (1) A counterfeit substance classified in Schedule I or II, which is a narcotic drug, is guilty of a felony and, upon conviction, may be imprisoned in the state confined in a correctional facility for not less than one year nor more than fifteen years, or fined not more than $25,000, or both fined and confined;

    (ii) (2) Any other counterfeit substance classified in Schedule I, II or III is guilty of a felony and, upon conviction, may be imprisoned in the state confined in a correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both fined and confined;

    (iii) (3) A counterfeit substance classified in Schedule IV is guilty of a felony and, upon conviction, may be imprisoned in the state confined in a correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and confined; and

    (iv) (4) A counterfeit substance classified in Schedule V is guilty of a misdemeanor and, upon conviction, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined: Provided, That for offenses relating to any substance classified as Schedule V in article ten of this chapter, the penalties established in said that article apply.

    © It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this act. Any person who violates this subsection is guilty of a misdemeanor and, disposition may be made under section four hundred seven of this article, subject to the limitations specified in said section, or upon conviction, such person may be confined in jail not less than ninety days nor more than six months, or fined not more than $1,000, or both fined and confined: Provided, That notwithstanding any other provision of this act to the contrary, any first offense for possession of Synthetic Cannabinoids as defined by subdivision (32) subsection (d), section 101, article 1 of this chapter; 3,4-methylenedioxypyrovalerone(MPVD) and 3,4-methylenedioxypyrovalerone and/or mephedrone as defined in subsection (f), section 101, article 1 of this chapter; or less than 15 fifteen grams of marijuana, shall be disposed of under said that section.

    (d) It is unlawful for any person knowingly or intentionally:

    (1) To create, distribute or deliver, or possess with intent to distribute or deliver, an imitation controlled substance; or

    (2) To create, possess or sell or otherwise transfer any equipment with the intent that such equipment shall be used to apply a trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, upon a counterfeit substance, an imitation controlled substance, or the container or label of a counterfeit substance or an imitation controlled substance.

    (3) Any person who violates this subsection is guilty of a misdemeanor and, upon conviction, may be imprisoned confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined. Any person being eighteen years old or more who violates subdivision (1) of this subsection and, in so doing, distributes or delivers an imitation controlled substance to a minor child who is at least three years younger than such person is guilty of a felony and, upon conviction, may be imprisoned in the state confined in a correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and confined.

    (4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who administers or dispenses a placebo.

§60A-4-407. Deferred prosecution.

    (a) Whenever any person who has not previously been convicted of any offense under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under section 401©, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section 408. The effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial. No person as to whom a dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial in response to any inquiry made of him or her for any purpose. There may be only one discharge and dismissal under this section with respect to any person.

    (b) After a period of not less than six months which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this chapter, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial, and conviction, pursuant to this section. If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior to his or her application to the court under this section has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement.

    (a) A defendant charged with his or her first or second offense under subsection ©, section four hundred one of this article, may enter a deferred prosecution program subject to the following provisions:

    (1) The defendant requests deferred prosecution in writing and the prosecutor agrees;

    (2) The defendant may not be required to plead guilty or enter an Alford plea as a condition of applying for participation in the deferred prosecution program;

    (3) The defendant agrees to the terms and conditions set forth by the prosecuting attorney and approved by the court, which may include any provision authorized for pretrial diversion pursuant to section twenty-two, article eleven, chapter sixty-one of this code; and

    (4) The maximum length of participation in the program shall be two years.

    (b) If a prosecutor denies a defendant's request to enter a deferred prosecution program, the prosecutor shall state on the record the substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.

    © If the defendant successfully completes the deferred prosecution program, the charges against the defendant shall be dismissed, and all records relating to the case, including, but not limited to, arrest records and records relating to the charges, shall be sealed. The offense shall be deemed never to have occurred, except for the purposes of determining the defendant's eligibility for deferred prosecution, and the defendant may not be required to disclose the arrest or other information relating to the charges or participation in the program unless required to do so by state or federal law.

    (d) If the defendant is charged with violating the conditions of the program, the court, upon motion of the prosecuting attorney, shall hold a hearing to determine whether the defendant violated the conditions of the program.

    (e) If the court finds that the defendant violated the conditions of the program, the court may, with the approval of the prosecutor:

    (1) Continue the defendant's participation in the program;

    (2) Change the terms and conditions of the defendant's participation in the program; or

    (3) Order the defendant removed from the program and proceed with ordinary prosecution for the offense charged.

    (f) If a person does not enter a deferred prosecution for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determined the defendant is not eligible for presumptive probation as defined by section four hundred fourteen of this article,

    © (g) Notwithstanding any provision of this code to the contrary, any person prosecuted pursuant to the provisions of this article whose case is disposed of pursuant to the provisions of this section shall be liable for any court costs assessable against a person convicted of a violation of section 401© of this article. Payment of such costs may be made a condition of probation.

    The costs assessed pursuant to this section, whether as a term of probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty, section four, article two-a, chapter fourteen, section four, article twenty-nine, chapter thirty and sections two, seven and ten, article five, chapter sixty-two of this code.

§60A-4-414. Presumptive Probation.

    (a) Any statute to the contrary notwithstanding, a defendant charged with an offense under this chapter for which a conviction may result in presumptive probation shall be placed on pretrial release on his or her own recognizance or on unsecured bond by the court subject to any conditions, other than bail, specified in articles eleven-a, eleven-b, eleven-c or twelve of chapter sixty-two of this code.

    (b) The provisions of this section may not be applied to a defendant who is found by the court to present a flight risk, or to be a danger to himself or herself or a danger to others.

    © If a court determines that a defendant is not to be released pursuant to subsection (b) of this section, the court shall document the reasons for denying the release in a written order.

§60A-4-415. Assessment and treatment program for first offenders of possession of controlled substance; rescission of treatment order; voiding of conviction; sealing of records.

    (a) A court may request a risk and needs assessment for any person found guilty of possession of a controlled substance pursuant to this article. The risk and needs assessment shall include a recommendation to the court as to whether treatment is indicated by the assessment, and, if so, the most appropriate treatment or recovery program environment. If treatment is indicated for the person, the court may order him or her to the appropriate treatment or recovery program that will effectively respond to the person's level of risk, criminal risk factors, and individual characteristics, a program of treatment or recovery not to exceed one year in duration may be prescribed. The person ordered to the designated treatment or recovery program shall present himself or herself for registration and initiation of the treatment or recovery program within five days of the date of sentencing. If, without good cause, the person fails to appear at the designated treatment or recovery program within the specified time, or if at any time during the program of treatment or recovery prescribed, the authorized director of the treatment or recovery program finds that the person is unwilling to participate in his or her treatment, the director shall notify the sentencing court. Upon receipt of notification, the court shall cause the person to be brought before it and may continue the order of treatment, or may rescind the treatment order and impose a sentence for the possession offense. Upon discharge of the person from the treatment or recovery program prior to the expiration of the one year period or upon satisfactory completion of one year of treatment, the person shall be deemed finally discharged from sentence.

