H. B. 2706
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 9, 1999; referred to the
Committee on the Judiciary then Finance.]
A BILL to repeal article three, chapter twenty-eight of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; to amend and reenact sections one, two, four, five,
six, seven and eight, article one of said chapter; and to
further amend said article by adding thereto five new
sections, designated sections one-a, three, nine, ten and
eleven, all relating to the industrial home for youth, the
division of juvenile services, and the commitment of
juvenile delinquents; repealing the article relating to the
industrial home for youth; providing that the division of
juvenile services be charged with the care, training and
reformation of juvenile delinquents; providing for the
office of juvenile detention to assume responsibility for
operation and maintenance of centers for the
predispositional detention of juveniles; specifying duties for the office of juvenile corrections, the division of
juvenile services and the office of alternative services;
setting forth definitions; specifying when any circuit court
of this state may commit juveniles to the custody of the
division of juvenile services; providing the director of the
division of juvenile services the authority to transfer
certain juveniles; providing for transportation of certain
juveniles; providing for legislative rules; mandating the
director of the division of juvenile services to propose
certain legislative rules and specifying what the rules
shall address; providing that the director of the division
of juvenile services may discharge or parole any juvenile
committed to a juvenile facility; providing when the
director of the division of juvenile services may return any
juvenile in a juvenile facility to circuit court for
commitment in an adult facility after that juvenile attains
the age of eighteen years; classification and appropriate
placement of juveniles; specifying offenses relating to
juvenile facilities; specifying penalties; setting forth
arrest authority of juvenile correctional officers; setting
forth priority of hiring with regard to juvenile detention
and corrections facilities; and providing for medical care
of those juveniles committed to the care or custody of the
division of juvenile services.
Be it enacted by the Legislature of West Virginia:
That article three, chapter twenty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; that sections one, two, four, five, six, seven and
eight, article one of said chapter be amended and reenacted; and
that said article be further amended by adding thereto five new
sections, designated sections one-a, three, nine, ten and eleven,
all to read as follows:
CHAPTER 28. STATE CORRECTIONAL AND PENAL INSTITUTIONS.
ARTICLE 1. COMMITMENT OF JUVENILE DELINQUENTS.
§28-1-1. Care of juvenile delinquents.
(a) The state commissioner of corrections division of
juvenile services within the department of military affairs and
public safety shall be charged with the care, training and
reformation of male youths of the state juvenile delinquents
committed to his the custody of the division. The division of
juvenile services shall consist of three subdivisions, the office
of juvenile detention, the office of juvenile corrections, and
the office of alternative services. Education of the male youths
all juveniles committed to the custody of the division is subject
to the provisions of section thirteen-f, article two, chapter
eighteen of this code. All state facilities and institutions for
such purpose shall be managed and controlled by the division of
juvenile services. as prescribed in article one, chapter twenty-five of this code
(b) The office of juvenile detention shall assume
responsibility for the operation and maintenance of centers for
the predispositional detention of juveniles, including juveniles
who have been transferred to adult criminal jurisdiction pursuant
to section ten, article five, chapter forty-nine of this code,
and juveniles who are awaiting transfer to a juvenile corrections
facility.
(c) The office of juvenile corrections shall assume
responsibility for the operation and maintenance of juvenile
corrections facilities.
(d) The office of alternative services shall assume
responsibility for the provision of services to all juvenile
delinquents who are committed to the custody of the division, but
who are not placed in a secure facility.
(e) The division of juvenile services shall:
(1) Provide for the safe and efficient care, custody,
control, education and reformation of all juveniles placed in the
custody of the division, as more particularly set forth in this
chapter and in chapter forty-nine of this code;
(2) Plan for, develop, obtain all available funding for,
expand, operate and maintain all state facilities for the
housing, detention, commitment or care of juvenile delinquents;
(3) Develop and provide education, training and certification programs for juvenile correction officers, facility
staff and all division personnel who come in contact with
juveniles; and
(4) Develop a plan for regional detention programs and
facilities consistent with Legislative recommendations, federal
and state guidelines, needs assessments and other factors as
determined by the director.
§28-1-1a. Definitions.
For purposes of this chapter:
(a) "Director" means the director of the division of
juvenile services within the department of military affairs and
public safety, or his or her designee.
