House Bill No. 125

Introduced By grady

By Request of the Department of Corrections



A Bill for an Act entitled: An Act revising and clarifying intermediate sentencing options; revising the home arrest law; revising the law relating to community corrections programs and facilities; amending sections 46-18-201, 46-18-1001, 46-18-1002, 46-18-1003, 53-1-203, 53-30-302, 53-30-303, 53-30-312, 53-30-313, 53-30-314, 53-30-315, 53-30-321, 53-30-322, and 53-30-326, MCA; and repealing sections 46-23-401, 46-23-405, 46-23-411, 46-23-412, 46-23-421, 46-23-422, 46-23-426, 53-30-324, and 53-30-325, MCA.



STATEMENT OF INTENT

A statement of intent is required for this bill because 53-1-203 gives the department of corrections authority to adopt administrative rules relating to the future building or expanding of new prerelease centers. The legislature intends the rules to address, at a minimum:

(1) a procedure for notifying residents in an area in which a new prerelease center or expansion of an existing center is contemplated;

(2) a procedure and timetable for public notice, public comment, and a public hearing on a new prerelease center or expansion of an existing center; and

(3) siting criteria to be used to determine the suitability of a specific site for a new prerelease center or expansion of an existing center.

The rules are not intended to address plans that have been approved by a community for a new or expanded prerelease facility on [the effective date of this act].



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 46-18-201, MCA, is amended to read:

"46-18-201.   (Temporary) Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:

(a)  defer imposition of sentence, except as provided in 61-8-714 and 61-8-722 for sentences for driving under the influence of alcohol or drugs or as provided in 61-6-304, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:

(i)  jail base release;

(ii) jail time not exceeding 180 days;

(iii) conditions for probation;

(iv) payment of the costs of confinement;

(v)  payment of a fine as provided in 46-18-231;

(vi) payment of costs as provided in 46-18-232 and 46-18-233;

(vii) payment of costs of court-appointed counsel as provided in 46-8-113;

(viii) with the approval of the facility or program, an order that the offender be placed in a community corrections facility or program as provided in 53-30-321;

(ix) with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, an order that the offender be placed in a prerelease center or prerelease program for a period not to exceed 1 year;

(ix)(x)  community service;

(x)(xi)  home arrest as provided in Title 46, chapter 18, part 10;

(xi)(xii) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

(xii)(xiii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

(xiii)(xiv)  any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xii) (1)(a)(xiii).

(b)  suspend execution of sentence for a period up to the maximum sentence allowed or for a period of 6 months, whichever is greater, for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (1)(a).

(c)  impose a fine as provided by law for the offense;

(d)  require payment of costs as provided in 46-18-232 or payment of costs of court-appointed counsel as provided in 46-8-113;

(e)  impose a county jail or state prison sentence, as provided in Title 45, for the offense or commit the defendant to the department of corrections for a period not to exceed 5 years for placement in an appropriate correctional institution or program;

(f)  with the approval of the facility or program, order the offender to be placed in a community corrections facility or program as provided in 53-30-321; or

(g) with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, order the offender to be placed in a prerelease center or prerelease program for a period not to exceed 1 year; or

(g)(h)  impose any combination of subsections (1)(b) through (1)(f) (1)(g).

(2)  In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of restitution to the victim as provided in 46-18-241 through 46-18-249. If the court determines that the defendant is unable to pay restitution, then it may impose, in addition to any other sentence, community service under 46-18-241.

(3)  If a financial obligation is imposed as a condition under subsection (1)(a), sentence may be deferred for a period not exceeding 2 years for a misdemeanor or for a period not exceeding 6 years for a felony, regardless of whether any other conditions are imposed.

(4)  If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order. Credit, however, must be allowed for jail or home arrest time already served.

(5)  Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended: 45-5-103, 45-5-202(3) relating to aggravated assault, 45-5-302(2), 45-5-303(2), 45-5-401(2), 45-5-502(3), 45-5-503(2) and (3), 45-9-101(2), (3), and (5)(d), 45-9-102(4), and 45-9-103(2).

(6)  Except as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.

(7)  Except as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.

(8)  If the victim was less than 16 years old, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under 45-5-503, 45-5-504, 45-5-505, or 45-5-507 may not be deferred or suspended. Section 46-18-222 does not apply to the first 30 days of the imprisonment.

