Bill Text: VA SB1245 | 2023 | Regular Session | Comm Sub
Bill Title: Parolee or felon; arrest & return when serving a period of postrelease supervision.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2023-02-25 - Failed to pass in Senate [SB1245 Detail]
Download: Virginia-2023-SB1245-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§18.2-10, 19.2-295.2, 53.1-136, 53.1-145, 53.1-157, 53.1-161, 53.1-162, 53.1-164, and 53.1-165 of the Code of Virginia are amended and reenacted as follows:
§18.2-10. Punishment for conviction of felony; penalty.
The authorized punishments for conviction of a felony are:
(a) For Class 1 felonies, imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. Any person who was 18 years of age or older at the time of the offense and who is sentenced to imprisonment for life upon conviction of a Class 1 felony shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 (§53.1-186 et seq.) of Title 53.1, or (iii) conditional release pursuant to §53.1-40.01 or 53.1-40.02.
(b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
(d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.
(e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
(g) Except as specifically authorized in subdivision (e) or (f), the court shall impose either a sentence of imprisonment together with a fine, or imprisonment only. However, if the defendant is not a natural person, the court shall impose only a fine.
For any felony offense committed (i) on or after January 1,
1995, the court may, and (ii) on or after July 1, 2000, shall, except in cases
in which the court orders a suspended term of confinement of at least six
months, impose an additional term of incarceration of not less than six months
nor more than three years, which shall be suspended conditioned upon successful
completion of a period of post-release supervision probation
pursuant to §19.2-295.2 and compliance with such other terms as the sentencing
court may require. However, such additional term may only be imposed when the
sentence includes an active term of incarceration in a correctional facility.
For a felony offense prohibiting proximity to children as described in subsection A of §18.2-370.2, the sentencing court is authorized to impose the punishment set forth in that section in addition to any other penalty provided by law.
§19.2-295.2. Probation of felons sentenced for offenses committed on and after January 1, 1995, and on and after July 1, 2000.
A. At the time the court imposes sentence upon a conviction
for any felony offense committed (i) on or after January 1, 1995, the court
may, and (ii) on or after July 1, 2000, shall, in addition to any other
punishment imposed if such other punishment includes an active term of
incarceration in a state or local correctional facility, except in cases in
which the court orders a suspended term of confinement of at least six months,
impose a term of incarceration, in addition to the active term, of not less
than six months nor more than three years, as the court may determine. Such
additional term shall be suspended and the defendant shall be ordered to be
placed under postrelease supervision on probation pursuant to §
19.2-303 upon release from the active term of incarceration. The period of
supervision probation shall be established by the court; however,
such period shall not be less than six months nor more than three years.
Periods of postrelease supervision probation imposed pursuant to
this section upon more than one felony conviction may be ordered to run
concurrently. Periods of postrelease supervision probation
imposed pursuant to this section may be ordered to run concurrently with any
period of probation the defendant may also be subject to serve.
B. The period of postrelease supervision shall be under the
supervision and review of the Virginia Parole Board. The Board shall review
each felon prior to release and establish conditions of postrelease
supervision. Failure Any failure to successfully abide by such
terms and conditions complete the period of probation imposed pursuant
to subsection A shall be grounds to terminate the period of postrelease
supervision and recommit the defendant to the Department of Corrections or to
the local correctional facility from which he was previously released
subject to revocation pursuant to §§19.2-306 and 19.2-306.1. Procedures
for any such termination and recommitment shall be conducted in the same manner
as procedures for the revocation of parole.
C. Postrelease supervision programs shall be operated
through the probation and parole districts established pursuant to §53.1-141.
D. Nothing in this section shall be construed to
prohibit the court from exercising any authority otherwise granted by law.
§53.1-136. Powers and duties of Board; notice of release of certain inmates.
In addition to the other powers and duties imposed upon the Board by this article, the Board shall:
1. Adopt, subject to approval by the Governor, general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review;
2. Adopt, subject to approval by the Governor, rules providing for the granting of parole to those prisoners who are eligible for parole pursuant to §53.1-165.1 on the basis of demonstrated maturity and rehabilitation and the lesser culpability of juvenile offenders;
3. a. Release on parole for such time and upon such terms and conditions as the Board shall prescribe, persons convicted of felonies and confined under the laws of the Commonwealth in any correctional facility in Virginia when those persons become eligible and are found suitable for parole, according to those rules adopted pursuant to subdivisions 1 and 2;
b. Establish the conditions of postrelease supervision
authorized pursuant to §18.2-10 and subsection A of §19.2-295.2;
c. Notify the Department of Corrections of its decision
to grant discretionary parole or conditional release to an inmate. The
Department of Corrections shall set the release date for such inmate no sooner
than 30 business days from the date that the Department of Corrections receives
such notification from the Chairman of the Board, except that the Department of
Corrections may set an earlier release date in the case of an inmate granted
conditional release pursuant to §53.1-40.02. In the case of an inmate granted
parole who was convicted of a felony and sentenced to a term of 10 or more
years, or an inmate granted conditional release, the Board shall notify the
attorney for the Commonwealth in the jurisdiction where the inmate was sentenced
(i) by electronic means at least 21 business days prior to such inmate's
release that such inmate has been granted discretionary parole or conditional
release pursuant to §53.1-40.01 or 53.1-40.02 or (ii) by telephone or other
electronic means prior to such inmate's release that such inmate has been
granted conditional release pursuant to §53.1-40.02 where death is imminent.
