Senate Bill No. 142
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced January 14, 1999; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections twelve and thirteen, article
twelve, chapter sixty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to parole; authorizing the parole board chairperson to
appoint hearing examiners authorized to conduct and record
final parole revocation hearings; and authorizing the video
conferencing of parole hearings before a majority of the
board or videotaping of a hearing before a single board
member for subsequent review by two other board members.
Be it enacted by the Legislature of West Virginia:
That sections twelve and thirteen, article twelve, chapter
sixty-two of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-12. Parole board generally.
(a) There shall be a state board of parole, known as the
"West Virginia parole board." The board shall consist of five
members, each of whom shall have been a resident of this state
for at least five consecutive years prior to his or her
appointment. No more than three of the board members may at any
one time belong to the same political party. The board members
shall be appointed by the governor, by and with the advice and
consent of the Senate. Appointments following the effective date
of this section shall be made in such a manner that each
congressional district is represented and so that no more than
two members of the board reside in any one congressional
district. Each member of the board shall have a degree in
criminal justice or like experience and academic training and
shall be otherwise competent to perform the duties of his or her
office. The members shall be appointed for overlapping terms of
six years. Any member qualified under this section is eligible
for reappointment.
(b) The members of the board shall devote their full time
and attention to their board duties.
(c) Any single member of the board is empowered to hold any
hearing provided for in this article, where a transcript of the
hearing, including exhibits and documentary evidence, and the
recommendation of the member holding the hearing is submitted to
the board for decision.
(d) The parole board chairperson may appoint hearing
examiners who are hereby authorized to conduct and record final
parole revocation hearings for the subsequent review,
consideration and action by the members of the board.
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.
(a) The board of parole, whenever it is of the opinion that
the best interests of the state and of the inmate will be
subserved thereby, and subject to the limitations hereinafter
provided, shall release any such inmate on parole for such terms
and upon such conditions as are provided by this article. Any
inmate of a state correctional center, to be eligible for parole:
(1) (A) Shall have served the minimum term of his or her
indeterminate sentence, or shall have served one fourth of his or her definite term sentence, as the case may be, except that in no
case shall any person who committed, or attempted to commit a
felony with the use, presentment or brandishing of a firearm, be
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 person who committed, or
attempted to commit, any violation of section twelve, article
two, chapter sixty-one of this code, with the use, presentment or
brandishing of a firearm, shall not be 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 shall be
the greater. Nothing in this section shall 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. No person is ineligible for parole under
the provisions of this subdivision because of the commission or
attempted commission of a felony with the use, presentment or
brandishing of a firearm unless such fact is clearly stated and
included in the indictment or presentment by which such the person was charged and was either: (i) Found by the court at the
time of trial upon a plea of guilty or nolo contendere; or (ii)
found by the jury, upon submitting to such the jury a special
interrogatory for such purpose if the matter was tried before a
jury; or (iii) found by the court, if the matter was tried by the
court without a jury.
For the purpose of this section, the term "firearm" shall
mean 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.
(B) The amendments to this subsection adopted in the year
one thousand nine hundred eighty-one:
(i) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(ii) Shall apply with respect to the contents of any
indictment or presentment returned on or after the first day of
August of that year irrespective of when the offense occurred;
(iii) Shall 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 such the jury on or after the
first day of August 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 such finding by the jury or court, as the case
may be, which notice shall state with particularity the grounds
upon which such finding shall be 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
(iv) Shall not apply with respect to cases not affected by
such amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
amendment.
Insofar as such amendments relate to mandatory sentences
restricting the eligibility for parole, all such matters
requiring such sentence shall be proved beyond a reasonable doubt
in all cases tried by the jury or the court.
(2) Shall not be in punitive segregation or administrative
segregation as a result of disciplinary action;
(3) Shall have maintained a record of good conduct in prison
for a period of at least three months immediately preceding the
date of his or her release on parole;
(4) Shall have submitted to the 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 postrelease counseling and treatment,
said the parole release plan having been approved by the
commissioner of corrections or his or her authorized
representative; and
(5) Shall have satisfied the board that if released on
parole he or she will not constitute a danger to the community.
Except in the case of one serving a life sentence, no person
who has been previously twice convicted of a felony may 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.
No person sentenced for life may be paroled until he or she has
served ten years, and no person sentenced for life who has been
previously twice convicted of a felony may be paroled until he or
she has served fifteen years: Provided, That no person convicted
of first degree murder for an offense committed on or after the
tenth day of June, one thousand nine hundred ninety-four, shall
be eligible for parole until he or she has served fifteen years.
