Senate Bill No. 454
(By Senator Foster)
[Introduced January 30, 2012; referred to the Committee on the Judiciary.]
A BILL to amend and reenact §61-11A-2 and §61-11A-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact §62-12-23 of said code, all relating to adding persons who resided with crime victims to those who are provided notice of matters in the prosecutorial process and the right to be heard at sentencing and parole proceedings.
Be it enacted by the Legislature of West Virginia:
That §61-11A-2 and §61-11A-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §62-12-23 of said code be amended and reenacted, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Testimony of crime victim at sentencing hearing.
(a) For the purposes of this section, "victim" means a person who is a victim of a felony, or, where a death occurs during the commission of a felony or a misdemeanor, the fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family, if known to the prosecutor, or a nonrelated person who resided with the victim at the time of the crime for at least twelve months preceding the crime.
(b) Prior to the imposition of sentence upon any a defendant who has been found guilty of a felony, or of a misdemeanor if death occurs during the commission of a crime, or has pleaded guilty or nolo contendere to any a felony, or to a misdemeanor if death occurs during the commission of a crime, the court shall permit the victim of the crime to appear before the court to make for the purpose of making an oral statement for the record if the victim notifies the court of his or her desire to make such a statement after receiving notification provided in subsection (c) of this section. If the victim fails to notify the court, the such failure is constitutes a waiver of the right to make an oral statement. In lieu of the appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. The probation officer shall forthwith file the statement delivered to his or her office with the sentencing court and the statement must shall be made a part of the record at the sentencing hearing. The Any such statement, whether oral or written, must shall relate solely to the facts of the case and the extent of any injuries, financial losses and loss of earnings directly resulting from the crime for which the defendant is being sentenced.
(c) Within a reasonable time prior to the imposition of sentence upon the defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall make reasonable efforts, in writing, to advise the person who was the victim of the such crime, the parent or guardian of a minor who was the victim of a crime, the fiduciary of the victim’s estate if the victim is deceased and the immediate family members of the victim if the victim is deceased and if their whereabouts are known to the prosecutor or assistant prosecutor. The writing will provide the date, time and place of the original sentencing hearing and of the victim’s right to submit a written or oral statement to the sentencing court.
(d) The oral or written statement given or submitted by a victim in accordance with the provisions of this section is in addition to and not in lieu of the victim impact statement required by the provisions of section three of this article.
§61-11A-6. State guidelines for fair treatment of crime victims and witnesses in the criminal justice system.
(a) No later than July 1, 1984, the Attorney General shall promulgate rules and regulations in accordance with the provisions of chapter twenty-nine-a of this code, establishing guidelines for law-enforcement agencies and prosecuting attorneys' offices consistent with the purposes of this article. The Attorney General shall seek the advice of the department of public safety and department of human services West Virginia State Police and Department of Health and Human Resources in preparing such rules and regulations. In preparing such rules and regulations, the following objectives shall be considered:
(1) The arresting law-enforcement agency should ensure that victims routinely receive emergency social and medical services as soon as possible and are given information on the following:
(A) Availability of crime victim compensation, where applicable;
(B) Community-based victim treatment programs;
(C) The role of the victim in the criminal justice process, including what they can expect from the system as well as what the system expects from them; and
(D) Stages in the criminal justice process of significance to a crime victim, and the manner in which information about such stages can be obtained.
(2) The prosecuting attorney or his or her assistant should ensure that victims and witnesses receive information on steps that law-enforcement officers and prosecuting attorneys can take to protect victims and witnesses from intimidation.
(3) All victims and witnesses who have been scheduled to attend criminal justice proceedings should be notified by the prosecuting attorneys' offices as soon as possible of any scheduling changes which will affect their appearances.
(4) Victims, witnesses, and one member of the immediate family of those victims and witnesses and any nonrelated person who resided with the victim for at least twelve months preceding the crime should, if such persons provide the appropriate official with a current address and telephone number, receive prompt advance notification, if possible, of judicial proceedings relating to their case, from the prosecuting attorney's office, including:
(A) The arrest of an accused;
(B) The initial appearance of an accused before a judicial officer;
(C) The release of the accused pending judicial proceedings; and
(D) Proceedings in the prosecution of the accused including, but not limited to, the entry of a plea of guilty, trial, sentencing, and, where a term of imprisonment is imposed, the release of the accused from such imprisonment.
