H. B. 2275


(By Delegates Hunt, Faircloth, Givens and Amores)
[Introduced January 18, 1999; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact section four, article six, chapter twenty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article eleven, chapter sixty-one of said code; to amend and reenact sections one and one-a, article eleven-a, chapter sixty-two of said code; and to amend and reenact sections two and thirteen, article twelve of said chapter, all relating to boot camp eligibility; classification of offenses; release for work and other purposes by courts of record with criminal jurisdiction; other sentencing alternatives; circumstances under which home incarceration may not be ordered; eligibility for probation; and eligibility for parole.

Be it enacted by the Legislature of West Virginia:
That section four, article six, chapter twenty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section one, article eleven, chapter sixty-one of said code be amended and reenacted; that sections one and one-a, article eleven-a, chapter sixty-two of said code be amended and reenacted; and that sections two and thirteen, article twelve of said chapter be amended and reenacted, all to read as follows:
CHAPTER 25. DIVISION OF CORRECTIONS.

ARTICLE 6. BOOT CAMP.
§25-6-4. Eligibility.
(a) Appropriate Inmates are eligible within the provisions of this section and may participate in the boot camp program only in accordance with the following criteria:
(1) One who is not less than eighteen years of age nor more than twenty-eight years of age;
(2) One who is medically, physically and psychologically fit to participate in the program;
(3) One who volunteers for the program;
(4) One who has been convicted of a felony and has been sentenced to the custody of the commissioner of corrections for a period of incarceration of not less than one year;
(5) One who was not convicted of murder in the first degree or murder in the second degree;
(6) One who was not convicted of kidnapping;
(7) One who was not convicted of first or second degree sexual assault;
(8) One who was not convicted of any offense pursuant to article eight-d, chapter sixty-one of this code;
(9) One who was not convicted of incest;
(10) One who has not been previously convicted of any other crime of violence against a person, as defined in section one, article eleven, chapter sixty-one of this code;
(10) (11) One who has not been previously convicted of a felony; and
(11) (12) Such Other criteria as the commissioner of the division of corrections may promulgate pursuant to chapter twenty-nine-a of this code.
(b) Except as specified in subsection (a) of this section, the circuit court of conviction may direct that a person be admitted or excluded from participation in the state boot camp program and the commissioner, pursuant to operational policies and procedures, may in his or her discretion, direct placement of an inmate in a boot camp program.
(c) Any placement in the boot camp shall be subject to the extent funding is available or appropriated and subject to the availability of space in the boot camp: Provided, That nothing in this section shall give any court the power to hold the division of corrections or any officer or employee of the division in contempt of court for failure to adhere to a circuit court directive that a person be placed in the state boot camp program if space or funding is unavailable.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-1. Classification of offenses.

