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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
House Bill 5415
By Delegates Ridenour, Steele, Martin, Foster, Kirby, Hillenbrand, Ward, Kimble, Phillips, Mallow, and Marple
[Introduced February 01, 2024; Referred to the Committee on Veterans' Affairs and Homeland Security then the Judiciary]
A BILL to amend and reenact §15-2-24 of the Code of West Virginia, as amended, to amend said code by adding thereto four new sections, designated §29-12A-19, §29-12A-20, §29-12A-21, and §29-12A-22; to amend said code by adding thereto a new article, designated §61-17-1, §61-17-2, §61-17-3, and §61-17-4; to amend and reenact §62-11C-11 of said code; to amend and reenact §62-12-2 and §62-12-13 of said code; and to amend said code by adding thereto a new article, designated §62-17-1, §62-17-2, and §62-17-3, all relating to procedures regarding illegal entry into the state; requiring the Criminal Identification Bureau maintain certain records regarding illegal entry into state; providing immunity to local and state officials for actions taken to enforce law regarding illegal entry into state; establishing findings and definitions regarding illegal entry into state; creating the offense of illegal entry into state; creating the offense of illegal reentry into state; creating the offense of refusal to comply with an order; prohibiting community supervision for person convicted of certain offenses; prohibiting parole for persons convicted of illegal entry or reentry; prohibiting enforcement of crimes of illegal entry or reentry in certain locations; establishing procedures for court to order deportation of certain individuals; and providing no abatement of prosecution for defendants whose status is not determined by federal government.
Be it enacted by the Legislature of West Virginia:
(a) The superintendent of the department shall establish, equip and maintain at the departmental headquarters a Criminal Identification Bureau, for the purpose of receiving and filing fingerprints, photographs, records and other information pertaining to the investigation of crime and the apprehension of criminals, as hereinafter provided. The superintendent shall appoint or designate a supervisor to be in charge of the Criminal Identification Bureau and such supervisor shall be responsible to the superintendent for the affairs of the bureau. Members of the department assigned to the Criminal Identification Bureau shall carry out their duties and assignments in accordance with internal management rules and regulations pertaining thereto promulgated by the superintendent.
(b) The Criminal Identification Bureau shall cooperate with identification bureaus of other states and of the United States to develop and carry on a complete interstate, national and international system of criminal identification.
(c) The Criminal Identification Bureau may furnish fingerprints, photographs, records or other information to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the fingerprints, photographs, records or other information requested are necessary in the interest of and will be used solely in the administration of official duties and the criminal laws.
(d) The Criminal Identification Bureau may furnish, with the approval of the superintendent, fingerprints, photographs, records or other information to any private or public agency, person, firm, association, corporation or other organization, other than a law-enforcement or governmental agency as to which the provisions of subsection (c) of this section shall govern and control, but all requests under the provisions of this subsection for such fingerprints, photographs, records or other information must be accompanied by a written authorization signed and acknowledged by the person whose fingerprints, photographs, records or other information is to be released.
(e) The Criminal Identification Bureau may furnish fingerprints, photographs, records and other information of persons arrested or sought to be arrested in this state to the identification bureau of the United States government and to other states for the purpose of aiding law-enforcement.
(f) Persons in charge of any penal or correctional institution, including any city or county jail in this state, shall take, or cause to be taken, the fingerprints and description of all persons lawfully committed thereto or confined therein and furnish the same in duplicate to the Criminal Identification Bureau, Department of Public Safety. Such fingerprints shall be taken on forms approved by the superintendent of the Department of Public Safety. All such officials as herein named may, when possible to do so, furnish photographs to the Criminal Identification Bureau of such persons so fingerprinted.