    (b) The Secretary of the Department of Health and Human Resources, or his or her designee, shall inform the Supreme Court of Appeals of the identity and location of treatment or recovery programs to which a person may sentenced.

    © Transportation to an inpatient facility shall be provided by order of the court when the court finds the person unable to convey himself or herself to the facility within five days of sentencing by reason of physical infirmity or financial incapability.

    (d) The sentencing court shall immediately notify the designated treatment or recovery program of the sentence and its effective date.

    (e) The Secretary of the Department of Health and Human Resources, or his or her designee, may authorize transfer of the person from the initially designated treatment or recovery program to another treatment or recovery program for therapeutic purposes. The sentencing court shall be notified of termination of treatment by the terminating treatment or recovery program and shall be notified by the secretary of the new treatment or recovery program to which the person was transferred.

    (f) Responsibility for payment for treatment services rendered to persons pursuant to this section shall be as under the statutes pertaining to payment of patients and others for services rendered by the Department of Health and Human Resources, unless the person and the treatment or recovery program shall arrange otherwise.

    (g) None of the provisions of this section shall be deemed to preclude the court from exercising its usual discretion with regard to ordering probation or conditional discharge.

    (h) In the case of any person who has been convicted for the first time of a misdemeanor possession of controlled substances, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection may not be deemed a first offense for purposes of this article or deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Voiding of a conviction under this subsection and dismissal may occur only once with respect to any person.

    (I) If the court voids a conviction under this section, the court shall order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law-enforcement records. Every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records, shall certify to the court within sixty days of the entry of the order that the required sealing action has been completed.

    (j) After the sealing of the record, the proceedings in the matter may not be used against the defendant except for the purposes of determining the person's eligibility to have his or her conviction voided under subsection (h) of this section. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record has been sealed may not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.

    (k) Inspection of the sealed records may thereafter be permitted by the court upon a motion by the person who is the subject of the records and only to those persons named in the motion or upon a motion of the prosecutor to verify a defendant's eligibility to have his or her conviction voided under subsection (h) of this section.

CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 1. PRELIMINARY PROCEDURE.

§62-1-5a. Citation in lieu of arrest; failure to appear.

    (a) Except as provided in subsections (b) and © of this section, a law-enforcement officer may shall issue a citation instead of making an arrest for the following offenses, if there are reasonable grounds to believe that the person being cited will appear to answer the charge:

    (1) Any misdemeanor, not involving injury to the person, committed in a law-enforcement officer's presence: Provided, That the officer may arrest the person if he or she has reasonable grounds to believe that the person is likely to cause serious harm to himself or others; and

    (2) When any person is being detained for the purpose of investigating whether such person has committed or attempted to commit shoplifting, pursuant to section four, article three-a, chapter sixty-one of this code.

    (b) A law-enforcement officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:

    (1) A violation of articles two or eight of this code or involves the use of a firearm or other deadly weapon:

    (2) An offense in which the defendant poses a risk of danger to himself, herself, or another person; or

    (3) An offense in which the defendant refuses to follow the law-enforcement officer's reasonable instructions.

    © A law-enforcement officer shall make an arrest for violations of protective orders issued pursuant to article twenty-seven, chapter forty-eight of this code.

    (d) The citation issued pursuant to this section shall provide that the defendant shall appear within a designated time.

    (e) If the defendant fails to appear in response to the citation or if there are reasonable grounds to believe that he or she will not appear, a complaint may be made and a warrant shall issue. When a physical arrest is made and a citation is issued in relation to the same offense the officer shall mark on the citation, in the place specified for court appearance date, the word "arrested" in lieu of the date of court appearance.

ARTICLE 1C. BAIL.

§62-1C-3. Fixing of amount; bail may cover two or more charges.

    (a) The amount of bail shall be fixed by the court or justice magistrate with consideration given to the seriousness of the offense charged, the previous criminal record of the defendant, his or her financial ability, and the probability of his or her appearance. When two or more charges are filed or are pending against the same person at or about the same time, the bail given may be made to include all offenses charged against the defendant.

     (b) When a person has been charged with one or more misdemeanors, the amount of the bail for all charges shall be encompassed by a single amount of bail that may not exceed the amount of the fine and court costs for the one highest misdemeanor charged. This subsection shall apply only to misdemeanor offenses not involving physical injury or sexual contact.

    © When a person has been convicted of a misdemeanor offense and a sentence of jail, probation, conditional discharge, or sentence other than a fine only has been imposed, the amount of bail for release on appeal may not exceed double the amount of the maximum fine that could have been imposed for the one highest misdemeanor offense for which the person was convicted. This subsection shall apply only to misdemeanors not involving physical injury or sexual contact.

    (d) This section does not apply to a defendant who is found by the court to present a flight risk or to be a danger to others.

    (e) If a court determines that a defendant is not to be released pursuant to subsection (d) of this section, the court shall document the reasons for denying the release in a written order.

ARTICLE 11C. THE WEST VIRGINIA COMMUNITY CORRECTIONS ACT.

§62-11C-3a. Evidence-based practices to be used in community corrections programs; standards; funding restrictions.

    (a) As used in this section, "evidence-based practices" means supervision policies, procedures, treatment and intervention programs, and practices that scientific research demonstrates reduce or otherwise maintaining low recidivism among inmates and individuals on probation, parole, or other form of post-release supervision when implemented competently.

    (b) In order to increase the effectiveness of treatment and intervention programs funded by the state and provided by the West Virginia Community Corrections Fund, the Governor’s committee shall require that such programs use evidence-based practices.

    © The Governor’s committee shall measure the effectiveness of each community corrections program and demonstrate that the program has a documented evidence base and has been evaluated for effectiveness in reducing or otherwise maintaining low recidivism.

    (d) The Governor’s committee shall promulgate legislative rules to provide, at a minimum:

    (1) A process for reviewing the objective criteria for evidence-based practices established by the community corrections program;

    (2) A process for auditing the effectiveness of the program;

    (3) An opportunity for programs that do not meet the criteria based on the audit results to improve performance; and

    (4) A mechanism to defund any program that does not meet the criteria upon a second audit.

    (e) Beginning July 1, 2012, twenty-five percent of state moneys expended on programs shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2014, fifty percent of state moneys expended on programs shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2016 and thereafter, seventy-five percent of state moneys expended on programs shall be for programs that are in accordance with evidence-based practices.

    (f) By fiscal year 2015-2016, the Governor’s committee shall eliminate supervision policies, procedures, programs, and practices intended to reduce recidivism that scientific research demonstrates do not reduce recidivism. However, the Governor’s committee may utilize a new supervision policy, procedure, program, or practice if the Governor’s committee determines that the new supervision policy, procedure, program, or practice has the potential for qualifying as an evidence-based practice after more scientific research is conducted.

ARTICLE 12. PROBATION AND PAROLE.

§62-12-1a. Definitions.