(9)  In imposing a sentence on a defendant convicted of a sexual or violent offense as defined in 46-23-502, the court may not waive the registration requirement provided in 46-18-254, 46-18-255, and Title 46, chapter 23, part 5.

(10) A person convicted of a sexual offense, as defined in 46-23-502, and sentenced to imprisonment in the state prison shall enroll in the educational phase of the prison's sexual offender program.

(11) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the a state prison, including placement of the offender in a community corrections facility or program or a prerelease center or prerelease program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the court subsequently sentences the offender is subsequently sentenced to the a state prison or the women's correctional system, the court shall state its the reasons why alternatives it did not select an alternative to imprisonment were not selected, based on the criteria contained in 46-18-225.

(12) If a felony sentence includes probation, the department of corrections shall supervise the defendant unless the court specifies otherwise.

46-18-201.   (Effective July 1, 1997) Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:

(a)  defer imposition of sentence, except as provided in 61-8-714 and 61-8-722 for sentences for driving under the influence of alcohol or drugs or as provided in 61-6-304, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:

(i)  jail base release;

(ii) jail time not exceeding 180 days;

(iii) conditions for probation;

(iv) payment of the costs of confinement;

(v)  payment of a fine as provided in 46-18-231;

(vi) payment of costs as provided in 46-18-232 and 46-18-233;

(vii) payment of costs of court-appointed counsel as provided in 46-8-113;

(viii) with the approval of the facility or program, an order that the offender be placed in a community corrections facility or program as provided in 53-30-321;

(ix) with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, an order that the offender be placed in a prerelease center or prerelease program for a period not to exceed 1 year;

(ix)(x)  community service;

(x)(xi)  home arrest as provided in Title 46, chapter 18, part 10;

(xi)(xii) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

(xii)(xiii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

(xiii)(xiv)  any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xii) (1)(a)(xiii).

(b)  suspend execution of sentence for a period up to the maximum sentence allowed or for a period of 6 months, whichever is greater, for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (1)(a).

(c)  impose a fine as provided by law for the offense;

(d)  require payment of costs as provided in 46-18-232 or payment of costs of court-appointed counsel as provided in 46-8-113;

(e)  impose a county jail or state prison sentence, as provided in Title 45, for the offense or commit the defendant to the department of corrections for a period not to exceed 5 years for placement in an appropriate correctional institution or program;

(f)  with the approval of the facility or program, order the offender to be placed in a community corrections facility or program as provided in 53-30-321; or

(g) with the approval of the prerelease center or prerelease program and confirmation by the department of corrections that space is available, order the offender to be placed in a prerelease center or prerelease program for a period not to exceed 1 year; or

(g)(h)  impose any combination of subsections (1)(b) through (1)(f) (1)(g).

(2)  In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of restitution to the victim as provided in 46-18-241 through 46-18-249. If the court determines that the defendant is unable to pay restitution, then it may impose, in addition to any other sentence, community service under 46-18-241.

(3)  If a financial obligation is imposed as a condition under subsection (1)(a), sentence may be deferred for a period not exceeding 2 years for a misdemeanor or for a period not exceeding 6 years for a felony, regardless of whether any other conditions are imposed.

(4)  If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order. Credit, however, must be allowed for jail or home arrest time already served.

(5)  Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended: 45-5-103, 45-5-202(3) relating to aggravated assault, 45-5-302(2), 45-5-303(2), 45-5-401(2), 45-5-502(3), 45-5-503(2) and (3), 45-9-101(2), (3), and (5)(d), 45-9-102(4), and 45-9-103(2).

(6)  Except as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.

(7)  Except as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.

(8)  If the victim was less than 16 years old, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under 45-5-503, 45-5-504, 45-5-505, or 45-5-507 may not be deferred or suspended. Section 46-18-222 does not apply to the first 30 days of the imprisonment.

(9)  In imposing a sentence on a defendant convicted of a sexual or violent offense as defined in 46-23-502, the court may not waive the registration requirement provided in 46-18-254, 46-18-255, and Title 46, chapter 23, part 5.

(10) A person convicted of a sexual offense, as defined in 46-23-502, and sentenced to imprisonment in the state prison shall enroll in and complete the educational phase of the prison's sexual offender program.

(11) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program or a prerelease center or prerelease program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the court subsequently sentences the offender is subsequently sentenced to the a state prison or the women's correctional system, the court shall state its the reasons why alternatives it did not select an alternative to imprisonment were not selected, based on the criteria contained in 46-18-225.