(b) "Department" means the department of military affairs
and public safety as established by section two, article one,
chapter five-f of this code.
(c) "Division" means the division of juvenile services
within the department of military affairs and public safety as
created pursuant to the provisions of article five-e, chapter
forty-nine of this code.
(d) "Juvenile" or "child" means any person under eighteen
years of age.
(e) "Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime
under state law or a municipal ordinance if committed by an adult.
(f) "Juvenile facility" means any secure, staff-secure or
nonsecure, public or private institution, center, home, halfway
house or other such residence for the treatment, instruction, and
rehabilitation of juveniles.
(g) "Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision.
(h) "Referee" means a juvenile referee appointed pursuant to
section one, article five-a, chapter forty-nine of this code,
except that in any county which does not have a juvenile referee
the judge or judges of the circuit court may designate one or
more magistrates of the county to perform the functions and
duties which may be performed by a referee.
(i) "Restrictiveness classification" means the
classification given to a juvenile by the division of juvenile
services and the division multidisciplinary team.
(j) "Secure facility" means any public or private
residential facility, which includes construction fixtures
designed to physically restrict the movements and activities of
juveniles or other individuals held in lawful custody in such facility.
(k) "Security level" means the classification level of a
juvenile detention or correction facility as determined by the
director and based upon the need for security, detention,
restraint or supervision of the juveniles placed in the facility.
(l) "Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the
movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents.
(m) "Status offender" means a juvenile who has been
adjudicated as one:
(1) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety or welfare of the juvenile or any other
person;
(2) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good
cause;
(3) Who is habitually absent from school without good cause;
or
(4) Who violates any West Virginia municipal, county or
state law regarding use of alcoholic beverages by minors.
(n) "Superintendent" means the superintendent of any
juvenile facility, center, home, halfway house or other
institution to which a juvenile is committed by the division of
juvenile services or a circuit court of any county in this state,
including state-run facilities and private nonprofit residential
facilities.
(o) "Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to
such order, and who received, before the issuance of such order,
the full due process rights guaranteed to such juvenile by the
constitutions of the United states and the state of West
Virginia.
§28-1-2. Commitment; age limits; physical, educational and
psychological examinations; admission; transfer and
placement.
(a) Any male youth between the ages of ten and eighteen
years may be committed to the custody of the commissioner of
corrections by a circuit court of this state in the manner
prescribed in article five, chapter forty-nine of this code; and
further, any male youth who has been adjudged delinquent pursuant
to subdivision one, section four, article one, chapter forty-nine
of this code, who, as a result thereof, was placed on probation and has been found, in a proceeding pursuant to the procedural
requirements of article five, chapter forty-nine of this code, to
have violated a term of probation, prior to the attainment of his
twentieth birthday, which constitutes a criminal offense, may be
committed to the custody of the commissioner of corrections as a
youthful offender.
(a) Any circuit court of this state may commit to the
custody of the division of juvenile services:
(1) A juvenile who has been alleged to be or adjudged a
juvenile delinquent pursuant to the provisions of article five,
chapter forty-nine of this code;
(2) A juvenile delinquent who has been found, in a
proceeding pursuant to the procedural requirements of article
five, chapter forty-nine of this code, to have violated a term of
probation prior to the attainment of his or her twenty-first
birthday.
(b) Following disposition and prior to transfer to the
custody of the division, each juvenile shall be allowed to visit
with his or her relatives, without being committed to a juvenile
facility for a period of not less than one hour.
(b) (c) Every youth juvenile committed hereunder shall,
following the dispositional proceeding, be transferred to the
place or places designated by the commissioner of corrections
director for complete physical, educational and psychological examinations, including all appropriate tests, to be completed as
soon as possible, the completion of the physical examinations to
be within twenty days. The examining physician shall furnish to
the division a written report of these examinations on forms to
be furnished to the physician by the division. The cost of the
examinations required herein shall be borne by the division.
(d) Such youth Juveniles committed to the custody of the
division shall be housed in a manner so as to prevent the spread
of infectious disease. Following disposition and prior to
transfer to the custody of the commissioner of corrections, each
youth shall be allowed to visit with his relatives, without being
committed to jail for a period of not less than one hour. The
cost of the examinations herein shall be borne by the committing
county. The youth shall be provided all treatment and
rehabilitation indicated by such examinations.