(g) Members of the Department of Public Safety, and all other state law-enforcement officials, sheriffs, deputy sheriffs and each and every peace officer in this state, shall take or cause to be taken the fingerprints and description of all persons arrested or detained by them, charged with any crime or offense in this state, in which the penalty provided therefor is confinement in any penal or correctional institution, or of any person who they have reason to believe is a fugitive from justice or a habitual criminal, and furnish the same in duplicate to the Criminal Identification Bureau of the Department of Public Safety on forms approved by the superintendent of said department. All such officials as herein named may, when possible to do so, furnish to the Criminal Identification Bureau photographs of such persons so fingerprinted. For the purpose of obtaining data for the preparation and submission to the Governor and the Legislature by the Department of Public Safety of an annual statistical report on crime conditions in the state, the clerk of any court of record, the magistrate of any magistrate court and the mayor or clerk of any municipal court before which a person appears on any criminal charge shall report to the Criminal Identification Bureau the sentence of the court or other disposition of the charge and the prosecuting attorney of every county shall report to the Criminal Identification Bureau such additional information as the bureau may require for such purpose, and all such reports shall be on forms prepared and distributed by the Department of Public Safety, shall be submitted monthly and shall cover the period of the preceding month.
(h) All persons arrested or detained pursuant to the requirements of this article shall give fingerprints and information required by subsections (f) and (g) of this section. Any person who has been fingerprinted or photographed in accordance with the provisions of this section who is acquitted of the charges upon which he or she was arrested and who has no previous criminal record may, upon the presentation of satisfactory proof to the department, have such fingerprints or photographs, or both, returned to them.
(i) All state, county and municipal law-enforcement agencies shall submit to the bureau uniform crime reports setting forth their activities in connection with law-enforcement. It shall be the duty of the bureau to adopt and promulgate rules and regulations prescribing the form, general content, time and manner of submission of such uniform crime reports. Willful or repeated failure by any state, county or municipal law-enforcement official to submit the uniform crime reports required by this article shall constitute neglect of duty in public office. The bureau shall correlate the reports submitted to it and shall compile and submit to the Governor and the Legislature semiannual reports based on such reports. A copy of such reports shall be furnished to all prosecuting attorneys and law-enforcement agencies.
(j) Neglect or refusal of any person mentioned in this section to make the report required herein, or to do or perform any act on his or her part to be done or performed in connection with the operation of this section, shall constitute a misdemeanor and such person shall, upon conviction thereof, be punished by a fine of not less than $25 nor more than $200, or by imprisonment in the county jail for a period of not more than sixty days, or both. Such neglect shall constitute misfeasance in office and subject such persons to removal from office. Any person who willfully removes, destroys or mutilates any of the fingerprints, photographs, records or other information of the Department of Public Safety shall be guilty of a misdemeanor and such person shall, upon conviction thereof, be punished by a fine of not more than $100, or by imprisonment in the county jail for a period of not more than six months, or both.
(k) The Criminal Identification Bureau (CIB) and the Federal Bureau of Investigation (FBI) shall retain applicant fingerprints for the purpose of participating in the Rap Back Program to determine suitability or fitness for a permit, license or employment. Agencies participating in the program shall notify applicants and employees subject to a criminal history check that their fingerprint shall be retained by the CIB and the FBI. Notification shall also be given to the applicant and employee subject to the Rap Back Program.
(l) The State Police may assess a fee to applicants, covered providers or covered contractors for conducting the criminal background check and for collecting and retaining fingerprints for Rap Back as authorized under article forty-nine, chapter sixteen of this code. The assessment shall be deposited into a nonappropriated special revenue account within the State Treasurer's office to be known as the WVSP Criminal History Account. Expenditures from this account shall be made by the superintendent for purposes set forth in this article and are authorized from collections. The account shall be administered by the superintendent and may not be deemed a part of the general revenue of the state.
(m) Information maintained by the Criminal Identification Bureau must include any order issued under §62-17-1 et seq. of this code.
(a) Except as provided by subsection (d) of this section, a local government official, employee, or contractor is immune from liability for damages arising from a cause of action under state law resulting from an action taken by the official, employee, or contractor to enforce §61-17-1 et seq. of this code, or an order issued under §62-17-1 et seq. of this code, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the local government.
(b) Subject to subsection (c) of this section and except as provided by subsection (d) of this section, a local government shall indemnify an official, employee, or contractor of the local government for damages arising from a cause of action under federal law resulting from an action taken by the official, employee, or contractor to enforce §61-17-1 et seq. of this code, or an order issued under §62-17-1 et seq. of this code, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the local government.