    As used in this article:

    (1) "Case plan" means an individualized accountability and behavior change strategy for supervised individuals that:

    (A) Targets and prioritizes the specific criminal risk factors of the individual based upon his or her assessment results;

    (B) Matches the type and intensity of supervision and treatment conditions to the individual's level of risk, criminal risk factors, and individual characteristics, such as gender, culture, motivational stage, developmental stage, and learning style;

    © Establishes a timetable for achieving specific behavioral goals, including a schedule for payment of victim restitution, child support, and other financial obligations; and

    (D) Specifies positive and negative actions that will be taken in response to the supervised individual's behaviors.

    (2) "Criminal risk factors" are characteristics and behaviors that, when addressed or changed, affect a person's risk for committing crimes. The characteristics may include, but are not limited to, the following risk and criminogenic need factors: Antisocial behavior; antisocial personality; criminal thinking; criminal associates; dysfunctional family; low levels of employment or education; poor use of leisure and recreation; and substance abuse.

    (3) "Evidence-based practices" means policies, procedures, programs and practices proven by scientific research to reliably produce reductions or otherwise maintain low recidivism when implemented competently.

    (4) "Graduated sanction" means any of a wide range of accountability measures and programs for supervised individuals, including, but not limited to, electronic monitoring; drug and alcohol testing or monitoring; day or evening reporting centers; restitution centers; disallowance of future earned compliance credits; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation and parole officers; community service or work crews; secure or unsecure residential treatment facilities or halfway houses; and short-term or intermittent incarceration.

    (5) "Risk and needs assessment" or "validated risk and needs assessment" means an actuarial tool scientifically proven to determine a person's risk to reoffend and criminal risk factors, that when properly addressed, can reduce that person's likelihood of committing future criminal behavior.

    (6) "Supervised individual" means an individual placed on probation by a court or serving a period of parole or post-release supervision from prison.

    (7) "Treatment" when used in a criminal justice context, means targeted interventions that focus on criminal risk factors in order to reduce the likelihood of criminal behavior. Treatment options may include, but may not be limited to, community-based programs that are consistent with evidence-based practices; cognitive-behavioral programs; faith-based programs; inpatient and outpatient substance abuse or mental health programs; and other available prevention and intervention programs that have been scientifically proven to produce reductions in recidivism when implemented competently. "Treatment" does not include medical services.

§62-12-5a. Evidence-based practices to be used in supervision and intervention programs; standards; funding restrictions.

    (a) As used in this section, "evidence-based practices" means intervention programs and supervision policies, procedures, programs, and practices that scientific research demonstrate reductions in instances of a defendant's failure to appear in court and criminal activity among pretrial defendants when implemented competently.

    (b) In order to increase the effectiveness of supervision and intervention programs funded by the state and provided to pretrial defendants, the Supreme Court of Appeals shall require that a vendor or contractor providing supervision and intervention programs for adult criminal defendants use evidence-based practices.

    © The Supreme Court of Appeals shall measure the effectiveness of supervision and intervention programs provided by vendors or contractors and demonstrate that the programs have a documented evidence base and have been evaluated for effectiveness in reducing a defendant's failure to appear in court and criminal activity.

    (d) The Supreme Court of Appeals shall require, at a minimum, the following:

    (1) A process for reviewing the objective criteria for evidence-based practices established by the vendor or contractor providing the program;

    (2) A process for auditing the effectiveness of the program;

    (3) An opportunity for programs that do not meet the criteria based on the audit results to improve performance; and

    (4) A mechanism to defund any program provided by a vendor or contractor that does not meet the criteria upon a second audit.

    (e) Beginning July 1, 2012, twenty-five percent of state moneys expended on supervision and intervention programs for pretrial defendants shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2014, fifty percent of state moneys expended on supervision and intervention programs shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2016 and thereafter, seventy-five percent of state moneys expended on supervision and intervention programs shall be for programs that are in accordance with evidence-based practices.

§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 served, and subject to the limitations hereinafter provided, shall release any inmate on parole for terms and upon conditions as are provided by this article.

    (b) Any inmate of a state correctional center is eligible for parole if he or she:

    (1)(A) Has served the minimum term of his or her indeterminate sentence or has served one fourth of his or her definite term sentence, as the case may be; or

    (B) He or she:

    (I) Has applied for and been accepted by the Commissioner of Corrections into an accelerated parole program;

    (ii) Does not have a prior criminal conviction for a felony crime of violence against the person, a felony offense involving the use of a firearm, or a felony offense where the victim was a minor child;

    (iii) Has no record of institutional disciplinary rule violations for a period of one hundred twenty days prior to parole consideration unless the requirement is waived by the commissioner;

    (iv) Is not serving a sentence for a crime of violence against the person, or more than one felony for a controlled substance offense for which the inmate is serving a consecutive sentence, a felony offense involving the use of a firearm, or a felony offence where the victim was a minor child; and

    (v) Has successfully completed a rehabilitation treatment program created with the assistance of a standardized risk and needs assessment;

    (I) As used in this section “felony crime of violence against the person” means felony offenses set forth in article two, three-e, eight-b or eight-d of chapter sixty-one of this code; and

    (II) As used in this section “felony offense where the victim was a minor child” means any felony crime of violence against the person and any felony violation set forth in article eight, eight-a, eight-c or eight-d of chapter sixty-one of this code.

    © Notwithstanding any provision of this code to the contrary, any person who committed, or attempted to commit a felony with the use, presentment or brandishing of a firearm, is not 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, is not 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 is greater. Nothing in this paragraph applies 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. A person is not ineligible for parole under the provisions of this paragraph because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm unless that fact is clearly stated and included in the indictment or presentment by which the person was charged and was either: (I) Found by the court at the time of trial upon a plea of guilty or nolo contendere; (ii) found by the jury, upon submitting to the 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" means 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.

    (D) The amendments to this subsection adopted in the year 1981:

    (I) Apply to all applicable offenses occurring on or after August 1 of that year;

    (ii) Apply with respect to the contents of any indictment or presentment returned on or after August 1 of that year irrespective of when the offense occurred;

    (iii) 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 the jury on or after August 1 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 gives 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 the finding will 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) Does not apply with respect to cases not affected by the amendments and in such cases the prior provisions of this section apply and are construed without reference to the amendments.

    (1) Insofar as the amendments relate to mandatory sentences restricting the eligibility for parole, all matters requiring a mandatory sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court;

    (2) Is not in punitive segregation or administrative segregation as a result of disciplinary action;

    (3) Has 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) Has prepared and 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. The Commissioner of Corrections or his or her designee shall review the plan to be reviewed and investigated and provide recommendations to the board as to the suitability of the plan: Provided, That in cases in which there is a mandatory thirty-day notification period required prior to the release of the inmate, pursuant to section twenty-three of this article, the board may conduct an initial interview and deny parole without requiring the development of a plan. In the event the board does not believe parole should be denied, it may defer a final decision pending completion of an investigation and receipt of recommendations. Upon receipt of the plan together with the investigation and recommendation, the board, through a panel, shall make a final decision regarding the granting or denial of parole; and

    (5) Has satisfied the board that if released on parole he or she will not constitute a danger to the community.