(e) In lieu of the physical examinations and tests provided
for herein, the court may, in the absence of objection, pursuant
to the provisions of section four, article five, chapter
forty-nine of this code, have the county health officer or other
local health care facility perform physical and mental
examinations and tests, so long as such examinations and tests
are performed prior to the dispositional proceeding and the
reports thereof are delivered to the division. Except as
otherwise provided by law, no child juvenile shall be committed to a jail juvenile facility following a dispositional proceeding
solely to await a physical, educational or mental examination or
the results thereof.
(c) (f) All such examinations shall be private. No youth
juvenile who is mentally ill or significantly mentally retarded
shall be committed to, or retained by, the commissioner of
corrections division, but shall be returned to the committing
court for further disposition. No youth juvenile who has a
serious infectious disease shall be retained in the custody of
the commissioner of corrections division, but shall be
transferred to an appropriate treatment facility. Detailed
medical records shall be kept of every youth juvenile committed
to the custody of the division.
(d) (g) The results of any such physical, educational and
psychological examinations, together with a copy of the petition,
the adjudicatory order and the dispositional order shall
accompany every youth juvenile committed to the commissioner of
corrections division, without which such youth juvenile shall not
be accepted. The commissioner director, or his a designated
representative thereof, shall review the records of each youth
juvenile committed to assure that no youth juvenile is illegally
detained in an inappropriate facility or custodial situation.
(e) (h) The commissioner of corrections director of juvenile
services shall have the authority, without further court order, to transfer and place such youth juveniles committed to the
custody of the division in any of the facilities, centers, or
homes, residences or halfway programs which shall be established
and in less restrictive settings, whether under his the
jurisdiction of the division or private nonprofit residential
facilities, as he the director may deem appropriate to promote
the rehabilitation of such youth the juvenile. To the extent
possible, no youth under the age of fifteen shall be in regular
contact with youths between the ages of sixteen and eighteen.
The director of the division of juvenile services shall have
authority to transfer any juvenile from the division's facilities
who is discovered to be pregnant, who has a serious infectious
disease, who is blind or deaf, or who otherwise presents medical
needs that the director, in his or her discretion, determines can
not be adequately met at the division's facility.
§28-1-3. Classification of juveniles and facilities; placement
of juveniles in appropriate facilities.
(a) The director of the division of juvenile services shall,
by rule, develop a restrictiveness classification system for
juveniles accused as being or adjudged as juvenile delinquents in
order to determine the security level most appropriate for the
juvenile, which such classification shall consider the age of the
juvenile, the nature of the offense or offenses charged, the
history of the juvenile, the risks to the juvenile and to the public safety, the availability of resources, the need for
supervision, security or restraints, and other factors.
(b) The director of the division of juvenile services shall,
by rule, develop security level classifications for all juvenile
facilities based upon the type of facility, the security of the
facility, restraints, services offered, supervision and other
such factors.
(c) Whenever a juvenile is alleged to be a juvenile
delinquent, the division, along with the division
multidisciplinary team, shall classify the juvenile according to
the restrictiveness categories provided by the director and make
recommendations to the circuit court, referee or magistrate as to
the security level of the facility to which the juvenile should
be committed. The order of commitment shall state the level of
the facility to which the juvenile shall be committed without
specifying any particular facility.
(d) Upon receipt of the commitment order, the director of
the division of juvenile services shall determine which juvenile
facility at the level designated by the court or referee is
available and forthwith transport the juvenile to such facility
for detention or commitment.
§28-1-4. Conveyance and transportation of juveniles; expenses.
(a) As soon as practicable after a youth juvenile, on any
account, is detained by or committed to the custody of the state commissioner of public institutions division of juvenile
services, the papers in the case shall be mailed to the director
of the division, who shall forward the order of commitment to the
superintendent of the facility selected by the director.
superintendent of the receiving youth facility, and such youth
(b) Any juvenile detained by the division of juvenile
services shall remain in the custody of the court pronouncing
such commitment until he be delivered to an officer a
representative of the division, who shall transport the juvenile
to the receiving youth juvenile facility designated by the
division, who shall be sent without delay and duly authorized by
the superintendent to conduct such youth by the most direct and
convenient route to said facility. but no youth committed to any
facility shall be lodged in any jail or lockup, if he be under
the age of sixteen years The superintendent of a facility
division shall, insofar as is consistent with the safe conveyance
of youths juveniles to the facility, cause as many youths
juveniles as may be committed from the same or several counties
to be conducted to the facility at the same time.
