Senate Bill No. 235

(By Senators Sprouse, Dugan, Buckalew, Deem, McKenzie and Kimble)

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[Introduced January 28, 1998; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section one, article one-c, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section six, article eleven-b of said chapter, all relating to confinement of persons accused or convicted of an offense punishable by life imprisonment; and prohibiting bail and home incarceration in certain circumstances.

Be it enacted by the Legislature of West Virginia:
That section one, article one-c, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section six, article eleven-b of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1C. BAIL.
§62-1C-1. Right to bail; exceptions; review.

(a) A person arrested for an offense not punishable by life imprisonment shall be admitted to bail by the court or magistrate. A person arrested for an offense punishable by life imprisonment may in the discretion of the court that will have jurisdiction to try the offense, not be admitted to bail.
(b) Bail may be allowed pending appeal from a conviction, except that bail shall may not be granted:
(1) Where the offense is punishable by life imprisonment; or
(2) Where the court has determined from the evidence at the trial or upon a plea of guilty or nolo contendere that the offense was committed or attempted to be committed with the use, presentment or brandishing of a firearm or other deadly weapon, or by the use of violence to a person. Provided, That (c) The denial of bail under one of these exceptions subdivision (2), subsection (b) of this section may be reviewed by summary petition to the supreme court of appeals or any justice thereof, and the petition for bail may be granted where there is a likelihood that the defendant will prevail upon the appeal. The court or judge allowing bail pending appeal may at any time revoke the order admitting the defendant to bail.
(c) (d) The amount of bail or the discretionary denial of bail at any stage of the proceedings may be reviewed by summary petition first to the lower appellate court, if any, and thereafter by summary petition to the supreme court of appeals or any judge thereof.
ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-6. Circumstances under which home incarceration may not be ordered.

(a) A circuit court or magistrate may not order home incarceration for an offender unless the offender agrees to abide by all of the requirements set forth in the court's order issued under this article.
(b) A circuit court or magistrate may not order home incarceration for an offender who is being held under a detainer, warrant or process issued by a court of another jurisdiction.
(c) A magistrate may order home incarceration for an offender only with 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 or sheriff for the purpose of supervising participants in a home incarceration program: Provided, That electronic monitoring may is not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.
(d) A magistrate may not order home incarceration for an offender convicted of a crime of violence against the person.
(e) Home incarceration shall is not be available as a sentence if the language of a criminal statute expressly prohibits its application.
(f) A circuit court or magistrate may not order, or permit, home incarceration of a person charged with, or of an offender convicted of, an offense punishable by life imprisonment .
NOTE: The purpose of this bill is to prohibit bail and home confinement for persons accused of or convicted of a capital offense.

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