(a) Offenses are either felonies or misdemeanors. Such Offenses as which are punishable by confinement in the penitentiary are felonies; all other offenses are misdemeanors.
(b) The word "penitentiary" as used in this section shall mean and include means any and all institutions institution provided by the state for the confinement of persons sentenced to confinement in the penitentiary, notwithstanding that transfers of such persons from any one of such institutions institution to another may be authorized.
(c) As used in this section, and in section four, article six, chapter twenty-five of this code; section one, et seq., article five, chapter forty-nine of this code; section ten-a, article two, chapter sixty-one of this code; section one, article one-c, chapter sixty-two of this code; sections one and one-a, article eleven-a, chapter sixty-two of this code; section six, article eleven-b, chapter sixty-two of this code; and sections two and thirteen, article twelve, chapter sixty-two of this code, the terms "crime of violence against a person" or "use of violence against a person" includes, but is not limited to, the following crimes:
(1) Treason under section one, article one, chapter sixty-one of this code;
(2) Murder under sections one, two and three, article two, chapter sixty-one of this code;
(3) Voluntary manslaughter under section four, article two, chapter sixty-one of this code;
(4) Attempt to kill or injure by poison under section seven, article two, chapter sixty-one of this code;
(5) Malicious or unlawful assault under section nine, article two, chapter sixty-one of this code;
(6) Assault during the commission or attempt to commit a felony under section ten, article two, chapter sixty-one of this code;
(7) Malicious assault; unlawful assault; battery and recidivism of battery; assault on police officer, conservation officers or county or state correctional officers under section ten-b, article two, chapter sixty-one of this code;
(8) Robbery or attempted robbery under section twelve, article two, chapter sixty-one of this code;
(9) Abduction of a person or kidnapping or concealing a child under section fourteen, article two, chapter sixty-one of this code;
(10) Kidnapping under section fourteen-a, article two, chapter sixty-one of this code;
(11) Arson in the first degree under section one, article three, chapter sixty-one of this code;
(12) Incest under section twelve, article eight, chapter sixty-one of this code;
(13) Sexual assault in the first degree under section three, article eight-b, chapter sixty-one of this code;
(14) Sexual assault in the second degree under section four, article eight-b, chapter sixty-one of this code;
(15) Sexual abuse in the first degree under section seven, article eight-b, chapter sixty-one of this code;
(16) Murder of a child by a parent, guardian or custodian or other person by refusal or failure to supply necessities, or by delivery, administration or ingestion of a controlled substance under section two, article eight-d, chapter sixty-one of this code;
(17) Death of a child by a parent, guardian or custodian or other person by child abuse under section two-a, article eight-d, chapter sixty-one of this code;
(18) Child abuse resulting in injury under section three, article eight-d, chapter sixty-one of this code;
(19) Child neglect resulting in injuries under section four, article eight-d, chapter sixty-one of this code; and
(20) Sexual abuse by a parent, guardian or custodian, or parent, guardian or custodian allowing sexual abuse to be inflicted upon a child, or displaying of sex organs by a parent, guardian or custodian under section five, article eight-d, chapter sixty-one of this code.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1. Release for work and other purposes by courts of record with criminal jurisdiction.