(5) The victim of a serious crime, or in the case of a minor child or a homicide, the family of the victim, shall be consulted by the prosecuting attorney in order to obtain the views of the victim or family about the disposition of any criminal case brought as a result of such crime, including the views of the victim or family about:
(B) Release of the accused pending judicial proceedings;
(C) Plea negotiations; and
(D) Pretrial diversion program.
(6) Victims and other prosecution witnesses should if practical, be provided prior to court appearance, be provided a waiting area that is separate from all other witnesses prior to court appearances, if feasible.
(7) Law-enforcement agencies should promptly return victim's victims’ property held for evidentiary purposes unless there is a compelling law-enforcement reason for retaining it.
(8) A victim or witness who so requests should be assisted by law-enforcement agencies and prosecuting attorneys in informing employers that the need for victim and witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work. A victim or witness who, as a direct result of a crime or of cooperation with law-enforcement agencies or attorneys for the government, is subjected to serious financial strain, should be assisted by the appropriate state agencies in dealing with creditors.
(b) Nothing in this section shall be construed as creating a cause of action against the State of West Virginia or any of its political subdivisions.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-23. Notification of parole hearing; victim's right to be heard; notification of release on parole.
(a) Following the sentencing of a person who has been convicted of murder, aggravated robbery, sexual assault in the first or second degree, kidnapping, child abuse resulting in injury, child neglect resulting in injury, arson or a sexual offense against a minor, the prosecuting attorney who prosecuted the offender shall prepare a "Parole Hearing Notification Form". This form shall contain the following information:
(1) The name of the county in which the offender was prosecuted and sentenced;
(2) The name of the court in which the offender was prosecuted and sentenced;
(3) The name of the prosecuting attorney or assistant prosecuting attorney who prosecuted the offender;
(4) The name of the judge who presided over the criminal case and who sentenced the offender;
(5) The names of the law-enforcement agencies and officers who were primarily involved with the investigation of the crime for which the offender was sentenced; and
(6) The names, addresses and telephone numbers of the victims of the crime for which the offender was sentenced or the names, addresses and telephone numbers of the immediate family members of each victim of the crime, including, but not limited to, each victim's spouse, father, mother, brothers, and sisters and any nonrelated person who resided with an adult victim at the time of the crime and for at least twelve months preceding the crime.
(b) The prosecuting attorney shall retain the original of the Parole Hearing Notification Form and shall provide copies of it to the circuit court which sentenced the offender, the Parole Board, the Commissioner of Corrections and to all persons whose names and addresses are listed on the "Parole Hearing Notification Form" form.
(c) At least forty-five days prior to the date of a parole hearing, the Parole Board shall notify all persons who are listed on the Parole Hearing Notification Form of the date, time and place at which a parole hearing will be held of the hearing. Such notice shall be sent by certified mail, return receipt requested. The notice shall state that the victims of the crime have the right to submit a written statement to the Parole Board and to attend the parole hearing to be heard regarding the propriety of granting parole to the prisoner. The notice shall also state that only the victims may submit written statements and speak at the parole hearing unless a victim is deceased, is a minor or is otherwise incapacitated.
(d) The panel considering the parole shall inquire during the parole hearing as to whether the victims of the crime or their representatives, as provided in this section, are present. If so, the panel shall permit those persons to speak at the hearing regarding the propriety of granting parole for the prisoner.
(e) If the panel grants parole, it shall immediately set a date on which the prisoner will be released. Such date shall be no earlier than thirty days after the date on which parole is granted. On the date on which parole is granted, the Parole Board shall notify all persons listed on the Parole Hearing Notification Form that parole has been granted and that the prisoner will be released on a particular date the date of release. A written statement of reasons for releasing the prisoner, prepared pursuant to subdivision (4), subsection (b), section thirteen of this article, shall be provided upon request to all persons listed on the Parole Hearing Notification Form.
NOTE: The purpose of this bill is to provide notice and the ability to be heard during certain criminal and parole hearings to persons who have resided with a victim for at least one year prior to the crime.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.