(c) Indemnification payments made under subsection (b) of this section by a local government may not exceed:
(1) $100,000 to any one person or $300,000 for any single occurrence in the case of personal injury or death; or
(2) $10,000 for a single occurrence of property damage.
(d) Subsections (a) and (b) of this section do not apply if the court or jury determines that the local government official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness.
(e) A local government shall indemnify an official, employee, or contractor of the local government for reasonable attorney's fees incurred in defense of a criminal prosecution against the official, employee, or contractor for an action taken by the official, employee, or contractor to enforce §61-17-1 et seq. of this code, or an order issued under §62-17-1 et seq. of this code, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the local government.
(f) This section may not be construed to waive any statutory limits on damages under state law.
(a) Except as provided by subsection (d) of this section, an elected or appointed state official or a state employee or contractor is immune from liability for damages arising from a cause of action under state law resulting from an action taken by the official, employee, or contractor to enforce §61-17-1 et seq. of this code, or an order issued under §62-17-1 et seq. of this code, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the state.
(b) Except as provided by subsection (d) of this section, the state shall indemnify an elected or appointed state official or a state employee or contractor for damages arising from a cause of action under federal law resulting from an action taken by the official, employee, or contractor to enforce §61-17-1 et seq. of this code, or an order issued under §62-17-1 et seq. of this code, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the state.
(c) Notwithstanding any other provision of this code to the contrary, an indemnification payment made under subsection (b) of this section is not subject to an indemnification limit under the laws of this state.
(d) Subsections (a) and (b) of this section do not apply if the court or jury determines that the state official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness.
(e) The state shall indemnify a state official, employee, or contractor for reasonable attorney's fees incurred in defense of a criminal prosecution against the official, employee, or contractor for an action taken by the official, employee, or contractor to enforce §61-17-1 et seq. of this code, or an order issued under §62-17-1 et seq. of this code, during the course and scope of the official's, employee's, or contractor's office, employment, or contractual performance for or service on behalf of the state.
(f) A state official, employee, or contractor who may be entitled to indemnification under subsection (b) of this section is entitled to representation by the attorney general in an action in connection with which the official, employee, or contractor may be entitled to that indemnification.
(g) This section may not be construed to waive any statutory limits on damages under state law.
For a civil action brought against a person who may be entitled to immunity or indemnification under §29-12A-19 or §29-12A-20 of this code, an appeal must be taken directly to the Supreme Court of Appeals.
(a) The provisions of §29-12A-19 and §29-12A-20 of this code do not affect a defense, immunity, or jurisdictional bar available to the state or a local government or an official, employee, or contractor of the state or a local government.
(b) For purposes of §29-12A-19 and §29-12A-20 of this code, “damages” includes any and all damages, fines, fees, penalties, court costs, attorney’s fees, or other assessments.
(a) The Legislature of the State of West Virginia finds:
(1) That illegal immigration of aliens into the United States and West Virginia is a threat to public safety;
(2) That illegal immigration is being used by criminals, including criminal enterprises and gangs, to facilitate criminal activities, particularly human smuggling and trafficking in illegal drugs, including fentanyl and other lethal drugs;
(3) That illegal immigration undermines the rule of law;
(4) That illegal immigration is being exacerbated by aberrant federal government immigration policies, and that the costs of this illegal and illicit immigration policy are being borne by the States, which are being bankrupted by federal government spending and inaction;
(5) That illegal immigration causes economic harm to the People and State of West Virginia; and
(6) That the States must take action to counteract illegal immigration and reverse the damage the federal government is imposing on the States.
(b) As used in this article:
(1) "Alien" has the meaning assigned by 8 U.S.C. Section 1101, as that provision existed on January 1, 2023;
(2) "Port of entry" means a port of entry in the United States as designated by 19 C.F.R. Part 101.
(a) A person who is an alien commits an offense if the person enters or attempts to enter this state from a foreign nation after unlawfully entering the United States in violation of federal law.
(b) An offense under this section is a misdemeanor punishable by up to one year in a regional jail, except that the offense is a felony punishable by not less than one nor more than three years in a state correctional facility if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this section.