    © Except in the case of a person 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. A person sentenced for life may not be paroled until he or she has served ten years, and a person sentenced for life who has been previously twice convicted of a felony may not be paroled until he or she has served fifteen years: Provided, That a person convicted of first degree murder for an offense committed on or after June 10, 1994, is not eligible for parole until he or she has served fifteen years.

    (d) In the case of a person sentenced to any state correctional center, it is the duty of the board, as soon as to ensure that all persons who have longer than ninety days to serve, are considered for parole not less than sixty days prior to the date a person becomes eligible to consider the advisability of his or her release on for parole.

    (e) If, upon consideration, parole is denied, the board shall promptly notify the inmate of the denial. The board shall, at the time of denial, notify the inmate of the month and year he or she may apply for reconsideration and review. The board shall at least once a year reconsider and review the case of every inmate who was denied parole and is still eligible: Provided, That the board may reconsider and review parole eligibility anytime within three years following the denial of parole of an inmate serving a life sentence with the possibility of parole.

    (f) 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 apply to such inmates.

    (g) The board shall, with the approval of the Governor, adopt rules governing the procedure in the granting of parole. No provision of this article and none of the rules adopted hereunder are intended or may 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.

    (h) The Division of Corrections shall promulgate policies and procedures for developing a rehabilitation treatment plan created with the assistance of a standardized risk and needs assessment. The policies and procedures shall include, but not be limited to, policy and procedures for screening and selecting inmates for rehabilitation treatment and development and use of standardized risk and needs assessment tools. An inmate shall may not be paroled solely due to having successfully completed a rehabilitation treatment plan but completion of all the requirements of a rehabilitation parole plan along with compliance with the requirements of subsection (b) of this section shall create a rebuttable presumption that parole is appropriate. The presumption created by this subsection may be rebutted by a parole board finding that at the time parole release is sought the inmate still constitutes a reasonable risk to the safety or property of other persons if released. Nothing in subsection (b) of this section or in this subsection may be construed to create a right to parole.

    (I) Notwithstanding the provisions of subsection (b) of this section, the parole board may, in its discretion, grant or deny parole to an inmate against whom a detainer is lodged by a jurisdiction other than West Virginia for service of a sentence of incarceration, upon a written request for parole from the inmate. A denial of parole under this subsection shall preclude consideration for a period of one year or until the provisions of subsection (b) of this section are applicable.

    (j) Where an inmate is otherwise eligible for parole pursuant to subsection (b) of this section but the parole board determines that the inmate should participate in an additional program or complete an assigned task or tasks prior to actual release on parole, the board may grant parole contingently, effective upon successful completion of the program or assigned task or tasks, without the need for a further hearing. The Commissioner of Corrections shall provide notice to the parole board of the imminent release of a contingently paroled inmate to effectuate appropriate supervision.

    (k) The Division of Corrections is 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.

    (l)(1) When considering an inmate of a state correctional center for release on parole, the parole board panel considering the parole is to 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 the inmate is sentenced:

    (A) 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;

    (B) 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;

    © 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;

    (D) On physical, mental and psychiatric examinations of the inmate conducted, insofar as practicable, within the two months next preceding parole consideration by the board; and

    (E) On the results of an inmate’s validated risk and needs and any other scientific means for personality analysis that may hereafter be developed, to define the terms and intensity of supervision before granting parole. The terms and intensity of supervision shall be based on an individual's level of risk to public safety, criminal risk factors, and the need for treatment and other interventions.

    (2) The board panel considering the parole may waive the requirement of any 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 the waiver: Provided, That in the case of an inmate who is incarcerated because the 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 of said that chapter, the board panel may not waive the report required by this subsection and the report is to include a study and diagnosis including 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 the study or diagnosis may 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 the information disclosed indicates the intention or plans of the parolee to do harm to any person, animal, institution or to property. Progress reports of outpatient treatment are to be made at least every six months to the parole officer supervising the 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.

    (m) Before releasing any inmate on parole, the board of parole shall arrange for the inmate to appear in person before a parole board panel and the panel 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: Provided, That an inmate may appear by video teleconference if the members of the panel conducting the examination are able to contemporaneously see the inmate and hear all of his or her remarks and if the inmate is able to contemporaneously see each of the members of the panel conducting the examination and hear all of the members' remarks. The panel shall reach its own written conclusions as to the desirability of releasing the inmate on parole and the majority of the panel 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 are to be kept on permanent file.

    (n) The board and its designated agents are at all times to have access to inmates imprisoned in any state correctional center confined in a correctional facility or in any jail in this state and may 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.

    (o) 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.

    (p) Prior to making a recommendation for pardon, reprieve or commutation and prior to releasing any inmate on parole, the board shall notify the sentencing judge and prosecuting attorney at least ten days before the recommendation or parole.

    (q) 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.

    ® Except for the amendments to this section contained in subdivision (4), subsection (b) and subsection (I) of this section the amendments to this section enacted during the 2010 regular session of the Legislature shall become effective on January 1, 2011.

§62-12-18. Period of parole; mandatory rentry supervision; discharge

    (a) 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, a panel of 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.

    (b) 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 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.

     © The board shall order mandatory reentry supervision and the terms of supervision, which may include electronic monitoring, for an inmate who has not been granted discretionary parole six months prior to the inmate's minimum expiration of sentence.

    (1) An inmate granted mandatory reentry supervision pursuant to this section may be returned by the board to a correctional facility for violation of the conditions of supervision and may not again be eligible for mandatory reentry supervision during the same period of incarceration.

    (2) An inmate released to mandatory reentry supervision shall be considered to be released on parole.

    (3) Mandatory reentry supervision is not a commutation of sentence or any other form of clemency.

    (4) The board shall consider an inmate's risk and needs assessment results when setting the terms and conditions of mandatory reentry supervision.

    (5) Subject to subdivision (1) of this subsection, the period of mandatory reentry supervision shall conclude upon completion of the individual's minimum expiration of sentence.

§62-12-29. Policies or rules requiring supervision and treatment               in accordance with evidence-based practices.

    (a) The Commissioner of the Division of Corrections and the Supreme Court of Appeals shall each promulgate policies or rules that require the supervision and treatment of supervised individuals in accordance with evidence-based practices.

    (b) The policies or rules shall, at a minimum, include:

    (1) The administration of a validated risk and needs assessment on all supervised individuals at regular intervals to determine their criminal risk factors and to identify intervention targets;

    (2) Use of assessment scores and other objective criteria throughout the period of community supervision to determine the risk level and program needs of each supervised individual;

    (3) Caseload size guidelines that are based on supervised individuals' risk levels and take into account resources and employee workload and prioritization of supervision and program resources for supervised individuals who are at higher risk to reoffend;

    (4) Definitions of various risk levels to apply to supervised individuals during the period of community supervision;

    (5) Development of a case plan for each individual who is assessed to be moderate-to-high risk based on the risk and needs assessment, that targets the criminal risk factors identified in the assessment, is responsive to individual characteristics, and provides supervision of offenders according to that case plan;

    (6) Implementation of swift, certain, proportionate, and graduated sanctions that a parole officer shall apply in response to a supervised individual's noncompliant behaviors; and

    (7) Establishment of protocols and standards that assess the degree to which policies, procedures, programs, interventions, and practices relating to offender recidivism reduction, whether utilized by the department or contract or referral agencies, are evidence-based.