(12) If a felony sentence includes probation, the department of corrections shall supervise the defendant unless the court specifies otherwise.

(12)(13) Except as provided in 46-18-222, a provision of this section that conflicts with 46-18-219 does not apply to a person sentenced under 46-18-219."



Section 2.  Section 46-18-1001, MCA, is amended to read:

"46-18-1001.  Definitions. As used in this part, the following definitions apply:

(1)  (a)  "Home" means the temporary or permanent residence of an offender consisting of the actual living area approved by the supervising authority.

(b)  When more than one residence or family are located on a single piece of property, the term does not include the residence of any other person who is not part of the social unit formed by the offender's immediate family.

(2)  "Home arrest" means the use of a person's home for purposes of confinement and home arrest procedures and conditions imposed under this part. It does not include intensive supervision by the department of corrections.

(3)  "Monitoring device" means an electronic device or apparatus that is limited in capability to capable of recording or transmitting information concerning the offender's presence in or absence from the home. The device must be minimally intrusive may include an apparatus for testing the offender's breath for the presence of alcohol. A telephone alone is not a monitoring device.

(4)  "Supervising authority" means,:

(a) in the case of an adult felon, the corrections division of the department of corrections;

(b) in the case of an adult misdemeanant, a court-approved entity other than the corrections division of the department of corrections; or,

(c) in the case of a juvenile, the juvenile probation division of the youth court or any other person or entity appointed by the court.

(5)  "Violent felony offense" means deliberate homicide, mitigated deliberate homicide, negligent homicide, aggravated assault, negligent vehicular assault, kidnapping, aggravated kidnapping, robbery, sexual intercourse without consent, sexual abuse of children, arson, aggravated burglary, escape, any criminal attempt to commit an enumerated offense, or conviction as a persistent felony offender when the offender has a felony conviction for any of the listed offenses within the 5-year period preceding the date of the present conviction."



Section 3.  Section 46-18-1002, MCA, is amended to read:

"46-18-1002.  Home arrest -- petition -- agreement. (1) An offender may petition a sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail or state prison be served under conditions of home arrest. The term of home arrest may not exceed 6 months. Petitions may be considered and ruled upon by the sentencing court prior to and throughout the term of the offender's sentence.

(2) The petition must include:

(a) either a statement by the department of corrections that it has a monitoring device available for its use on the offender or information from the offender as to a private company that can and will implement the home arrest, along with the name and credentials of the company and the type of monitoring device to be used;

(b) the place of any employment of the offender and the name of the offender's supervisor;

(c) if the offender has been accepted into one, a plan for participation in an educational, treatment, or training program;

(d) the source and amount of any income of the offender; and

(e) the address at which the home arrest will occur and a list of any other persons who will reside at that address during all or part of the home arrest, their ages, and their relationship to the offender.

(2)(3)  The sentencing judge shall study the records of all persons petitioning for home arrest and, in his discretion, may:

(a)  refer the case to the appropriate supervising authority for approval and acceptance into the home arrest program. The supervising authority may accept or reject any referral.

(b)  conduct hearings on the desirability of granting home arrest;

(c)  order a term of home arrest in lieu of a sentence of imprisonment in the county jail or state prison. The time actually spent in home arrest pursuant to this section may not exceed 6 months or the maximum term of imprisonment imposed, whichever is shorter.

(d)  issue a warrant for a person when there is reason to believe the person has violated the conditions of home arrest, conduct hearings on the matter, and order imprisonment in the county jail or state prison upon proof of violation; and

(e)  grant final discharge from arrest.

(3)  A home arrestee shall execute a written agreement with the court setting forth all the conditions of home arrest. The order of home arrest must incorporate that agreement and must order compliance with its terms. The order and agreement must be transmitted to the supervising authority and to the appropriate jail or prison official.

(4)  Time spent in home arrest must be credited against the maximum term of imprisonment imposed for the offender pursuant to law. refer the petition to the supervising authority. The supervising authority shall review the petition and accept or reject the offender for home arrest. If the offender is rejected, the sentencing judge shall dismiss the petition. If the offender is accepted, the sentencing judge may conduct a hearing on the petition and grant or deny the petition. An order for home arrest must incorporate the home arrest plan, with any modifications by the court, and require compliance with the plan. The clerk of court shall give the county attorney a copy of the order.

