Senate Bill No. 100

(By Senators Lucht, Yoder, Brackenrich, Holliday,

Manchin and Felton))

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[Introduced February 22, 1993; referred to the Committee
on the Judiciary.]

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A BILL to amend and reenact section one-a, article eleven-a, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections four, five, six, seven, nine, ten and eleven, article eleven-b of said chapter; and to further amend said article by adding thereto two new sections, designated sections seven-a and twelve, all relating to allowing magistrates to use alternative sentences for convicted offenders; authorizing magistrates to sentence certain offenders to home detention; requirements for home detention; specifying circumstances in which offenders may not be sentenced to home detention; home detention fees; appointment and authority of home detention supervisors; procedures for revocation of home detention; penalties when home detention revoked; information to be provided to certain law-enforcement agencies regarding offenders
sentenced to home detention; and vesting circuit judges with the authority of the board of probation and parole in certain circumstances.
 Be it enacted by the Legislature of West Virginia:
That section one-a, article eleven-a, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections four, five, six, seven, nine, ten and eleven, article eleven-b of said chapter be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections seven-a and twelve, all to read as follows:
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.

§62-11A-1a. Other sentencing alternatives.

(a) Any person who has been convicted in a circuit court of record or in a magistrate court under any criminal provision of this code of a misdemeanor or felony, which may be punishable by confinement in the county jail, may, in the discretion of the sentencing judge or magistrate, as an alternative to the sentence imposed by statute for such crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be required to spend weekends or other days normally off from work, in jail;
(2) The work program under which sentenced persons would be required to spend the first two or more days of their sentence in jail and then, in the discretion of the judge, would be assignedto a county agency to perform labor within the jail, or in and upon the buildings, grounds, institutions, bridges, roads, including orphaned roads used by the general public, and public works within the county. Eight hours of such labor shall be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(3) The community service program under which persons sentenced would spend no time in jail but would be sentenced to a number of hours or days of community service work with tax supported agencies. Eight hours of service work shall be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes.
(b) In no event may the duration of the alternate sentence exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for which a mandatory period of confinement is imposed by statute;
(2) The person sentenced is not a habitual criminal within the meaning of sections eighteen and nineteen, article eleven, chapter sixty-one of this code;
(3) That adequate facilities for the administration andsupervision of alternative sentencing programs are available through the court's probation officers or the county sheriff or, in the case of magistrates, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(4) That an alternative sentence under provisions of this article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the provisions of this article shall remain under the administrative custody and supervision of the court's probation officers or the county sheriff. Persons sentenced by a magistrate shall remain under the administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may be required to pay the costs of their confinement, including meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section remain under the jurisdiction of the court. The court may withdraw any alternative sentence at any time by order entered with or without notice and require that the remainder of the sentence be served in the county jail: Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the supervision of the sheriff, his deputies, a jailer or a guard, shall require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.
ARTICLE 11B. HOME DETENTION ACT.

§62-11B-4. Home detention; period of home detention; applicability.

(a) As a condition of probation or as an alternative sentence to another form of incarceration, a circuit court may order an offender confined to the offender's home for a period of home detention. As an alternative sentence to incarceration in jail, a magistrate may order an adult offender confined to the offender's home for a period of home detention.
(b) The period of home detention may be continuous or intermittent, as the circuit court orders, or continuous if ordered by a magistrate. However, the aggregate time actually spent in home detention may not exceed the term of imprisonment or incarceration prescribed by this code for the offense committed by the offender.
(c) A grant of home detention under this article constitutes a waiver of any entitlement to deduction from a sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code and it constitutes a waiver of any eligibility for parole under section thirteen, article twelve, chapter sixty-two of this code for any time in which home detention is in effect.
§62-11B-5. Requirements for order for home detention.

An order for home detention of an offender under section four of this article shall include, but not be limited to, the following:
(1) A requirement that the offender be confined to the offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health treatment, counseling or other treatment programs approved for the offender by the circuit court or magistrate;
(D) Attending an educational institution or a program approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a place of worship;
(F) Participating in a community work release or community service program approved for the offender by the circuit court; or
(G) Engaging in other activities specifically approved for the offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be imposed if the circuit court or magistrate subsequently finds the offender to have violated the terms and conditions in the order of home detention.
(3) A requirement that the offender abide by a schedule, prepared by the probation officer or supervisor, specifically setting forth the times when the offender may be absent from the offender's home and the locations the offender is allowed to beduring the scheduled absences.
(4) A requirement that the offender is not to commit another crime during the period of home detention ordered by the circuit court or magistrate.
(5) A requirement that the offender obtain approval from the probation officer or supervisor before the offender changes residence or the schedule described in subdivision (3) of this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the magistrate, a monitoring device in the offender's home, or on the offender's person, or both; and
(C) Electric service in the offender's home if use of a monitoring device is ordered by the circuit court or magistrate.
(7) A requirement that the offender pay a home detention fee set by the circuit court or magistrate. If a magistrate orders home detention for an offender, the magistrate shall follow a fee schedule established by the supervising circuit judge in setting the home detention fee.
(8) A requirement that the offender abide by other conditions of probation set by the circuit court.
§62-11B-6. Circumstances under which home detention may not be ordered.