§62-12-30. Training and professional development for personnel concerning implementation of evidence-based practices.

    (a) The Division of Corrections and the Supreme Court of Appeals shall each provide its probation and parole officers with intensive initial and on-going training and professional development services to support the implementation of evidence-based practices.

    (b) The training and professional development services shall include assessment techniques, case planning, risk reduction and intervention strategies, effective communication skills, cognitive-behavioral treatment, substance abuse, and other topics identified by the Division or the Supreme Court of Appeals.

§62-12-31. Annual report on efforts to implement evidence-based               practices to reduce recidivism.

    By December 1 of each year, beginning in 2012, the Commissioner of the Division of Corrections and the Chief Justice of the Supreme Court of Appeals shall each submit to the Governor and the Legislature, a comprehensive report on its efforts to implement evidence-based practices to reduce recidivism. The report shall include at a minimum:

    (1) The percentage of supervised individuals being supervised in accordance with evidence-based practices;

    (2) The percentage of state moneys expended by the Division of Corrections and the Supreme Court of Appeals for programs that are evidence based, and a list of all programs with identification of which are evidence based;

    (3) Specification of supervision policies, procedures, programs, and practices that were created, modified or eliminated; and

    (4) The commissioner’s and the chief justice’s recommendations for resource allocation, and any additional collaboration with other state, regional, or local public agencies, private entities, or faith-based and community organizations.

§62-12-32. Duties of Division of Corrections and Supreme Court of               Appeals concerning risk and needs assessment               instrument.

    The Division of Corrections and the Supreme Court of Appeals each shall:

    (1) Conduct an initial administration of a validated risk and needs assessment instrument on supervised individuals upon intake to community supervision, unless an initial assessment has been previously conducted within a reasonable time period as specified in rules promulgated by the Division of Corrections or the Supreme Court of Appeals;

    (2) While the supervised individual is on community supervision, readminister the risk and needs assessment at regular intervals as determined by policy or rules promulgated pursuant to section twenty-nine of this article;

    (3) Apply the results of the risk and needs assessment to:

    (A) Establish an appropriate level of supervision;

    (B) Determine the content of a case plan that addresses the supervised individual’s criminal needs; and

    © Respond to compliant and noncompliant behavior; and

    (4) Promulgate policies or rules to determine appropriate levels of supervision, guidelines for case planning, and guidelines for responses to specified behavior by supervised individuals.

§62-12-33. Compliance credits for parolees.

    (a) An individual on parole shall receive compliance credits to be applied toward the individual's sentence, if the paroled individual does all of the following:

    (1) Fulfills the terms of his or her case plan;

    (2) Has no new arrests; and

    (3) Makes scheduled monthly payments for restitution.

    (b) The Division of Corrections shall promulgate a policy for the awarding of earned compliance credits to an individual who is on parole.

§62-12-34. Graduated sanctions for probation violations; administrative rules.

    (a) The Supreme Court of Appeals shall promulgate rules to develop a system of graduated sanctions for responding to violations of probation that otherwise do not involve the commission of new crimes.

    (b) The rules shall create a system of graduated sanctions with the following objectives:

    (1) Responding quickly and consistently to violations of probation, based on the nature of the violation and the risk level of the supervised individual;

    (2) Reducing the time and resources expended by the probation officers and the courts to respond to violations; and

    (3) Reducing the commission of new crimes and revocation rates.

§62-12-35. Early termination of probation; rules.

    (a) The Supreme Court of Appeals shall promulgate rules to establish procedures to:

    (1) Recommend to the court the early termination of probation for a supervised individual who has:

    (A) Fulfilled the terms of his or her case plan;

    (B) No new arrests;

    © Demonstrated a reduction in criminal risk factors upon reassessment; and

    (D) Fulfilled all restitution and substantially fulfilled all other financial obligations to the court.

    (2) Review the compliance of the individual on probation with the requirements in subdivision (1) of this subsection. This review for compliance shall occur at the same time as the regular reassessment pursuant to sections twenty-nine and thirty-two of this article.

    (b) A probation officer shall petition the court with a request for early termination if the individual on probation has:

    (1) Complied with the requirements in subdivision (1), subsection (a) of this section;

    (2) Completed at least eighteen months of his or her term of supervision; and

    (3) Not violated the terms of his or her supervision in the last twelve months.

§62-12-36. Administrative caseload supervision program for supervised offenders; rules.

    (a) The Commissioner of the Division of Corrections and the Supreme Court of Appeals each shall promulgate policies or rules in accordance with the provisions of this section to establish an administrative caseload supervision program for supervised individuals whose results from a risk and needs assessment indicate that they are low-risk offenders.

    (b) The administrative caseload supervision program shall consist of monitoring supervised individuals to ensure that they have not engaged in new criminal activity and are fulfilling financial obligations to the court.

    © If a supervised individual on administrative caseload supervision:

    (1) Does not fulfill his or her restitution or other financial obligations to the court, he or she may be placed on a higher level of supervision at the discretion of the supervising officer; or

    (2) Engages in criminal activity, he or she may be prosecuted, revoked, or placed on a higher level of supervision; or

    (3) Exhibits signs or symptoms of a substance abuse disorder, he or she may be assessed for consideration of admission into a drug court.

    (d) A supervised individual on a higher level of supervision who demonstrates a reduction in criminal risk factors upon reassessment and who has achieved the goals established in his or her case plan may be placed on administrative caseload supervision.

    (e) A supervised individual on a higher level of supervision shall presumptively be placed on administrative supervision if he or she has:

    (1) Completed twelve months of community supervision;

    (2) Not violated the terms of his or her community supervision in the previous twelve months;

    (3) Fulfilled all restitution and other financial obligations to the court;

    (4) Demonstrated a reduction in criminal risk factors upon reassessment; and

    (5) Achieved the goals established in his or her case plan.

    (f) If the conditions or level of community supervision of a probationer are modified under this section, the probation officer shall file a copy of the modified conditions or level with the sentencing court.

    (g) The Division of Correction and the Supreme Court of Appeals each may establish, by policy or rule, conditions for overriding presumptive administrative supervision.

§62-12-37. Supervised individuals; sanctions.

A person on probation or parole 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.

§62-12-38. System of graduated sanctions for violations of conditions of community supervision; rules.

    (a) The Division of Corrections and the Supreme Court of Appeals each shall, by January 1, 2013, adopt a system of graduated sanctions for violations of conditions of community supervision. Notwithstanding sections ten and nineteen of this article, 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 may receive for compliance with conditions of supervision.

    (b) The Division of Corrections and the Supreme Court of Appeals each shall establish, by policy or rules, an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.

    © The Division of Corrections shall establish a policy to review graduated sanctions contested by supervised individuals under this section.