Nothing in this section shall be construed to alter the obligations of the
Board under §53.1-155 for investigation prior to release on discretionary
parole;
d. c. Provide that in any case where a person
who is released on parole or postrelease supervision has been committed
to the Department of Behavioral Health and Developmental Services under the
provisions of Chapter 9 (§37.2-900 et seq.) of Title 37.2 the conditions of
his parole or postrelease supervision shall include the requirement that
the person comply with all conditions given him by the Department of Behavioral
Health and Developmental Services and that he follow all of the terms of his
treatment plan;
4. Revoke parole and any period of postrelease and
order the reincarceration of any parolee or felon serving a period of
postrelease supervision or impose a condition of participation in any
component of the Statewide Community-Based Corrections System for
State-Responsible Offenders (§53.1-67.2 et seq.) on any eligible parolee,
when, in the judgment of the Board, he has violated the conditions of his
parole or postrelease supervision or is otherwise unfit to be on parole
or on postrelease supervision;
5. Issue final discharges to persons released by the Board on parole when the Board is of the opinion that the discharge of the parolee will not be incompatible with the welfare of such person or of society;
6. Make investigations and reports with respect to any commutation of sentence, pardon, reprieve or remission of fine, or penalty when requested by the Governor;
7. Publish a statement regarding the action taken by the Board on the parole of prisoners within 30 days of such action. The statement shall list (i) the name of each prisoner considered for parole, (ii) the offense of which the prisoner was convicted, (iii) the jurisdiction in which such offense was committed, (iv) the length of the prisoner's sentence and the date such sentence was imposed, (v) the amount of time the prisoner has served, (vi) whether the prisoner was granted or denied parole, and (vii) the basis for the grant or denial of parole. However, in the case of a prisoner granted parole, the information set forth in clauses (i) through (vii) regarding such prisoner shall be included in the statement published in the month immediately succeeding the month in which notification of the decision to grant parole was given to the attorney for the Commonwealth and any victims; and
8. Ensure that each person eligible for parole receives a timely and thorough review of his suitability for release on parole, including a review of any relevant post-sentencing information. If parole is denied, the basis for the denial of parole shall be in writing and shall give specific reasons for such denial to such inmate.
§53.1-145. Powers and duties of probation and parole officers.
In addition to other powers and duties prescribed by this article, each probation and parole officer shall:
1. Investigate and report on any case pending in any court or before any judge in his jurisdiction referred to him by the court or judge;
2. Supervise and assist all persons within his territory placed on probation, secure, as appropriate and when available resources permit, placement of such persons in a substance abuse treatment program which may include utilization of acupuncture and other treatment modalities, and furnish every such person with a written statement of the conditions of his probation and instruct him therein; if any such person has been committed to the Department of Behavioral Health and Developmental Services under the provisions of Chapter 9 (§37.2-900 et seq.) of Title 37.2, the conditions of probation shall include the requirement that the person comply with all conditions given him by the Department of Behavioral Health and Developmental Services, and that he follow all of the terms of his treatment plan;
3. Supervise and assist all persons within his territory
released on parole or postrelease supervision, secure, as appropriate
and when available resources permit, placement of such persons in a substance
abuse treatment program which may include utilization of acupuncture and other
treatment modalities, and, in his discretion, assist any person within his
territory who has completed his parole, postrelease supervision, or has
been mandatorily released from any correctional facility in the Commonwealth
and requests assistance in finding a place to live, finding employment, or in
otherwise becoming adjusted to the community;
4. Arrest and recommit to the place of confinement from which he was released, or in which he would have been confined but for the suspension of his sentence or of its imposition, for violation of the terms of probation, post-release supervision pursuant to §19.2-295.2 or parole, any probationer, person subject to post-release supervision or parolee under his supervision, or as directed by the Chairman, Board member or the court, pending a hearing by the Board or the court, as the case may be;
5. Keep such records, make such reports, and perform other duties as may be required of him by the Director and the court or judge by whom he was authorized;
6. Order and conduct, in his discretion, drug and alcohol screening tests of any probationer, person subject to post-release supervision pursuant to §19.2-295.2 or parolee under his supervision who the officer has reason to believe is engaged in the illegal use of controlled substances or marijuana, or the abuse of alcohol. The cost of the test may be charged to the person under supervision. Regulations governing the officer's exercise of this authority shall be promulgated by the Director;