(5)(4)  Home arrest must be under the supervision of the supervising authority. A home arrestee is subject to the decisions and applicable rules of the supervising authority during the period of supervision. Fees for supervision or equipment usage must be paid directly to the clerk of the sentencing court and must be distributed by the clerk to the supervising authority.

(5) The offender shall file with the court the written and notarized consent to the home arrest signed by each adult who will reside with the offender during all or part of the home arrest."



Section 4.  Section 46-18-1003, MCA, is amended to read:

"46-18-1003.  Home arrest -- conditions -- fees -- consent of cohabitors. (1) A home arrestee must be confined to his the arrestee's home under conditions imposed by the sentencing court, which may include but are not limited to the following:

(a)  The home arrestee must be confined to his the arrestee's home at all times except when:

(i)  working at approved employment or traveling directly to and from employment;

(ii) seeking employment;

(iii) undergoing medical, psychiatric, or mental health treatment or participating in an approved counseling or aftercare program;

(iv) attending an approved educational institution or program approved by the supervising authority;

(v)  attending a regularly scheduled religious service at a place of worship;

(vi) participating in an approved community service program; or

(vii) conforming to a schedule prepared by the supervising authority, specifically setting forth the times when he the arrestee may be absent from the home and the locations where he the arrestee may be during those times.

(b)  The home arrestee may not commit another offense during the period of home arrest.

(c)(b)  The home arrestee may not change the place of home arrest or the schedule without prior approval of the supervising authority.

(d)(c)  The home arrestee shall maintain a telephone or other approved in the home and the ordered monitoring device in the home or on the arrestee's person at all times.

(e)(d)  Conditions set by the court or the supervising authority may include:

(i)  restitution;

(ii) supervision fees under 7-32-2245, 46-18-702, or 46-18-703, or 46-23-1031;

(iii) any of the conditions imposed on persons on probation or conditional discharge under 46-23-1011 or 46-23-1021.

(2)  A written and notarized consent agreement must be filed with the court by every adult who will share the offender's home during the term of home arrest. An arrest warrant may be issued if the supervising authority has reason to believe that the home arrestee has violated a condition of the home arrest. Upon arrest, the supervising authority shall notify the sentencing court and give the court a written report on the violation. The court shall conduct a hearing and, if the violation is established, may revoke the home arrest and require the home arrestee to serve all or a part of the sentence. If imposition of sentence was suspended, the court may impose any sentence that could have been originally imposed. Time spent under home arrest must be credited against any sentence to be served.

(3)  Violation of the provisions of any condition of home arrest may subject the home arrestee to prosecution under 45-7-306."



Section 5.  Section 53-1-203, MCA, is amended to read:

"53-1-203.  Powers and duties of department of corrections. (1) The department of corrections shall:

(a)  adopt rules necessary to carry out the purposes of 41-5-527 through 41-5-529, rules necessary for the siting, establishment, and expansion of prerelease centers, and rules for the admission, custody, transfer, and release of persons in department programs except as otherwise provided by law. However, rules adopted by the department may not amend or alter the statutory powers and duties of the state board of pardons and parole. However, rules adopted by the department may not amend or alter the statutory powers and duties of the state board of pardons and parole. The rules for the siting, establishment, and expansion of prerelease centers must state that the siting is subject to any existing conditions, covenants, restrictions of record, and zoning regulations. The rules must provide that a prerelease center may not be sited at any location without community support. The prerelease siting, establishment, and expansion must be subject to, and the rules must include, a reasonable mechanism for a determination of community support or objection to the siting of a prerelease center in the area determined to be impacted. The prerelease siting, establishment, and expansion rules must provide for a public hearing conducted pursuant to Title 2, chapter 3.

(b)  subject to the functions of the department of administration, lease or purchase lands for use by institutions correctional facilities and classify those lands to determine those that may be most profitably used for agricultural purposes, taking into consideration the needs of all institutions correctional facilities for the food products that can be grown or produced on the lands and the relative value of agricultural programs in the treatment or rehabilitation of the persons confined in the institutions correctional facilities;

(c)  contract with private, nonprofit Montana corporations to establish and maintain community-based prerelease centers for purposes of preparing inmates of the Montana a state prison who are approaching parole eligibility or discharge for release into the community, providing an alternative placement for offenders who have violated parole, and providing a sentencing option for felony offenders pursuant to 46-18-201. The centers shall provide a less restrictive environment than the prison while maintaining adequate security. The centers must be operated in coordination with other department correctional programs, including the supervised release program provided for in Title 46, chapter 23, part 4. This subsection does not affect the department's authority to operate and maintain community-based prerelease centers.