§62-12-39. Modification of conditions of community supervision; imposition of graduated sanctions.

    (a) Notwithstanding any policy, rule or law to the contrary, a probation or parole officer may:

    (1) Modify the conditions of community supervision for the limited purpose of imposing graduated sanctions; and

    (2) 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 ten days consecutively, and not more than thirty days in any one calendar year. The Division of Corrections shall reimburse the local correctional or detention facility or residential center for the costs of incarcerating a parolee confined under this subdivision at the rate authorized by section ten-a, article twenty, chapter thirty-one of this code.

    (b) A probation and parole 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 violation or violations alleged, the date or dates of the violation or violations, and the graduated sanction to be imposed.

    © The imposition of a graduated sanction or sanctions by a probation and parole officer shall comport with the system of graduated sanctions adopted by the Division of Corrections and the Supreme Court of Appeals section thirty-eight of this article. 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 shall constitute a violation of community supervision.

    (d) If the supervised individual objects to the imposition of the sanction or sanctions, then the parole or probation officer shall present the violations to the court or parole board respectively, for formal adjudication.

    (e) If the graduated sanction involves confinement in a correctional or detention facility, confinement shall be approved by the Director of Parole Services of the Division of Corrections or the Director of Probation for the Supreme Court of Appeals, but the supervised individual may be taken into custody while such approval is obtained. If the supervised individual is employed, the probation and parole officer shall, to the extent feasible, impose this sanction on weekend days or other days and times when the supervised individual is not working.

    (f) A sanction that confines a supervised individual in a correctional or detention facility for a period of more than ten 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 board of parole.

    (g) Upon successful completion of a graduated sanction or sanctions, a court or the board of parole may not revoke the term of community supervision or impose additional sanctions for the same violation: Provided, That nothing herein shall prohibit such graduated sanction from being considered as an aggravating factor for a sanction for any subsequent violation of terms and conditions of parole or probation.

    (h) If a probation and parole officer modifies the conditions of community supervision by imposing a graduated sanction, the officer shall:

    (1) Deliver a copy of the modified conditions to the supervised individual;

    (2) File a copy of the modified conditions with the sentencing court or releasing authority; and

    (3) Note the date of delivery of the copy in the supervised individual’s file or case management system.

§62-12-40. Judicial determination of conditions of community supervision.

    For supervised individuals on probation, 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 probation officer supervising the individual shall, in accordance with section thirty-eight of this article, impose graduated sanctions for violations of the conditions of community supervision.

§62-12-41. Quarterly review of recommended confinement sanctions.

    The Director of Parole Services of the Division of Corrections and the Director of Probation for the Supreme Court of Appeals shall review confinement sanctions recommended by probation and parole officers on a quarterly basis to assess any 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 number and type of revocations for violations of the conditions of supervision.

ARTICLE 13. CORRECTIONS MANAGEMENT.

§62-13-1. Sentencing policy.

     It is the sentencing policy of the state that:

    (1) The primary objective of sentencing shall be to maintain public safety and hold offenders accountable while reducing or otherwise maintaining low recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;

    (2) Reduction or maintenance of low recidivism and criminal behavior is a key measure of the performance of the criminal justice system;

    (3) Sentencing judges shall consider:

    (A) Beginning July 1, 2013, the results of a defendant's risk and needs assessment included in the presentence investigation; and

    (B) The likely impact of a potential sentence on the reduction of the defendant's potential future criminal behavior;

    (4) All supervision and treatment programs provided for defendants shall utilize evidence-based practices to reduce the likelihood of future criminal behavior; and

    (5) All supervision and treatment programs shall be evaluated at regular intervals to measure and ensure reduction of criminal behavior by defendants in the criminal justice system.

ARTICLE 16. INTERMEDIATE PUNISHMENT.

§62-16-1. Short Title.

    This article may be known and cited as the “Intermediate Punishment Act.”

§62-16-2. Findings and purpose.

    The Legislature finds that:

    (1) Many crimes are committed by persons who, because of their addiction to drugs or alcohol, are unable to maintain gainful employment.

    (2) These persons often commit crimes as a means of obtaining the funds necessary to purchase drugs or alcohol.

    (3) Many persons commit crimes while under the influence of drugs or alcohol even though they are not addicted to such substances in a clinical sense.

    (4) Punishing persons who commit crimes is an important aspect of recognizing the harm that criminals visit upon their victims.

    (5) Many people who commit crimes will be able to become law-abiding, contributing members of society if they are able to obtain treatment for their drug or alcohol addiction or abuse.

    (6) The purpose of this article is to create a program that punishes persons who commit crimes, but also provides treatment that offers the opportunity for those persons to address their drug or alcohol addiction or abuse and thereby reduce the incidents of recidivism and enhance public safety.

§62-16-3. Definitions.

    The following words and phrases, when used in this article, shall have the meanings given to them in this section unless the context clearly indicates otherwise:

    (1) "Community-based therapeutic community" means a long-term residential addiction treatment program licensed by the Division of Health to provide addiction treatment services using a therapeutic community model and determined by the Division of Corrections to be qualified to provide addiction treatment to eligible offenders.

    (2) "Court" means the trial judge exercising sentencing jurisdiction over an eligible offender under this article.

    (3) "Defendant" means an individual charged with a drug-related offense.

    (4) "Division" means the Division of Corrections.

    (5) "Drug offender treatment program" means an individualized treatment program established by the Division of Corrections consisting primarily of drug and alcohol addiction treatment that satisfies the terms and conditions contained in section five of this article.

    (6) "Drug-related offense" means a criminal offense for which a defendant is convicted and that the court determines was motivated by the defendant's consumption of or addiction to alcohol or a controlled substance, counterfeit substance, drug, immediate precursor or marijuana, as those terms are defined in the chapter sixty-a of this code.

    (7) "Eligible offender" means a defendant designated by the sentencing court as a person convicted of a drug-related offense who:

    (A) Has undergone an assessment performed by the Division of Corrections, which assessment has concluded that the defendant is in need of drug and alcohol addiction treatment and would benefit from commitment to a drug offender treatment program and that placement in a drug offender treatment program would be appropriate.

    (B) Does not demonstrate a history of present or past violent behavior.

    © Would be placed in the custody of the division if not sentenced to an intermediate punishment.

    (D) Provides written consent permitting release of information pertaining to the defendant's participation in a drug offender treatment program.

    The term does not include a defendant who committed, or attempted to commit a felony with the use, presentment or brandishing of a firearm, as defined pursuant to section thirteen, article twelve, of this chapter, or who has been convicted of violating of a felony or of any offense described in section twelve, article eight, chapter sixty-one of this code, or in article eight-a, eight-b, eight-c, or eight-d, chapter sixty-one of this code against a child.

    (8) "Expulsion" means the permanent removal of a participant from a drug offender treatment program.

    (9) "Group home" means residential program that is contracted out by the Division of Corrections to a private service provider for inmates with prerelease status or who are on parole.

    (10) "Individualized drug offender treatment plan" means an individualized addiction treatment plan within the framework of the drug offender treatment program.