(1) Except for those defendants who are being sentenced or committed for a crime of violence to a person, when a defendant is sentenced or committed for a term of one year or less by a court of record having criminal jurisdiction, such the court may in its order grant to such that defendant the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes:
(a) To work at his or her employment;
(b) To seek employment;
(c) To conduct his or her own business or to engage in other self-employment, including, in the case of a woman, housekeeping and attending to the needs of his or her family;
(d) To attend an educational institution;
(e) To obtain medical treatment;
(f) To devote time to any other purpose approved of or ordered by the court, including participation in the litter control program of the county unless the court specifically finds that this alternative service would be inappropriate.
(2) Whenever an inmate who has been granted the privilege of leaving the jail under this section is not engaged in the activity for which such leave is the privilege was granted, he or she shall be confined in jail.
(3) An inmate sentenced to ordinary confinement may petition the court at any time after sentence for the privilege of leaving jail under this section and may renew his or her petition in the discretion of the court. The court may withdraw the privilege at any time by order entered with or without notice.
(4) If the inmate has been granted permission to leave the jail to seek or take employment, the court's probation officers, or if none, the state's division of corrections shall assist him or her in obtaining suitable employment and in making certain that employment already obtained is suitable. Employment shall not be deemed suitable unsuitable if the wages or working conditions or other circumstances present a danger of exploitation or of interference in a labor dispute in the establishment in which the inmate would be employed.
(5) If an inmate is employed for wages or salary, the clerk of the court shall collect the same or shall require the inmate to turn over his or her wages or salary in full when received, and shall deposit the same in a trust account and shall keep a ledger showing the status of the account of each inmate. Earnings levied upon pursuant to writ of attachment or execution or in other lawful manner shall be collected from the employer and shall may not be collected hereunder, but when the clerk has requested transmittal of earnings prior to levy, such request shall have priority. When After an employer transmits such an inmate's earnings to the clerk pursuant to this subsection, he shall have no liability that employer is no longer liable to the inmate for such those earnings. From such those earnings so collected or transmitted, the clerk shall pay the inmate's board and personal expenses both inside and outside the jail and shall deduct installments on fines, if any, and, to the extent directed by the court, shall pay the support of the inmate's dependents: Provided, That at least twenty-five percent of the earnings collected or received by the clerk on behalf of an inmate shall be paid for the support of such inmate's dependents, if any. If sufficient funds are available after making the foregoing payments, the clerk may, with the consent of the inmate, pay, in whole or in part, any unpaid debts of the inmate. Any balance then remaining shall be retained by the clerk and shall be paid to the inmate at the time of his or her discharge.
(6) An inmate who is serving serves his or her sentence pursuant to this section shall be is eligible for a reduction of his or her term sentence for good behavior and faithful performance of duties in the same manner as if he or she had served his or her term sentence in ordinary confinement.
(7) The court shall may not make an order granting the privilege of leaving the institution under this section unless it is satisfied that there are adequate facilities for the administration of such the privilege in the jail or other institution in which the defendant will be confined.
(8) In every case wherein the defendant has been convicted of an offense, defined in section twelve, article eight, chapter sixty-one, or in article eight-b or eight-d of said chapter against a child, the defendant shall not live in the same residence as any minor child, nor exercise visitation with any minor child and shall have no contact with the victim of the offense: Provided, That the defendant may petition the court of the circuit wherein he was so convicted for a modification of this term and condition of this probation and the burden shall rest upon the defendant to demonstrate that a modification is in the best interest of the child.
 §62-11A-1a. Other sentencing alternatives.
(a) Except for any person convicted of a crime of violence against a person, as defined in section one, article eleven, chapter sixty-one of this code, any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code of a misdemeanor or felony, which is punishable by imposition of a fine or confinement in the county or regional jail or the state penitentiary, or both fine and confinement, may, in the discretion of the sentencing judge or magistrate, as an alternative to the sentence imposed by statute for the crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be are required to spend weekends or other days normally off from work in jail;
(2) The work program under which sentenced persons would be are required to spend the first two or more days of their sentence in jail and then, in the discretion of the court, would be are assigned to 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 labor shall be credited as one day of served against the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch meals and work clothes; or
(3) The community service program under which persons sentenced would spend no time in jail but would be are sentenced to perform a number of hours or days of community service work with government entities or charitable or nonprofit entities approved by the circuit court. Regarding any portion of the sentence designated as confinement, eight hours of community service work shall be credited as one day of the sentence imposed. Regarding any portion of the sentence designated as a fine, the fine shall be credited at an hourly rate equal to the prevailing federal minimum wage at the time the sentence was imposed. In the discretion of the court, the sentence credits may run concurrently or consecutively. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch meals and work clothes.
(b) In no event may The duration of the alternate sentence may not 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) In circuit court cases, that 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) In circuit court cases, that the offense underlying the sentence is not a felony offense for which violence or the threat of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the court's probation officers or the county sheriff or, in magistrate court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(5) 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 incarceration, 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, regional jail or penitentiary: Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the supervision of the sheriff, his or her deputies, a jailer or a guard, shall may require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.
 ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.