(c) The expense incurred in conducting a youth to a youth
facility, including transportation and other necessary traveling
expenses of the youth and of his conductor, shall be paid by the
county court out of the treasury of the county from which the
youth was committed to the facility, and a written statement of such necessary expenditures, fully itemized and sworn to by the
officer making such expenditures, and attested by the
superintendent of the facility, when presented to any county
court shall be a bill against such court, to be paid to the
receiving facility and credited to that fund of the facility from
which the original expenditure was made; but when two or more
youths shall be so conducted from more than one county, the
necessary expenditure on the personal account of the conductor
shall be apportioned among the counties concerned in due
proportion to the mileage traveled by the youths from their
respective counties Any juvenile detained by the division of
juvenile services shall be transported by the division to and
from the designated juvenile facility, court appearances,
physician visits or other locations as designated by the
director.
§28-1-5. Rules.
The state commissioner of corrections shall have authority
to make such rules and regulations for the management and
government of the facilities for youthful offenders under his
control, and the instruction, discipline, training, employment
and disposition of the boys and their transportation to and from
the various facilities, subject to section thirteen-f, article
two, chapter eighteen of this code, as the commissioner may deem
proper.
The director of the division of juvenile services shall
propose legislative rules for promulgation pursuant to the
provisions of chapter twenty-nine-a of this code for:
(1) The development, management, operation, financing,
staffing and maintenance of all facilities for alleged or
adjudged juvenile delinquents detained by the division;
(2) The classification of juveniles into restrictiveness
categories for purposes of determining the level of placement;
(3) The security level classification of juveniles
facilities into categories reflecting measures of security,
restraints, detention, risks and other factors as determined by
the director;
(4) Coordination of recommendations by the division and the
division multidisciplinary team to the circuit courts, juvenile
referees or magistrates regarding the restrictiveness categories
of juveniles and the classification of juvenile facilities;
(5) The care, instruction, education, discipline, training,
employment and disposition of all juveniles committed to the
care and custody of the division;
(6) The transportation of juveniles in the division's
custody to and from juvenile facilities;
(7) The parole, reclassification or transfer of juveniles by
the director;
(8) The education, training and certification of juvenile correction and detention officers, state facility staff and
division personnel;
(9) The development of a plan for regional detention
programs and facilities that is consistent with legislative
recommendations, federal and state guidelines, needs assessments
of juvenile detention services, and other factors as determined
by the director; and
(10) Other matters necessary to fulfill the duties and
obligations imposed upon the division by the provisions of this
chapter or chapter forty-nine of this code.
§28-1-6. Discharge or parole; arrest and return of paroled
juveniles.
(a) The state commissioner of public institutions director
of the division of juvenile services shall have authority may,
under such rules and regulations as the commissioner director may
prescribe, to grant, on the recommendation of the superintendant,
a discharge or parole to any inmate of any of the various
facilities, but juvenile committed to a juvenile facility:
Provided, That while such inmate juvenile is on parole, and until
he or she is discharged according to law, he such juvenile shall
remain in the legal custody of the commissioner of public
institutions division and remain subject at any time to be
returned to physical custody, if in the judgment of the
commissioner director the interests of such paroled inmate juvenile will best be served thereby.
(b) The written order of said commissioner the director,
countersigned by the superintendent, shall be sufficient warrant
for any officer or person named therein to arrest and return to
the facility the youth any juvenile so paroled pursuant to the
provisions of this section; and it shall be the duty of any such
officer or person to arrest and return such youth juvenile to the
facility. All actual expenses incurred in returning such youth
juvenile to the facility shall be paid out of the funds
appropriated for the maintenance of the facility by the division.
§28-1-7. Transfer of juveniles to penitentiary.