(d)  utilize the staff and services of other state agencies and units of the Montana university system, within their respective statutory functions, to carry out its functions under this title;

(e)  propose programs to the legislature to meet the projected long-range needs of institutions corrections, including programs and facilities for the diagnosis, treatment, care, and aftercare custody, supervision, treatment, and skill development of persons placed in institutions correctional facilities or programs;

(f)  encourage the establishment of programs at the local and institutional state level for the rehabilitation and education of adult felony offenders;

(g)  administer all state and federal funds allocated to the department for youth in need of supervision and delinquent youth, as defined in 41-5-103;

(h)  collect and disseminate information relating to youth in need of supervision and delinquent youth;

(i)  maintain adequate data on placements that it funds in order to keep the legislature properly informed of the specific information, by category, related to youth in need of supervision and delinquent youth in out-of-home care facilities;

(j)  provide funding for and place youth who are alleged or adjudicated to be delinquent or in need of supervision and who are referred or committed to the department;

(k)  administer youth correctional facilities;

(l)  provide supervision, care, and control of youth released from a state youth correctional facility; and

(m)  use to maximum efficiency the resources of state government in a coordinated effort to:

(i)  provide for children in need of temporary protection or correctional services; and

(ii) coordinate and apply the principles of modern institutional correctional administration to the institutions in facilities and programs administered by the department.

(2)  The department and a private, nonprofit Montana corporation may not enter into a contract under subsection (1)(c) for a period that exceeds 10 years. The provisions of 18-3-104 and 18-4-313 that limit the term of a contract do not apply to a contract authorized by subsection (1)(c). Prior to entering into a contract for a period of 10 years, the department shall submit the proposed contract to the legislative audit committee. The legislative audit division shall review the contract and make recommendations or comments to the legislative audit committee. The committee may make recommendations or comments to the department. The department shall respond to the committee, accepting or rejecting the committee recommendations or comments prior to entering into the contract.

(3)  The department of corrections may enter into contracts with nonprofit corporations or associations or private organizations to provide substitute care for youth in need of supervision and delinquent youth in youth care facilities."



Section 6.  Section 53-30-302, MCA, is amended to read:

"53-30-302.  Purpose. It is the purpose of this part to:

(1)  encourage the development of community corrections facilities and programs by units of local government, tribal governments, and nongovernmental agencies;

(2)  reduce court commitments to the state penitentiary prisons through diversion of low-risk, nonviolent felony offenders determined appropriate by the community corrections board to community corrections facilities and programs;

(3) reduce the use of jail space for offenders who need a structured environment, treatment, counseling, and supervision but who may not require incarceration;

(4) provide a local facility for employed offenders so that they may maintain their employment under a structured environment and receive treatment, counseling, and supervision;

(3)(5)  provide a procedure by which units of local government, tribal governments, and nongovernmental agencies may provide corrections services to the sentencing courts; and

(4)(6)  include citizen participation in the policymaking and program planning related to community corrections facilities and programs through the formation of local community corrections boards."



Section 7.  Section 53-30-303, MCA, is amended to read:

"53-30-303.  Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:

(1)  "Community corrections board" means a community corrections board as provided in 53-30-312.

(2)  "Community corrections facility or program" means a community-based or community-oriented facility or program, other than a jail, that:

(a)  is established by a local or tribal government and operated by a unit of local government, a tribal government, or a nongovernmental agency; and

(b)  provides programs and services to aid offenders in:

(i)  obtaining and holding regular employment;

(ii) enrolling in and maintaining academic courses;

(iii) participating in vocational training programs;

(iv) utilizing the resources of the community to meet their personal and family needs;

(v)  obtaining the benefits of specialized treatment services that exist within the community; and

(vi) paying restitution or performing community restitution to crime victims.

(3)  "Crime of violence" means:

(a)  an offense in which a person uses or possesses and threatens the use of a deadly weapon during the commission or attempted commission of an offense, including felony assault, kidnapping, aggravated kidnapping, robbery, arson, burglary, aggravated burglary, escape, or intimidation;

(b)  an offense, other than an offense in which negligence is an element of the offense, in which the person causes serious bodily injury or death to a person other than the person committing the offense during the commission or attempted commission of an offense; or

(c)  any sexual offense in which the offender causes bodily injury to the victim or uses threat, intimidation, or force against the victim.