(c) It is an affirmative defense to prosecution under this section that:
(1) The federal government has granted the defendant:
(A) Lawful presence in the United States; or
(B) Asylum under 8 U.S.C. Section 1158;
(2) The defendant's conduct does not constitute a violation of 8 U.S.C. Section 1325(a); or
(3) The defendant was approved for benefits under the federal deferred action for childhood arrivals program between June 15, 2012, and July 16, 2021.
(d) The following federal programs do not provide an affirmative defense for purposes of subsection (c)(1) of this section:
(1) The Deferred Action for Parents of Americans and lawful permanent residents program; and
(2) Any program not enacted by the United States congress that is a successor to or materially similar to the program described by subsection (c)(3) or (d)(1) of this section.
(a) A person who is an alien commits an offense if the person enters, attempts to enter, or is at any time found in this state after the person:
(1) Has been denied admission to or excluded, deported, or removed from the United States; or
(2) Has departed from the United States while an order of exclusion, deportation, or removal is outstanding.
(b) An offense under this section is a misdemeanor punishable by up to one year in a regional jail, except that the offense is:
(1) A felony punishable by not less than one nor more than three years in a state correctional facility if:
(A) The defendant's removal was subsequent to a conviction for commission of two or more misdemeanors involving drugs, crimes against a person, or both;
(B) The defendant was excluded pursuant to 8 U.S.C. Section 1225(c) because the defendant was excludable under 8 U.S.C. Section 1182(a)(3)(b);
(C) The defendant was removed pursuant to the provisions of 8 U.S.C. Chapter 12, Subchapter V; or
(D) The defendant was removed pursuant to 8 U.S.C. Section 1231(a)(4)(b); or
(2) A felony punishable by not less than one nor more than three years in a state correctional facility if the defendant was removed subsequent to a conviction for the commission of a felony.
(c) For purposes of this section, "removal" includes an order issued under §62-17-1 et seq. of this code, or any other agreement in which an alien stipulates to removal pursuant to a criminal proceeding under either federal or state law.
(a) A person who is an alien commits an offense if:
(1) The person has been charged with or convicted of an offense under this chapter;
(2) A magistrate or judge, as applicable, has issued an order under §62-17-1 et seq. of this code, for the person to return to their nation of origin, or the foreign nation from which the person entered or attempted to enter; and
(3) The person refuses to comply with the order.
(b) An offense under this section is a felony punishable by not less than one nor more than three years in a state correctional facility.
Notwithstanding any provision of this code to the contrary, a defendant is not eligible for community supervision, including, but not limited to deferred adjudication, if this defendant is charged with or convicted of an offense under §61-17-1 et seq. of this code.
(a) All persons who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, and all persons who are found guilty of or plead guilty to any misdemeanor are eligible for probation, notwithstanding the provisions of §61-11-18 and §61-11-19 of this code.
(b) The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment, or brandishing of a firearm is not eligible for probation. Nothing in this section may apply to an accessory before the fact or a principal in the second degree who has been convicted as if he or she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented, or brandished a firearm.
(c)(1) The existence of any fact which would make any person ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with the use, presentment, or brandishing of a firearm may not be applicable unless the fact is clearly stated and included in the indictment or presentment by which that person is charged and is either:
(A) Found by the court upon a plea of guilty or nolo contendere;
(B) Found by the jury, if the matter is tried before a jury, upon submitting to the jury a special interrogatory for that purpose; or
(C) Found by the court, if the matter is tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year 1981:
(A) Apply to all applicable offenses occurring on or after August 1 of that year;
(B) 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;
(C) 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 shall give notice in writing of its intent to seek that finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which the finding is 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
(D) May not apply with respect to cases not affected by the amendment and in those cases the prior provisions of this section shall apply and be construed without reference to the amendment.
Insofar as the amendments relate to mandatory sentences without probation, all matters requiring that sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(d) 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.
(e) Any person who has been found guilty of, or pleaded guilty to, a violation of §61-3C-14b, §61-8-12, §61-8A-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., or §61-8D-5 of this code may only be eligible for probation after undergoing a physical, mental, and psychiatric or psychological study and diagnosis which shall include an ongoing treatment plan requiring active participation in sexual abuse counseling at a mental health facility or through some other approved program: Provided, That nothing disclosed by the person during that 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 probationer to do harm to any person, animal, institution, or property, in which case the information may be released only to those persons necessary for protection of the person, animal, institution, or property.