(a) A circuit court or magistrate may not order home detention for an offender unless the offender agrees to abide byall of the requirements set forth in the court's order issued under this article.
(b) A circuit court or magistrate may not order home detention for an offender who is being held under a detainer, warrant or process issued by a court of another jurisdiction.
(c) A magistrate may not order home detention for an offender convicted of any offense that carries a mandatory prison or jail sentence.
(d) A magistrate may not order home detention for an offender without electronic monitoring and only if the county of the offender's home has an established program of electronic monitoring that is equipped, operated and staffed by the county supervisor for the purpose of supervising participants in a home detention program.
(e) A magistrate may not order home detention for an offender convicted of a violent offense, including, but not limited to, any offense involving domestic violence.
§62-11B-7. Home detention fees; special fund.

All home detention fees ordered by the circuit court shall be deposited with the circuit clerk who shall deposit the fees into the county sheriff's special adult or juvenile probation services fund, which fund is hereby mandated. All home detention fees ordered by a magistrate shall be deposited with the magistrate court clerk who shall deposit the fees into the county sheriff's special adult or juvenile probation services fund. The county commission shall appropriate money from the fund toadminister a home detention program, including the purchase of monitoring devices and other supervision expenses, and may as necessary supplement the fund with additional appropriations.
§62-11B-7a. Employment by county commission of home detention supervisors; authority of supervisors.

The county commission may employ one or more persons with the approval of the circuit court and who shall come under and be subject to the supervision of said court as a home detention supervisor to supervise offenders ordered to undergo home detention and to administer the county's home detention program. Any person so employed shall have authority, equivalent to that granted to a probation officer pursuant to section ten, article twelve of this chapter, to arrest a home detention participant when reasonable cause exists to believe that such participant has violated the conditions of his or her home detention. Unless otherwise specified, the use of the term "supervisor" in this article shall refer to a home detention supervisor.
§62-11B-9. Violation of order of home confinement; procedures; penalties.

(a) If at any time during the period of home detention there shall be reasonable cause to believe that a participant in a home detention program has violated the terms and conditions of the circuit court's home confinement order, he or she shall be subject to the procedures and penalties set forth in section ten, article twelve of this chapter.
(b) If at any time during the period of home detention thereshall be reasonable cause to believe that a participant sentenced to home detention by the circuit court has violated the terms and conditions of the court's order of home detention and said participant's participation was imposed as an alternative sentence to another form of incarceration, said participant shall be subject to the same procedures involving revocation as would a probationer charged with a violation of the order of home detention. Any participant under an order of home detention shall be subject to the same penalty or penalties, upon the circuit court's finding of a violation of the order of home detention, as he or she could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home confinement.
(c) If at any time during the period of home detention there shall be reasonable cause to believe that a participant sentenced to home detention by a magistrate has violated the terms and conditions of the magistrate's order of home detention as an alternative sentence to incarceration in jail, the supervisor may arrest the participant with or without an order or warrant. The magistrate who placed the participant on home detention, or any other magistrate within the county of the offender's home shall then conduct a prompt and summary hearing on whether the participant's home detention should be revoked. If it appears to the satisfaction of the magistrate that any condition of home detention has been violated, the magistrate may revoke the homedetention and impose sentence, and order that sentence be executed. Any participant under an order of home detention shall be subject to the same penalty or penalties, upon the magistrate's finding of a violation of the order of home detention, as the participant could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home confinement.
§62-11B-10. Information to be provided law-enforcement agencies.

A probation department and supervisors charged by a circuit court or a magistrate with supervision of offenders ordered to undergo home detention shall provide all law-enforcement agencies having jurisdiction in the place where the probation department or the office of the supervisor is located with a list of offenders under home detention supervised by the probation department or supervisor. The list must include the following information about each offender:
(1) The offender's name, any known aliases, and the location of the offender's home detention;
(2) The crime for which the offender was convicted;
(3) The date the offender's home detention expires; and
(4) The name, address and telephone number of the offender's supervising probation officer or supervisor, as the case may be, for home detention.
§62-11B-11. Provisions of article not exclusive; discretion of the circuit court.

The provisions of this article are not to be considered exclusive nor do they supersede existing statutes relating to the detention of adult or juvenile offenders. The provisions of this article may be applied at the discretion of the trial circuit court as an alternate means of detention.
§62-11B-12. Supervision of home detention by circuit court.

Notwithstanding any provision of this code to the contrary, in any case where a person has been ordered to home detention where that person is not in the custody or control of the division of corrections, the circuit judge shall have the authority of the board of probation and parole regarding the release, early release, or release on parole of the person.



NOTE: The purpose of this bill is to allow magistrates to sentence people convicted of misdemeanor offenses to home confinement or other supervised alternatives to jail.

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

§§62-11b-7a and 12 are new; therefore, strike-throughs and underscoring have been omitted.