(4)(3)  "Department" means the department of corrections created in 2-15-2301.

(5)(4)  "Nongovernmental agency" means a person, private, nonprofit agency, corporation, association, labor organization, or other nongovernmental entity.

(6)  "Nonviolent felony offender" means a person who has committed a felony other than a crime of violence.

(7)(5)  "Offender" means a person who has entered a plea of guilty or has been convicted of a felony criminal offense. The term does not include a person who has committed a crime of violence.

(8)(6)  "Tribal government" means a federally recognized Indian tribe within the state of Montana.

(9)(7)  "Unit of local government" means a county, city, town, or city-county consolidated government."



Section 8.  Section 53-30-312, MCA, is amended to read:

"53-30-312.  Creation of community corrections boards -- membership -- appointment -- terms -- compensation. (1) A unit of local government, the governing bodies of two or more units of local government, or a tribal government may establish a community corrections board.

(2)  A community corrections board consists of nine three to seven members, must, when possible, be gender-balanced and have racial parity, and must be appointed as follows include:

(a)  one local law enforcement officer;

(b)  one county attorney;

(c)  one district court judge;

(d)(b)  one probation and parole officer; and

(e)  one local private employer or representative of the department of labor and industry;

(f)  one mental health professional;

(g)  one person representing local or tribal drug and alcohol treatment programs; and

(h)(c)  two members one member of the public.

(3)  Members of a community corrections board must be nominated by representatives of units of local government or a tribal government and appointed by the district court judges chief executive officer of the unit of local government or the tribal judges government in the judicial district in which community corrections facilities or programs are established.

(4)  Members of a community corrections board shall serve for a term of 4 years.

(5)  Members of a community corrections board shall serve without compensation except as otherwise decided by the units of local government or a tribal government."



Section 9.  Section 53-30-313, MCA, is amended to read:

"53-30-313.  Powers and duties of community corrections boards. (1) A community corrections board may establish and enforce standards for:

(a)  the operation of community corrections facilities and programs operated by the unit of local government or a tribal government served by the community corrections board; and

(b)  the conduct of offenders placed in local community corrections facilities and programs.

(2)  The community corrections board, together with the department and the judicial district, shall establish procedures for screening offenders who are to be placed in the community corrections facility or program. The screening must take into account the aptitude, attitude, and social and occupational skills of the offender and the risk of harm the offender may present to himself the offender and others.

(3)  A community corrections board may accept, reject, or reject after acceptance the placement of any offender in the community corrections facility or program. If an offender is rejected by the community corrections board after initial acceptance, the offender must be remanded to the custody of the sheriff of the county in which the facility or program is located must take custody of the offender. The community corrections board shall notify in writing the sentencing judge who, after considering the board's reasons for rejection, shall appropriately modify the sentencing order."



Section 10.  Section 53-30-314, MCA, is amended to read:

"53-30-314.  Community corrections facilities and programs operated by tribal governments. (1) A tribal government may establish, maintain, and operate a community corrections facility or program to serve the needs of offenders who are sentenced to the facility or program by a judge as provided in 53-30-321.

(2)  A tribal government may enter into an agreement with the department, pursuant to Title 18, chapter 11, part 1, for the purpose of providing community corrections facilities or programs for offenders. The agreement must provide for strict accountability procedures and practices for the conduct and supervision of offenders assigned or sentenced to a facility or program operated by a tribal government.

(3)(2)  A tribal government operating a community corrections facility or program may accept, reject, or reject after acceptance the placement of any offender in the facility or program pursuant to an agreement with a unit of local government, a nongovernmental agency, or a judicial district. If an offender is rejected by the tribal government after initial appearance and the offender is a court referral, the offender must be remanded to the custody of the sheriff of the county in which the facility or program is located must take custody of the offender. The tribal government shall notify in writing the sentencing judge who, after considering the tribal government's reasons for rejection, shall appropriately modify the sentencing order."



Section 11.  Section 53-30-315, MCA, is amended to read:

"53-30-315.  Community corrections facilities and programs operated by nongovernmental agencies. (1) Except as provided in subsection (2), a nongovernmental agency may establish, maintain, and operate a community corrections facility or program to serve the needs of offenders who are sentenced to the facility or program by a judge as provided in 53-30-321.