Within 90 days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with §29A-3-1 et seq. of this code, establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.
(f) Any person who has been convicted of a violation of §61-8B-1 et seq,. §61-8C-1 et seq., §61-8D-5, §61-8D-6, §61-2-14, §61-8-12, and §61-8-13 of this code, or of a felony violation involving a minor of §61-8-6 or §61-8-7 of this code, or of a similar provision in another jurisdiction, shall register upon release on probation. Any person who has been convicted of an attempt to commit any of the offenses set forth in this subsection shall also be registered upon release on probation.
(g) The probation officer shall within three days of release of the offender send written notice to the State Police of the release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's Social Security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent predator as defined in §15-12-2a of this code, the notice shall also include:
(i) Identifying factors, including physical characteristics;
(ii) A history of the offense; and
(iii) Documentation of any treatment received for the mental abnormality or personality disorder.
(h) An inmate serving a sentence for an offense under §61-17-1 et seq. of this code may not be released on probation.
(a) The Parole Board, 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 provided in this section, shall release any inmate on parole for terms and upon conditions provided by this article.
(b) Any inmate of a state correctional institution 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 has applied for and been accepted by the Commissioner of Corrections and Rehabilitation into an accelerated parole program. To be eligible to participate in an accelerated parole program, the commissioner must determine that the inmate:
(i) 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;
(ii) 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 offense where the victim was a minor child; and
(iii) Has successfully completed a rehabilitation treatment program created with the assistance of a standardized risk and needs assessment.
(C) Notwithstanding any provision of this code to the contrary, any inmate 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 inmate who committed, or attempted to commit, any violation of §61-2-12 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. An inmate 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 guilty by the court at the time of trial upon a plea of guilty or nolo contendere; (ii) found guilty 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 guilty by the court if the matter was tried by the court without a jury.
(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. The notice shall state with particularity the grounds upon which the finding will be sought as fully as the grounds are otherwise required to be stated in an indictment, unless the grounds upon which the finding will be sought are alleged in the indictment or presentment upon which the matter is being tried;
(iv) Does not apply with respect to cases not affected by the amendments and in those cases the prior provisions of this section apply and are construed without reference to the amendments; and
(v) 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.
(E) As used in this section, “felony crime of violence against the person” means felony offenses set forth in §61-2-1 et seq., §61-3E-1 et seq., §61-8B-1 et seq., or §61-8D-1 et seq. of this code.
(F) 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 §61-8-1 et seq., §61-8A-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq. of this code.
(G) 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;
(2) Is not in punitive segregation or administrative segregation as a result of disciplinary action;
(3) Has prepared and submitted to the Parole 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 which has been approved by the Division of Corrections and Rehabilitation: Provided, That an inmate’s application for parole may be considered by the board without the prior submission of a home plan, but the inmate shall have a home plan approved by the division prior to his or her release on parole. The Commissioner of the Division of Corrections and Rehabilitation, or his or her designee, shall review and investigate the plan and provide findings to the board as to the suitability of the plan: Provided, however, That in cases in which there is a mandatory 30-day notification period required prior to the release of the inmate, pursuant to §62-12-23 of this code, the board may conduct an initial interview and deny parole without requiring the development of a plan. In the event the board believes parole should be granted, it may defer a final decision pending completion of an investigation and receipt of the commissioner’s findings. Upon receipt of the plan, together with the investigation and findings, the board, through a panel, shall make a final decision regarding the granting or denial of parole;
(4) Has satisfied the board that if released on parole he or she will not constitute a danger to the community; and
(5) Has successfully completed any individually required rehabilitative and educational programs, as determined by the division, while incarcerated: Provided, That, effective September 1, 2021, any inmate who satisfies all other parole eligibility requirements but is unable, through no fault of the inmate, to complete his or her required rehabilitative and educational programs while incarcerated, which are eligible to be taken while on parole, may be granted parole with the completion of such specified programs outside of the correctional institutions being a special condition of that person’s parole term: Provided, however, That the Parole Board may consider whether completion of the inmate’s outstanding amount of such programming would interfere with his or her successful reintegration into society.