    (11) "Institutional therapeutic community" means a residential drug treatment program in a state correctional facility, accredited as a therapeutic community for treatment of drug and alcohol abuse and addiction by the American Correctional Association or other nationally recognized accreditation organization for therapeutic community drug and alcohol addiction treatment.

    (12) "Outpatient addiction treatment facility" means an addiction treatment facility licensed by the Division of Health and designated by the Division of Corrections as qualified to provide addiction treatment to criminal justice offenders.

    (13) "Participant" means an eligible offender sentenced to intermediate punishment pursuant to this article.

    (14) "Transitional residence" means a residence investigated and approved by the Division of Corrections as appropriate for housing a participant in a drug offender treatment program.

    (15) "Work-release center" means residential program for inmates with prerelease status or who are on parole.

§62-16-4. Referral to program.

    (a) Referral for evaluation. --

    (1) Prior to imposing a sentence, the court may, upon motion of the prosecuting attorney and agreement of the defendant, commit a defendant to the custody of the division for the purpose of evaluating whether the defendant would benefit from a drug offender treatment program and whether placement in the drug offender treatment program is appropriate.

    (2) Upon committing a defendant to the division, the court shall forward to the division:

    (A) A summary of the offense for which the defendant has been convicted.

    (B) Information relating to the defendant's history of delinquency or criminality, including the information relating to juvenile matters maintained by the court under article five, chapter forty-nine of this code, when available.

    © Information relating to the defendant's history of drug or alcohol abuse or addiction, when available.

    (D) A presentence investigation report, when available.

    (E) Any other information the court deems relevant to assist the division with its assessment of the defendant.

    (b) Assessment of addiction. --

    (1) The division shall conduct an assessment of the addiction and other treatment needs of a defendant and determine whether the defendant would benefit from a drug offender treatment program. The assessment shall be conducted using a nationally recognized assessment instrument or an instrument that has been normed and validated on the division's inmate population by a recognized expert in such matters. The assessment instrument shall be administered by persons skilled in the treatment of drug and alcohol addiction and trained to conduct assessments. The assessments shall be reviewed and approved by a supervisor with at least three years of experience providing drug and alcohol counseling services.

    (2) The division shall conduct risk and other assessments it deems appropriate and shall provide a report of its assessments to the court, the defendant and the prosecuting attorney within sixty days of the court's commitment of the defendant to the custody of the division.

    © Proposed drug offender treatment program. -- If the division in its discretion believes a defendant would benefit from a drug offender treatment program and placement in the drug offender treatment program is appropriate, the division shall provide the court, the defendant and the prosecuting attorney with a proposed drug offender treatment program detailing the type of treatment proposed.

    (d) Prerequisites for commitment. -- Upon receipt of a recommendation for placement in a drug offender treatment program from the division and the agreement of the prosecuting attorney and the defendant, the court may sentence an eligible offender to a period of twenty-four months of intermediate punishment if the court finds that:

    (1) The eligible offender is likely to benefit from intermediate punishment.

    (2) Public safety would be enhanced by the eligible offender's participation in intermediate punishment.

    (3) Sentencing the eligible offender to intermediate punishment would not depreciate the seriousness of the offense.

    (e) Resentencing. -- The division may make a written request to the sentencing court that an offender who is otherwise eligible but has not been referred for evaluation or originally sentenced to intermediate punishment, be sentenced to intermediate punishment. The court may resentence the offender to intermediate punishment if all of the following apply:

    (1) The division has recommended placement in a drug offender treatment program;

    (2) The prosecuting attorney and the offender have agreed to the placement and modification of sentence;

    (3) The court makes the findings set forth under subsection (d) of this section;

    (4) The resentencing has occurred within three hundred sixty- five days of the date of the defendant's admission to the custody of the division; and

    (5) The court has otherwise complied with all other requirements for the imposition of sentence including victim notification under section eight, article eleven-a, chapter sixty-one of this code.

    (f) Consecutive probation. -- Nothing in this article shall prohibit the court from sentencing an eligible offender to a consecutive period of probation. The total duration of the sentence may not exceed the maximum term for which the eligible offender could otherwise be sentenced.

    (g) Applicability and program limitations. -- The court may not modify or alter the terms of the division's proposed individualized drug offender treatment plan without the agreement of the division and the prosecuting attorney.

§62-16-5. Drug offender treatment program.

    (a) Establishment. -- The division shall establish and administer a drug offender treatment program as an intermediate punishment. The program shall be designed to address the individually assessed drug and alcohol abuse and addiction needs of a participant and shall address other issues essential to the participant's successful reintegration into the community, including, but not limited to, educational and employment issues.

    (b) Duration and components. -- Notwithstanding any credit to which the defendant may be entitled under section twenty-four, article eleven, chapter sixty-one of this code, the duration of the drug offender treatment program shall be twenty-four months and shall include the following:

    (1) A period in a correctional facility of not less than seven months. This period shall include:

    (A) The time during which the defendant is evaluated by the division under subsection (b), section four of this article; and

    (B) Following evaluation under paragraph (A) of this subdivision, not less than four months shall be in an institutional therapeutic community.

    (2) A period of treatment in a community-based therapeutic community of at least two months;

    (3) A period of at least six-months' treatment through an outpatient addiction treatment facility. During the outpatient addiction treatment period of the drug offender treatment program, the participant may be housed in a work-release center or group home or placed in an approved transitional residence. The participant must comply with any conditions established by the division regardless of where the participant resides during the outpatient addiction treatment portion of the drug offender treatment program; and

    (4) A period of supervised reintegration into the community for the balance of the drug offender treatment program, during which the participant shall continue to be supervised by the division and comply with any conditions imposed by the division.

    © Program management. --

    (1) Consistent with the minimum time requirements set forth in subsection (b) of this section, the division may transfer, at its discretion, a participant between a correctional facility, an institutional therapeutic community, a community-based therapeutic community, an outpatient addiction treatment program and an approved transitional residence. The division may also transfer a participant back and forth between less restrictive and more restrictive settings based upon the participant's progress or regression in treatment or for medical, disciplinary or other administrative reasons.

    (2) This subsection shall be construed to provide the division with the maximum flexibility to administer the drug offender treatment program both as a whole and for individual participants.

    (d) Right of refusal to admit. -- The administrator of a community-based therapeutic community or outpatient addiction treatment facility may refuse to accept a participant whom the administrator deems to be inappropriate for admission and may immediately discharge to the custody of the division any participant who fails to comply with facility rules and treatment expectations or refuses to constructively engage in the treatment process.

    (e) Notice to court of completion of program. -- When the division determines that a participant has successfully completed the drug offender treatment program, it shall notify the sentencing court and the prosecuting attorney.

    (f) Expulsion from program. --

    (1) A participant may be expelled from the drug offender treatment program at any time in accordance with guidelines established by the division, including failure to comply with administrative or disciplinary procedures or requirements set forth by the division.

    (2) The division shall promptly notify the court, the defendant and the prosecuting attorney of the expulsion of a participant from the drug offender treatment program and the reason for such expulsion. The participant shall be housed in a correctional facility or regional jail pending action by the court.

