ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 137
(By Senators Sharpe, McKenzie, Ross and Caldwell)
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[Originating in the Committee on the Judiciary;
reported February 28, 2001.]
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A BILL to amend and reenact section thirteen, article twelve,
chapter sixty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to clarifying
the discretion statutorily granted to the parole board in
the release of prisoners.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article twelve, chapter sixty-two of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§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 served,
and subject to the limitations hereinafter provided, shall
release any inmate on parole for terms and upon conditions as are
provided by this article has the authority to release the inmate
on parole under the terms and conditions as provided by this
article.
(b) Any inmate of a state correctional center is eligible for
parole if he or she:
(1) (A) Has served the minimum term of his or her
indeterminate sentence, or has served one fourth of his or her
definite term sentence, as the case may be, except that in no
case is any person who committed, or attempted to commit a felony
with the use, presentment or brandishing of a firearm, 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 is not 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 is greater.
Nothing in this section 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 fact is clearly stated and
included in the indictment or presentment information by which
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 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" 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.
As used in this section, "firearm" shall be defined by the
provisions of section two, article seven, chapter sixty-one of
this code.
(B) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one:
(i) Apply to all applicable offenses occurring on or after the
first day of August of that year;
(ii) Apply with respect to the contents of any indictment or
presentment information returned on or after the first day of
August of that year irrespective of when the offense occurred;
(iii) 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 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 gives 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 the
finding will 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 or
information upon which the matter is being tried; and
(iv) Does not apply with respect to cases not affected by the
amendments and in such cases the prior provisions of this section
apply and are construed without reference to the amendments.
Insofar as the amendments relate to mandatory sentences
restricting the eligibility for parole, all matters requiring a
mandatory sentence shall be proved beyond a reasonable doubt in
all cases tried by the jury or the court.
(2) Is not in punitive segregation or administrative
segregation as a result of disciplinary action;
(3) Has 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) Has 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 post-release counseling and treatment, the parole
release plan having been approved by the commissioner of
corrections or his or her authorized representative; and
(5) Has satisfied the board that if released on parole he or
she will not constitute a danger to the community.
(c) Except in the case of a person 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, is
eligible for parole until he or she has served fifteen years.
(d) In the case of a person sentenced to any state
correctional center, it is the duty of the board, as soon as a
person becomes eligible, to consider the advisability of his or
her release on parole.
(e) If, upon consideration, parole is denied, the board shall
promptly notify the inmate of the denial. The board shall, at
the time of denial, notify the person of the month and year he or
she may apply for reconsideration and review. The board shall at
least once a year reconsider and review the case of every inmate
who was denied parole and is still eligible: Provided, That the
board may reconsider and review parole eligibility anytime within
three years following the denial of parole of a person serving a
life sentence.
(f) 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 will be considered for parole by the
board. The terms and conditions for parole consideration
established by this article apply to such inmates.
(g) 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 may 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.
(h) The department division of corrections is 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.
(i)(1) When considering an inmate of a state correctional
center for release on parole, the parole board is to 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 administrator of the state correctional center to
which such inmate is sentenced:
(i) 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;
(ii) 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;
(iii) 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;
(iv) On physical, mental and psychiatric examinations of the inmate conducted, insofar as practicable, within the two months
next preceding parole consideration by the board.
(2) The board may waive the requirement of any 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 the waiver: Provided, That in the case of an
inmate who is incarcerated because 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 of said
chapter, the board may not waive the report required by this
subsection and the report is to include a study and diagnosis
including 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
the study or diagnosis may 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 the
information disclosed indicates the intention or plans of the
parolee to do harm to any person, animal, institution or to
property. Progress reports of outpatient treatment are to be made at least every six months to the parole officer supervising
the 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.
(j) 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: Provided, That an inmate may appear by video
teleconference if the members of the parole board conducting the
examination are able to contemporaneously see the inmate and hear
all of his or her remarks and if the inmate is able to
contemporaneously see each of the members of the parole board
conducting the examination and hear all of the members' remarks.
The board shall reach its own written conclusions as to the
desirability of releasing the inmate on parole and the majority
of the board members considering the release shall concur in the decision. The warden or superintendent administrator shall
furnish all necessary assistance and cooperate to the fullest
extent with the parole board. All information, records and
reports received by the board are to be kept on permanent file.
(k) The board and its designated agents are at all times to
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.
(l) 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.
(m) Prior to making a recommendation for pardon, reprieve or
commutation and prior to releasing any inmate on parole, the
board shall notify the sentencing judge and prosecuting attorney
at least ten days before the recommendation or parole.
(n) 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.
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(NOTE: The purpose of this bill is to clarify the discretion
granted the parole board in the release of prisoners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.