(a) Except for any person convicted of a crime of violence against a person, as defined in section one, article eleven, chapter sixty-one of this code, all persons who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, and all persons who are found guilty of or plead guilty to any misdemeanor, shall be eligible for probation, notwithstanding the provisions of sections eighteen and nineteen, article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be is ineligible for probation. Nothing in this section shall apply applies 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.
(c)(1) The existence of any fact which would make any person ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm shall may not be applicable considered in determining probation eligibility unless such that fact is clearly stated and included in the indictment or presentment by which such that person is charged and that fact is either: (i) Found by the court upon a plea of guilty or nolo contendere; or (ii) found by the jury, if the matter be tried before a jury, upon submitting to such jury submission to the jury of a special interrogatory for such that purpose; or (iii) found by the court, if the matter be tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year one thousand nine hundred eighty-one:
(A) Shall Apply to all applicable offenses occurring on or after the first day of August of that year;
(B) 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;
(C) 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 a 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 a finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such the finding shall be is sought as fully as such those 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;
(D) Shall Do not apply with respect to cases not affected by such amendment those amendments, and in such those cases, the prior provisions of this section shall apply and shall be construed without reference to such amendment those amendments; and
Insofar as such those amendments relate to mandatory sentences without probation, all such matters requiring such sentence shall must be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(d) For the purpose purposes of this section, the term "firearm" shall mean means 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.
 (e) In the case of Any person who has been found guilty of, or pleaded guilty to, a felony or misdemeanor under the provisions of section twelve or twenty-four, article eight, chapter sixty-one of this code, or under the provisions of article eight-c or eight-b eight-b or eight-c of said chapter, such person shall only be is eligible for probation only after undergoing a physical, mental and psychiatric study and diagnosis which shall include an on-going treatment plan requiring active participation in sexual abuse counseling at a mental health facility or through some other approved program: Provided, That nothing disclosed by the person during such study or diagnosis shall may be made available to any law-enforcement agency, or other party without that person's consent, or nor may it be made admissible in any court of this state, unless such the information disclosed shall indicate the indicates a present intention or plans plan of the probationer or potential probationer to do harm to any person, animal, institution or property, in which case such the information may be released only to such those persons as might be necessary for protection of the said person, animal, institution or property believed to be in possible danger.
(f) Any person who has been convicted of a violation of the provisions of article eight-b, eight-c or sections five and six, article eight-d, chapter sixty-one of this code, or of section fourteen, article two, or of sections twelve and thirteen, article eight, chapter sixty-one of this code, or of a felony violation involving a minor of section six or seven, article eight, chapter sixty-one of this code, or of a similar provision in another jurisdiction shall be required to be registered upon release on probation. Any person who has been convicted of an attempt to commit any of the offenses set forth in this subsection shall also be registered upon release on probation.
 (g) The probation officer shall within three days of release of the offender, send written notice to the state police of the release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent predator as defined in section two, article eight-f, chapter sixty-one of this code, the notice shall also include:
(i) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental abnormality or personality disorder.
 §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 in this article, shall release any such that inmate on parole for such those terms and upon such those 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 crime of violence to a person, be eligible for parole at any point during his or her incarceration, nor may 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 is ineligible for parole prior to serving a minimum of until he or she has served at least five years of his or her sentence, if indeterminate, or one third of his or her definite term sentence, whichever shall be the is greater. Nothing in this section shall apply applies 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 that fact is clearly stated and included in the indictment or presentment by which such that person was charged and that fact 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 jury submission to the jury a special interrogatory for such this 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 means 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 a 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 a finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such that finding shall be is sought as fully as such those 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 Do not apply with respect to cases not affected by such amendment those amendments and in such those cases the prior provisions of this section shall apply and be construed without reference to such amendment.
Insofar as such those 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 May not be in punitive segregation or administrative segregation as a result of disciplinary action;
(3) Shall May 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 Must 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 parole release plan having first been approved by the commissioner of corrections or his or her authorized representative; and
(5) Shall Must 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 at least ten years, and no person sentenced for life who has also been previously twice convicted of a felony may be paroled until he or she has served at least 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 is the duty of the board, as soon as such person any inmate becomes eligible for parole consideration, to consider the advisability of his or her release on parole. If, upon such that consideration, parole be is denied, the board shall at least once a year reconsider and review the case of every inmate so eligible denied, 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 is denied in any case, 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 waiver: Provided, That in the case of an inmate who is incarcerated because such 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 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 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. The board shall reach its own written conclusions as to the desirability of releasing such 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 recommendation or parole The board shall notify the sentencing judge and prosecuting attorney at least ten days before making any recommendation concerning applications for pardon, reprieve or commutation and before releasing any inmate on 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 eliminate violent offenders from that group of criminal defendants and inmates who are eligible under existing law for work release; alternative sentencing; home incarceration; probation; parole; boot camp; and juvenile jurisdiction treatment; and to identify by statutory provision those offenses which contain the element of "violence against a person" necessary to preclude these individuals from such eligibility.

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