7. Have the power to carry a concealed weapon in accordance with regulations promulgated by the Director and upon the certification of appropriate training and specific authorization by a judge of a circuit court;
8. Provide services in accordance with any contract entered into between the Department of Corrections and the Department of Behavioral Health and Developmental Services pursuant to §37.2-912;
9. Pursuant to any contract entered into between the Department of Corrections and the Department of Behavioral Health and Developmental Services, probation and parole officers shall have the power to provide intensive supervision services to persons placed on conditional release, regardless of whether the person has any time remaining to serve on any criminal sentence, pursuant to Chapter 9 (§37.2-900 et seq.);
10. Determine by reviewing the Department of Forensic Science DNA data bank sample tracking system upon intake and again prior to release whether a blood, saliva, or tissue sample is stored in the data bank for each person placed on probation or parole required to submit a sample pursuant to Article 1.1 (§19.2-310.2 et seq.) of Chapter 18 of Title 19.2 and, if a person's sample is not stored in the data bank, require the person placed on probation or parole to submit a sample for DNA analysis;
11. For every offender accepted pursuant to the Interstate Compact for the Supervision of Adult Offenders (§53.1-176.1 et seq.) who has been convicted of an offense that, if committed in Virginia, would require the offender to submit a sample pursuant to Article 1.1 (§19.2-310.2 et seq.) of Chapter 18 of Title 19.2, take a sample or verify that a sample has been taken and accepted into the data bank for DNA analysis in the Commonwealth;
12. Monitor the collection and payment of restitution to the victims of crime for offenders placed on supervised probation;
13. Prior to the release from supervision of any offender on probation as of July 1, 2019, review the criminal history record of the offender at least 60 days prior to release from supervision, or immediately if the offender is scheduled to be released from supervision within less than 60 days, to determine whether all offenses for which the offender is being supervised appear on such record and, if any such offense that is required to be reported to the Central Criminal Records Exchange pursuant to §19.2-390 does not appear, (i) take and provide fingerprints and a photograph of the offender to the Central Criminal Records Exchange to be classified and filed as part of the criminal history record information pursuant to subsection D of § 19.2-390 and (ii) provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that such offense does not appear on the offender's criminal history record; and
14. Upon intake of any offender on or after July 1, 2019, (i) take and provide fingerprints and a photograph of the offender to the Central Criminal Records Exchange to be classified and filed as part of the criminal history record information pursuant to subsection D of §19.2-390, (ii) review the criminal history record of the offender to determine whether all offenses for which the offender is being supervised appear on such record, and (iii) if any such offense that is required to be reported to the Central Criminal Records Exchange pursuant to §19.2-390 does not appear, provide written or electronic notification to the Central Criminal Records Exchange within the Department of State Police that such offense does not appear on the offender's criminal history record.
Nothing in this article shall require probation and parole officers to investigate or supervise cases before general district or juvenile and domestic relations district courts.
§53.1-157. Parolees to comply with terms; furnishing copies.
Each parolee or felon serving a period of postrelease
supervision while on parole or period of postrelease supervision
shall comply with such terms and conditions as may be prescribed by the Board.
When any prisoner is released on parole or postrelease period of supervision,
the Board shall furnish the parolee and the probation and parole officer having
supervision of the parolee or felon serving a period of postrelease
supervision a copy of the terms and conditions of the parole or
postrelease period of supervision and any changes which may from time to
time be made therein.
§53.1-161. Arrest and return of parolee; warrant; release pending adjudication of violation.
The Chairman or any member of the Board may at any time upon
information or a showing of a violation or a probable violation by any parolee
or felon serving a period of postrelease supervision of any of the terms or
conditions upon which he was released on parole or postrelease period of
supervision, issue or cause to be issued, a warrant for the arrest and return
of the parolee or felon serving a period of postrelease supervision to
the institution from which he was paroled, or to any other correctional
facility which may be designated by the Chairman or member. However, a
determination of whether a parolee or felon serving a period of postrelease
supervision returned to a correctional facility pursuant to this section
shall be returned to a state or local correctional facility shall be made based
on the length of the parolee's original sentence as set forth in §53.1-20
or the period of postrelease supervision as set at sentencing. Each such
warrant shall authorize all officers named therein to arrest and return the
parolee to actual custody in the facility from which he was paroled, or to any
other facility designated by the Chairman or member.