(c) Except in the case of an inmate serving a life sentence, a person who has been previously twice convicted of a felony may not 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. An inmate sentenced for life may not be paroled until he or she has served 10 years, and an inmate sentenced for life who has been previously twice convicted of a felony may not be paroled until he or she has served 15 years: Provided, That an inmate 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 15 years.
(d) In the case of an inmate sentenced to a state correctional facility regardless of the inmate’s place of detention or incarceration, the Parole Board, as soon as that inmate becomes eligible, shall consider the advisability of his or her release on 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 who is still eligible: Provided, That the board may reconsider and review parole eligibility any time within three years following the denial of parole of an inmate serving a life sentence with the possibility of parole.
(f) Any inmate in the custody of the commissioner for service of a sentence who reaches parole eligibility is entitled to a timely parole hearing without regard to the location in which he or she is housed.
(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 under this article 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) (1) The Division of Corrections and Rehabilitation 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 provide for, at a minimum, screening and selecting inmates for rehabilitation treatment and development, using standardized risk and needs assessment and substance abuse assessment tools, and prioritizing the use of residential substance abuse treatment resources based on the results of the standardized risk and needs assessment and a substance abuse assessment. The results of all standardized risk and needs assessments and substance abuse assessments are confidential.
(2) An inmate shall not be paroled under paragraph (B), subdivision (1), subsection (b) of this section solely due to having successfully completed a rehabilitation treatment plan, but completion of all the requirements of a rehabilitation treatment plan along with compliance with the requirements of subsection (b) of this section creates a rebuttable presumption that parole is appropriate. The presumption created by this subdivision may be rebutted by a Parole Board finding that, according to the standardized risk and needs assessment, 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 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 precludes consideration for parole for a period of one year or until the provisions of subsection (b) of this section are applicable.
(j) If an inmate is otherwise eligible for parole pursuant to subsection (b) of this section, and has completed the rehabilitation treatment program required under subdivision (1), subsection (h) of this section, the Parole Board may not require the inmate to participate in an additional program, but may determine that the inmate must complete an assigned task or tasks prior to actual release on parole. The board may grant parole contingently, effective upon successful completion of the assigned task or tasks, without the need for a further hearing.
(k) (1) The Division of Corrections and Rehabilitation shall supervise 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.
(2) The Division of Corrections and Rehabilitation shall provide supervision, treatment/recovery, and support services for all persons released to mandatory supervision under §15A-4-17 of this code.
(l) (1) When considering an inmate of a state correctional facility for release on parole, the Parole Board panel considering the parole shall have before it an authentic copy of, or report on, the inmate's current criminal record as provided through the West Virginia State Police, the United States Department of Justice, or any other reliable criminal information sources and written reports of the superintendent of the state correctional institution 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 for the infractions;
(B) 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 the state correctional institution; and
(C) On any physical, mental, psychological, or psychiatric examinations of the inmate.
(2) The Parole 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 case, shall enter in its record 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 §61-8-12 of this code or under the provisions of §61-8B-1 et seq. or §61-8C-1 et seq. of this code, the Parole Board panel may not waive the report required by this subsection. The report shall include a study and diagnosis of the inmate, 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 inmate during the study or diagnosis may be made available to any law-enforcement agency, or other party without that inmate’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 parolee. 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 Parole Board 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 Parole Board made pursuant to the provisions of this section: Provided, That an inmate may appear by video teleconference if the members of the Parole Board 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: Provided, however, That the requirement that an inmate personally appear may be waived where a physician authorized to do so by the Commissioner of the Division of Corrections and Rehabilitation certifies that the inmate, due to a medical condition or disease, is too debilitated, either physically or cognitively, to appear. 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 must concur in the decision. The superintendent shall furnish all necessary assistance and cooperate to the fullest extent with the Parole Board. All information, records, and reports received by the Parole Board shall be kept on permanent file.
(n) The Parole Board and its designated agents are at all times to have access to inmates imprisoned in any state 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 of the state.