    (3) The court shall schedule a prompt intermediate punishment revocation hearing pursuant section eight.

§62-16-6. Guidelines and legislative rules.

    (a) The division shall develop written guidelines for participant selection criteria and the establishment of drug offender treatment program and shall address suspensions and expulsions from the drug offender treatment program. The guidelines are not subject to chapter twenty-nine-a of this code and shall be effective for a period of two years upon publication in the State Register.

    (b) The guidelines developed pursuant to subsection (a) of this section shall be replaced by legislative rules proposed by the division and promulgated pursuant to the provision of chapter twenty-nine-a, within the two-year period during which the guidelines are effective as provided in that subsection (a). The legislative rules shall include a requirement that community-based therapeutic communities utilized in the drug offender treatment program be accredited as a therapeutic community for treatment of drug and alcohol abuse and addiction by the Commission on Accreditation of Rehabilitation Facilities or other nationally recognized accreditation organization for community-based therapeutic communities for drug and alcohol addiction treatment.

§62-16-7. Reports.

    (a) Final report. -- The division shall provide a final report to the court, the defendant, and the prosecuting attorney on a participant's progress in the drug offender treatment program.

    (b) Evaluation and report to Legislature. -- The division shall monitor and evaluate the drug offender treatment program to ensure that the programmatic objectives are met. Beginning in 2014, the division shall submit, before February 1 of each year, to the Governor, the Speaker of the House of Delegates, the President of the Senate and, upon request, to any individual member of the Legislature a report of its evaluation and on its activities during the previous year. The report shall include:

    (1) The number of offenders evaluated for the drug offender treatment program;

    (2) The number of offenders sentenced to the drug offender treatment program;

    (3) The number of offenders sentenced to a state correctional facility who may have been eligible for the drug offender treatment program;

    (4) The number of offenders successfully completing the drug offender treatment program;

    (5) The six-month, one-year, three-year and five-year recidivism rates for offenders who have completed the drug offender treatment program and for a comparison group of offenders who were not placed in the drug offender treatment program; and

    (6) Any changes the division believes will make the drug offender treatment program more effective.

§62-16-8. Revocation of intermediate punishment.

    (a) Generally. -- The court may at any time terminate a sentence of intermediate punishment.

    (b) The court shall revoke a sentence of intermediate punishment if after a hearing it determines that the participant was expelled from or failed to complete the program.

    © Proceedings upon revocation. -- Upon revocation of a intermediate punishment sentence, the sentencing alternatives available to the court shall be the same as the alternatives available at the time of initial sentencing.

§62-16-9. Construction of article.

    Notwithstanding any other provision of law to the contrary, this article may not be construed to:

    (1) Confer any legal right upon any individual, including an individual participating in the drug offender treatment program, to:

    (A) Participate in a drug offender treatment program;

    (B) Continue participation in a drug offender treatment program;

    © Modify the contents of the drug offender treatment program; or

    (D) File any cause of action in any court challenging the division’s determination that a participant is to be suspended or expelled from or that a participant has successfully completed or failed to successfully complete treatment to be provided during any portion of a drug offender treatment program; or

    (2) Enlarge or limit the right of a participant to appeal the participant's sentence.




    NOTE: The purpose of this bill is to enact the Public Safety and Offender Accountability Act. The bill requires completion of a Corrections Impact Statement to determine the fiscal impact for any bill that proposes to increase, decrease or otherwise impact incarceration. The bill establishes baselines for performance and comparisons to national averages to measure and document possible cost savings from the Public Safety and Offender Accountability Act. The bill reinvestment and distribution of savings. The bill identifies the primary objective for both the Division of Corrections and sentencing policy as maintaining public safety, holding offenders accountable and maintaining the lowest possible recidivism rate. The bill requires the Division of Corrections administer validated risk and needs assessments for inmates eligible for parole. The bill creates of an intensive secured substance abuse recovery program. The bill requires evidence-based practice to be used in treatment and intervention programs. The bill requiring the Division of Corrections to make an annual report to Governor and Legislature. The bill provides additional good time credit for successful completion of education or treatment programs. The bill provides additional good time credit for exceptionally meritorious service. The bill requires the Regional Jail and Correctional Facility Authority to make an annual report to the Governor and Legislature. The bill requires the Supreme Court of Appeals to make an annual report to Governor and Legislature. The bill amends the Uniform Controlled Substances Act. The bill requires the Supreme Court of Appeals to develop an online system that provides courts, attorneys, probation and parole officers, and victims with information about sentencing. The bill distinguishes between serious drug trafficking by maintaining severe penalties for serious drug traffickers. The bill establishes a proportionate scale of penalties and reduces sentence for small quantities of certain controlled substances for a first offense. The bill permits deferred prosecution or a presumptive probation sentence for first and second time possession offenders. The bill requires a law-enforcement officer to issue a citation instead of making an arrest for many misdemeanor offenses with certain exceptions, such as when the offender poses a risk of danger to himself or others. The bill prohibits bail amounts for misdemeanors to exceed the fines and fees of the offenses charged. The bill requires courts and corrections authorities incorporate risk and needs assessment information into the decision-making process. The bill requires state expenditures on supervision and intervention programs for pretrial defendants, inmates and those on parole and probation to be spent on programs that are evidence-based. The bill requires offenders to be supervised using practices proven to reduce or otherwise maintain low recidivism rates. The bill requires parole board to hear cases at least sixty days prior to the offender’s parole eligibility date allows parole. The bill requires the use of administrative caseloads for low-risk offenders. The bill authorizes compliance credits for parolees and early termination for probationers who successfully comply with supervision conditions. The bill requires six months of supervision for offenders who would otherwise be discharged without supervision at the end of their sentences. The bill authorizes the Division of Corrections to allow offenders to complete required programming in the community and be monitored. The bill increases accountability for probation and parole violations by authorizing imposition of administrative, graduated sanctions for parole and probation violators. The bill creates two pilot projects that require frequent drug testing with immediate sanctions for positive drug tests or other violations and referral to treatment if necessary. The bill creates an intermediate punishment program that provides substance abuse treatment for offenders sentenced to a state correctional facility.



    §4-1-24, §15-9-6, §15-9-7, §25-1-23, §25-1-24, §25-1-25, §31-20-33, §51-1-22, §51-1-23 and §51-1-24, §60A-1-102, §60A-4-414, §60A-4-415, §62-11C-3a, §62-12-1a, §62-12-5a, §62-12-29, §62-12-30, §62-12-31, §62-12-32, §62-12-33, §62-12-34, §62-12-35, §62-12-36, §62-12-37, §62-12-38, §62-12-39, §62-12-40, §62-12-41, §62-13-1, §62-16-1, §62-16-2, §62-16-3, §62-16-4, §62-16-5, §62-16-6, §62-16-7, §62-16-8 and §62-16-9 are new; therefore, it has been completely underscored.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.



    This bill was recommended for introduction and passage during the Regular Session of the Legislature by the Joint Committee on the Judiciary.

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