In any case where a youth a juvenile is committed to any
youth juvenile facility beyond his or her eighteenth birthday for
an offense punishable by confinement in the penitentiary, and it
is found by the state commissioner of public institutions
director of the division of juvenile services that the youth
juvenile facility is unable to benefit such youth individual, and
that his the presence of the individual is a detriment or menace
to other youths juveniles in the institution facility, or to the
general good of the facility, he the individual, after his or her
eighteenth birthday, may be returned to the committing court by
which he was committed to the facility, and such court shall
thereupon pass such sentence upon him the individual as to
confinement in the penitentiary as may be proper in the premises, or as it might have passed had it not committed him as a youthful
offender juvenile. The governor shall have power, when, in the
judgment of the warden of the penitentiary and of the
superintendent of the facility, it is advisable, to remit the
penalty of any offender under the age of eighteen years confined
in the penitentiary to a commitment to a youth facility.
§28-1-8. Offenses relating to juvenile facilities; penalties;
escape; arrest and return.
If any person shall entice or attempt to entice away from
any youth juvenile facility any youth juvenile legally committed
to the same state, or shall aid or abet any youth juvenile to
escape therefrom, or shall harbor, conceal or aid or abet in
harboring or concealing, any youth juvenile who shall have
escaped therefrom, or shall, without the permission of the
superintendent, give or sell, or aid or abet any other person to
give or sell, to any youth juvenile in the youth juvenile
facility, whether on the premises of such institution or
otherwise, any money, firearms, intoxicating drinks, tobacco,
cigarettes, or other articles whatsoever, or shall in any way
cause or influence, or attempt to cause or influence or aid or
abet therein, any youth juvenile in the youth facility to violate
any rule of the institution or to rebel against the government of
said facility in any particular, or shall receive by the hands of
any such youth juvenile anything of value, whether belonging to the state or otherwise, such person shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than ten, nor more than one hundred dollars, or be confined
not more than twelve months in the county jail, or, in the
discretion of the court, both fined and imprisoned. The
superintendent, or any of his assistants, or any one authorized
in writing by him, or any sheriff, constable, policeman or other
peace officer, shall have power, and it is hereby made his duty,
to arrest any youth juvenile, when in his or her power to do so,
who shall have escaped from said facility, and return him such
juvenile thereto.
§28-1-9. Arrest authority of correctional and detention
officers.
(a) Persons employed by the division of juvenile services as
correctional officers or detention officers are hereby authorized
and empowered to arrest persons already in the custody of the
division of juvenile services for violations of law that occur in
the officer's presence, including escape.
(b) Nothing in this section shall be construed as to make a
correctional or detention officer employed by the division of
juvenile services a law-enforcement officer as defined in section
one, article twenty-nine, chapter thirty of this code.
§28-1-10. Juvenile detention and corrections facilities;
employees; priority of hiring.
(a) Notwithstanding any provision of this code to the
contrary, the division, when employing any persons to complete
the approved staffing plan of a juvenile detention or corrections
facility completed or opened after the effective date of this
section, shall employ any qualified person applying for a
position at the juvenile detention or corrections facility who
was employed in good standing at a county or local jail facility,
at the time of its closing, that was closed due to the completion
of a regional jail.
(b) All persons employed at a juvenile detention or
corrections facility completed or opened after the effective date
of this section shall be employed at a salary and with benefits
consistent with the approved plan of compensation of the division
of personnel, created under section five, article six, chapter
twenty-nine of this code; all such employees shall also be
covered by the policies and procedures of the education and state
employees grievance board, created under section five, article
six-a, chapter twenty-nine of this code and the classified-exempt
service protection policies of the division of personnel.
§28-1-11. Medical care for juveniles.
Unless provided otherwise, when any juvenile committed to
the care or custody of the division of juvenile services requires
medical or surgical care or treatment, the division may provide
the same or arrange for the furnishing thereof by other public or private agencies, and may give consent to the medical or surgical
treatment.
NOTE: The purpose of this bill is to transfer the care and
custody of juvenile offenders from the Commissioner of
Corrections to the Director of the Division of Juvenile Services.
The bill also transfers the responsibility for the operation and
maintenance of juvenile facilities.
The bill establishes criteria for the classification and
appropriate placement of juveniles. The bill mandates the
Director of the Division of Juvenile Services to propose certain
legislative rules and sets forth the hiring priority for juvenile
and corrections facilities. The bill also provides for medical
care for certain juveniles.
Strike-throughs indicate language that would be stricken
from the code, and underscoring indicates new language that would
be added.
§§28-1-1a, 3, 9, 10 and 11 are new; therefore
Strike-throughs and underscoring have been omitted.