In any case in which the parolee or felon serving a period
of postrelease supervision is charged with the violation of any law, the
violation of which caused the issuance of such warrant, upon request of the
parolee or his attorney, the Chairman or member shall as soon as practicable
consider all the circumstances surrounding the allegations of such violation,
including the probability of conviction thereof, and may, after such
consideration, release the parolee, pending adjudication of the violation
charged.
§53.1-162. Arrest of parolee without warrant; written statement.
Any probation and parole officer may arrest a parolee or
felon serving a period of postrelease supervision without a warrant or may
deputize any other officer with power of arrest to do so by a written statement
setting forth that the parolee or felon serving a period of postrelease
supervision has, in the judgment of the probation and parole officer,
violated one or more of the terms or conditions of his parole or postrelease
period of supervision. Such a written statement by a probation and parole
officer delivered to the officer in charge of any state or local correctional
facility shall be sufficient warrant for the detention of the parolee or
felon serving a period of postrelease supervision. Any officer deputized
upon receipt of the written statement shall, in accordance with §19.2-390,
enter, or cause to be entered, the person's name and other appropriate
information required by the Department of State Police into the
"information systems" known as the Virginia Criminal Information
Network (VCIN), established and maintained by the Department pursuant to
Chapter 2 (§52-12 et seq.) of Title 52. Such information shall be deemed a
warrant authorizing the arrest of the person anywhere in the Commonwealth.
§53.1-164. Procedure for return of parolee.
When any parolee or felon serving a period of postrelease
supervision is returned to any facility in accordance with the provisions
of §53.1-161, he shall be held in accordance with rules of the Director and
subject to further action of the Parole Board. The officer in charge of the
facility shall see that the Parole Board is notified promptly of each such
parolee's or felon's return.
§53.1-165. Revocation of parole; hearing; procedure for parolee supervised in another state; appointment of attorney.
A. Whenever any parolee or felon serving a period of
postrelease supervision is arrested and recommitted as provided herein, a
preliminary hearing to determine probable cause that such parolee has violated
one or more of the terms or conditions upon which he was released on parole
or postrelease period of supervision shall be held by any hearing officer
who has been designated as such by the Director of the Department to conduct
such hearings. However, if a nolle prosequi is to be entered in a case where a
parole violation is alleged, no preliminary hearing shall be required.
Upon request of the hearing officer, the attorney for the Commonwealth of the jurisdiction within which such hearings are to be held shall request the circuit court of such jurisdiction to appoint one or more discreet attorneys-at-law to represent parolees in any proceedings held before him. Each attorney so appointed shall be available to serve upon request of the hearing officer. The term of each attorney's appointment shall continue until such time as a successor may be appointed. A hearing officer shall be authorized to issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers and other documents before him and to administer oaths and to take testimony thereunder.
Upon a finding of probable cause by the hearing officer, the Board or its authorized representative shall conduct a hearing, consider the case and act with reference thereto within a reasonable time thereafter. Upon request of the Board, the attorney for the Commonwealth of the jurisdiction within which such hearings are to be held shall request the circuit court of that jurisdiction to appoint one or more discreet attorneys-at-law to represent parolees in proceedings held or to be held before the Board. Each attorney shall be available to serve upon request of the Board. The term of each attorney's appointment shall continue until such time as a successor may be appointed. The Board, in its discretion, may revoke the parole and order the reincarceration of the prisoner for the unserved portion of the term of imprisonment originally imposed upon him, or it may reinstate the parole either upon such terms and conditions as were originally prescribed, or as may be prescribed in addition thereto or in lieu thereof. When a parole violation is based on a new felony conviction for which the individual has been sentenced to two or more years, excluding any time of said sentence which has been suspended, any individual Board member, so authorized by the Board, may after such hearing revoke the individual's parole as otherwise provided herein.
Upon revocation of parole for any felony offense, the Board or its authorized representative shall order that the Department of Corrections take fingerprints and a photograph of the person for each offense and transmit such information to the Central Criminal Records Exchange pursuant to subsection D of §19.2-390.
B. In cases in which a parolee or felon serving a period of
postrelease supervision is in another state, any hearing officer who has
been designated as such by the Director of the Department may be sent to that
state to conduct a preliminary hearing to determine probable cause that the
parolee has violated one or more of the terms and conditions upon which he was
released upon parole.
C. Any attorney-at-law appointed pursuant to this section shall be paid as directed by the court making the appointment, from funds appropriated for court costs and expenses, reasonable compensation on an hourly basis and necessary expenses, based upon a report to be furnished to it by such attorney. In the event an attorney-at-law is appointed in another state, he shall be paid out of funds appropriated to the Department.
2. That the provisions of this act shall become effective on July 1, 2024.
3. That the provisions of this act shall apply to an offense that occurs on or after July 1, 2024.