(2)  A nongovernmental agency may not establish a community corrections facility or program unless approved by the local community corrections board in a local government or tribal government that has established a community corrections board.

(3)  A nongovernmental agency may enter into a contract or agreement with the department for the purpose of providing community corrections facilities or programs for offenders. The contract or agreement must provide for strict accountability procedures and practices for the conduct and supervision of offenders assigned or sentenced to a facility or program operated by a nongovernmental agency.

(4)(3)  A nongovernmental agency operating a community corrections facility or program may accept, reject, or reject after acceptance the placement of any offender in the facility or program pursuant to a contract or agreement with a unit of local government, a tribal government, or a judicial district. If an offender is rejected by the nongovernmental agency after initial acceptance and the offender is a court referral, the offender must be remanded to the custody of the sheriff of the county in which the facility or program is located must take custody of the offender. The nongovernmental agency shall notify in writing the sentencing judge who, after considering the agency's reasons for rejection, shall appropriately modify the sentencing order."



Section 12.  Section 53-30-321, MCA, is amended to read:

"53-30-321.  Authority of judge to utilize community corrections facilities or programs -- procedure -- restrictions. (1) Subject to the restrictions contained in subsection (3) (2), a judge may order placement of a nonviolent felony an offender in a community corrections facility or program operated by a unit of local government, a tribal government, or a nongovernmental agency. If a judge orders placement of an offender in a community corrections facility or program, the judge shall indicate in the sentencing order that the offender would have been sentenced to prison if the community corrections facility or program had not been available.

(2)  Placement of an offender in a community corrections facility or program may be ordered only if:

(a)  the community corrections facility or program is operated by a unit of local government, a tribal government, or a nongovernmental agency that has entered into a contract or agreement with the department to provide community corrections services for offenders; and

(b)  funding for the placement is available.

(3)(2)  A judge may not order placement of an offender in a residential community corrections facility or program for a period exceeding 1 year. After completing the residential community corrections portion of his a sentence, an offender shall serve the remainder of his the sentence under normal probation supervision, if applicable.

(4)(3)  An offender is not eligible for parole while serving a sentence in a community corrections facility or program.

(5)(4)  The probation and parole officers for the judicial district shall include in their presentence report to the sentencing judge recommendations for utilization of a community correctional facility or program that has been approved for use by the judicial district."



Section 13.  Section 53-30-322, MCA, is amended to read:

"53-30-322.  Powers and responsibilities of department. -- rulemaking authority. The department shall may:

(1)  with the active and full participation of the upon the request of a local community corrections board, establish minimum standards for the operation provide assistance in the planning of community corrections facilities and programs operated by a unit of local government, a tribal government, or a nongovernmental agency that has entered into a contract or agreement with the department to provide services for offenders; and

(2)  review and evaluate all community corrections facilities and programs established under this part, subject to the requirements established in section 14, Chapter 554, Laws of 1991 contract with a community corrections facility or program for the provision of services for offenders under the custody of the department. The contract must address facility or program review and evaluation, accounting and reporting standards, and reimbursement of the facility or program;.

(3)  prescribe accounting and reporting standards for all units of local government, tribal governments, and nongovernmental agencies that have entered into a contract or agreement with the department;

(4)  reimburse units of local government, tribal governments, or nongovernmental agencies for community correctional services at a rate to be negotiated by the department;

(5)  adopt rules necessary to carry out the provisions of this part."



Section 14.  Section 53-30-326, MCA, is amended to read:

"53-30-326.  Escape from custody. An offender is guilty of escape from official detention and shall be punished as provided in 45-7-306 if, without proper authorization, he the offender:

(1)  fails to remain within the extended limits of his the offender's confinement or fails to return within the time specified to a community corrections facility or program to which he the offender has been assigned, sentenced, or transferred; or

(2)  leaves his the offender's place of employment or neglects or fails to return to the community corrections facility or program after being specifically ordered to do so."



Section 15.  Repealer. Sections 46-23-401, 46-23-405, 46-23-411, 46-23-412, 46-23-421, 46-23-422, 46-23-426, 53-30-324, and 53-30-325, MCA, are repealed.



Section 16. Coordination instruction.  If Senate Bill No. 109 and [this act] are both passed and approved, then the amended language in 53-1-203(1)(e), (f), and (m)(ii) in Senate Bill No. 109, reference bill as amended, is void.



Section 17. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

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