In the case of a person sentenced to any state correctional center, it shall be the duty of the board, as soon as such person
becomes eligible, to consider the advisability of his or her
release on parole. If, upon such consideration, parole be
denied, the board shall at least once a year reconsider and
review the case of every inmate so eligible, which
reconsideration and review shall be by at least three members of
the board: Provided, however, That the board may reconsider and
review parole eligibility any time within three years following
the denial of parole of a person serving a life sentence. The
board shall, at the time of denial, notify the person of the
month and year they may apply for reconsideration and review. If
parole be denied, the inmate shall be promptly notified.
(b) Any person serving a sentence on a felony conviction who
becomes eligible for parole consideration prior to being
transferred to a state correctional center may make written
application for parole. The terms and conditions for parole
consideration established by this article shall be applied to
such inmates.
(c) 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 hereunder are intended or shall 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.
The department of corrections shall be charged with the duty
of supervising 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.
(d) When considering an inmate of a state correctional
center for release on parole, the parole board 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 other reliable
criminal information sources and written reports of the warden or
superintendent of the state correctional center to which such
inmate is sentenced:
(1) 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 therefor;
(2) On improvement or other changes noted in the inmate's
mental and moral condition while in custody, including a
statement expressive of the inmate's current attitude toward
society in general, toward the judge who sentenced him or her,
toward the prosecuting attorney who prosecuted him or her, toward
the policeman or other officer who arrested the inmate and toward
the crime for which he or she is under sentence and his or her
previous criminal record;
(3) 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 prison;
(4) On physical, mental and psychiatric examinations of the
inmate conducted, insofar as practicable, within the two months
next preceding parole consideration by the board.
The board may waive the requirement of any such report when
not available or not applicable as to any inmate considered for parole but, in every such case, shall enter in the record thereof
its reason for such the waiver: Provided, That in the case of an
inmate who is incarcerated because such the inmate has been found
guilty of, or has pleaded guilty to a felony under the provisions
of section twelve, article eight, chapter sixty-one of this code
or under the provisions of article eight-b or eight-c, chapter
sixty-one of this code, the board may not waive the report
required by this subsection and the report shall include a study
and diagnosis which shall include 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 person
during such study or diagnosis shall 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 such
the information disclosed shall indicate the intention or plans
of the parolee to do harm to any person, animal, institution or
to property. Progress reports of outpatient treatment shall be
made at least every six months to the parole officer supervising
such person. 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.
Before releasing any inmate on parole, the board of parole
shall arrange for the inmate to appear in person, or via video
conferencing before at least three members of the board and the
board may examine and interrogate him or her on any matters
pertaining to his or her parole, including reports before the
board made pursuant to the provisions hereof. In the case of
work release centers, community correctional centers and regional
jails and whereby three parole board members are not immediately
available, a single board member may conduct and videotape the
parole hearing, which shall be reviewed by two other board
members no later than the close of the parole hearing month, to
determine their votes for or against parole. The board shall
reach its own written conclusions as to the desirability of
releasing such the inmate on parole and the majority of the board
members considering the release shall concur in the decision.
The warden or superintendent shall furnish all necessary assistance and cooperate to the fullest extent with the parole
board. All information, records and reports received by the
board shall be kept on permanent file.
The board and its designated agents shall at all times have
access to inmates imprisoned in any state correctional center or
in any city, county or regional jail in this state, and shall
have the power to 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 thereof.
The board shall, if so requested by the governor,
investigate and consider all applications for pardon, reprieve or
commutation and shall make recommendation thereon to the
governor.
Prior to making such recommendation and prior to releasing
any inmate on parole, the board shall notify the sentencing judge
and prosecuting attorney at least ten days before such the
recommendation or parole. Any person released on parole shall
participate as a condition of parole in the litter control
program of the county to the extent directed by the board, unless
the board specifically finds that this alternative service would
be inappropriate.
NOTE: The purpose of this bill is to authorize the Parole
Board chairperson to appoint hearing examiners to conduct parole
revocation hearings. The need for such hearing examiners is due
to the significant increase in the adult felony offender
population and the requirement that these hearings must be held
in all county and regional jails throughout the state. This bill
also enables the Parole Board to promulgate rules and regulations
related to the Parole Board's expectations for parole and to
allow the Parole Board to conduct parole hearings via video
conferencing.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.