(o) The Parole Board shall, if requested by the Governor, investigate and consider all applications for pardon, reprieve, or commutation and shall make recommendation on the applications to the Governor.
(p) Prior to making a recommendation for pardon, reprieve or commutation, the board shall notify the sentencing judge and prosecuting attorney at least 10 days before the recommendation.
(q) A parolee shall participate as a condition of parole in the litter control program of the county to which he or she is released to the extent directed by the Parole Board, unless the board specifically finds that this alternative service would be inappropriate.
(s) An inmate serving a sentence for an offense under §61-17-1 et seq. of this code may not be released on parole.
(a) Notwithstanding any other provision of this code to the contrary, a law-enforcement officer may not arrest or detain a person for purposes of enforcing a provision of §61-17-1 et seq. of this code, if the person is on the premises or grounds of:
(1) A public or private primary or secondary school for educational purposes;
(2) A church, synagogue, or other established place of religious worship;
(3) A health care facility, as defined by §16-39-3 of this code, including a facility a state agency maintains or operates to provide health care, or the office of a health care worker, as defined by §16-39-3 of this code, provided that the person is on the premises or grounds of the facility or office for the purpose of receiving medical treatment; or
(4) A facility that provides forensic medical examinations to sexual assault survivors in accordance with §15-9B-1 et seq. of this code, provided that the person is on the premises or grounds of the facility for purposes of obtaining a forensic medical examination and treatment.
(a) A magistrate during a person's appearance under article §62-1-1 et seq. of this code may, after making a determination that probable cause exists for arrest for an offense under §61-17-2 or §61-17-3 of this code order the person released from custody and issue a written order in accordance with subsection (c) of this section.
(b) The judge in a person's case at any time after the person's appearance before a magistrate under §62-1-1 et seq. of this code may, in lieu of continuing the prosecution of or entering an adjudication regarding an offense under §61-17-2 or §61-17-3 of this code, dismiss the charge pending against the person and issue a written order in accordance with subsection (c) of this section.
(c) A written order authorized by subsection (a) or (b) of this section must discharge the person and require the person to return to the foreign nation from which the person entered or attempted to enter, and may be issued only if:
(1) The person agrees to the order;
(2) The person has not previously been convicted of an offense under §61-17-1 et seq. of this code, or previously obtained a discharge under an order described by subsection (a) or (b) of this section;
(3) The person is not charged with another offense that is punishable as a misdemeanor punishable by up to a year in a regional jail or any higher category of offense; and
(4) Before the issuance of the order, the arresting law-enforcement agency:
(A) Collects all available identifying information of the person, which must include taking fingerprints from the person and using other applicable photographic and biometric measures to identify the person; and
(B) Cross-references the collected information with:
(i) All relevant local, state, and federal criminal databases; and
(ii) Federal lists or classifications used to identify a person as a threat or potential threat to national security.
(d) On a person's conviction of an offense under §61-17-1 et seq. of this code, the judge shall enter in the judgment in the case an order requiring the person to return to the foreign nation from which the person entered or attempted to enter an order issued under this subsection takes effect on completion of the term of confinement or imprisonment imposed by the judgment.
(e) An order issued under this article must include:
(1) The manner of transportation of the person to a port of entry, as defined by §61-17-1 of this code; and
(2) The law-enforcement officer or state agency responsible for monitoring compliance with the order.
(f) An order issued under this article must be filed:
(1) With the circuit clerk of the county in which the person was arrested, for an order described by subsection (a) of this section; or
(2) With the clerk of the court exercising jurisdiction in the case, for an order described by subsection (b) or (d) of this section.
(g) Not later than the seventh day after the date an order is issued under this article, the law-enforcement officer or state agency required to monitor compliance with the order shall report the issuance of the order to the West Virginia State Police for inclusion in the computerized criminal history system under §15-2-24 of this code.
A court may not abate the prosecution of an offense under §61-17-1 et seq. of this code, on the basis that a federal determination regarding the immigration status of the defendant is pending or will be initiated.
NOTE: The purpose of this bill is to establish certain crimes, processes, and procedures regarding individuals who have illegally entered or reentered the state in violation of state and federal laws.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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