House Bill No. 135

Introduced By smith

By Request of the Board of Pardons and Parole



A Bill for an Act entitled: "An Act generally revising the laws governing the board of pardons and parole; revising the structure of the board by adding a second auxiliary member to the board and by providing for staggered terms for board members; revising the law relating to medical parole for prisoners; revising the board's authority to grant medical parole to prisoners who are physically incapacitated by eliminating the requirement that the prisoner must be highly unlikely to present a clear and present danger to public safety; amending sections 2-15-2302 and 46-23-210, MCA; and providing effective dates, a retroactive applicability date, and a termination date."



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



Section 1.  Section 2-15-2302, MCA, is amended to read:

"2-15-2302.   Board of pardons and parole -- composition -- allocation -- quasi-judicial. (1) There is a board of pardons and parole.

(2)  The board consists of three members and an two auxiliary member members, at least one of whom shall must have particular knowledge of Indian culture and problems. Members of the board, including the auxiliary member members, shall must possess academic training which that has qualified them for professional practice in a field such as criminology, education, psychiatry, psychology, law, social work, sociology, or guidance and counseling. Related work experience in the areas listed may be substituted for these educational requirements.

(3)  The An auxiliary member shall attend any meeting that a regular board member is unable to attend, and at that time, the auxiliary member has all the rights and responsibilities of a regular board member.

(4)  One member and the auxiliary member shall serve terms concurrent with the governor. The remaining members shall serve staggered 4-year terms. (a) In January 1997, or as soon thereafter as possible, the governor shall appoint:

(i) one member and one auxiliary member to terms that expire in January 2001;

(ii) one member to a term that expires in January 2002; and

(iii) one auxiliary member to a term that expires in January 2003.

(b) In January 1999, the governor shall appoint one member to a term that expires in January 2003.

(5) The terms of board members and auxiliary members run with the position, and if a vacancy occurs, the governor shall appoint a person to fill the unexpired portion of the term.

(5)(6)  The board is allocated to the department for administrative purposes only as prescribed in 2-15-121. However, the board may hire its own personnel, and 2-15-121(2)(d) does not apply.

(6)(7)  The board, including the auxiliary member members, is designated as a quasi-judicial board for purposes of 2-15-124, except board members must be compensated as provided by legislative appropriation and the terms of board members must be staggered as provided in subsection (4).

(8) The provisions of 2-15-124(2) do not apply to the board."



Section 2.  Section 2-15-2302, MCA, is amended to read:

"2-15-2302.   Board of pardons and parole -- composition -- allocation -- quasi-judicial. (1) There is a board of pardons and parole.

(2)  The board consists of three members and an two auxiliary member members, at least one of whom shall must have particular knowledge of Indian culture and problems. Members of the board, including the auxiliary member members, shall must possess academic training which that has qualified them for professional practice in a field such as criminology, education, psychiatry, psychology, law, social work, sociology, or guidance and counseling. Related work experience in the areas listed may be substituted for these educational requirements.

(3)  The An auxiliary member shall attend any meeting that a regular board member is unable to attend, and at that time, the auxiliary member has all the rights and responsibilities of a regular board member.

(4)  One member and the auxiliary member shall serve terms concurrent with the governor. The remaining members shall serve staggered 4-year terms. Board members and auxiliary members shall serve staggered 4-year terms. The governor shall appoint one member and one auxiliary member in January of the first year of the governor's term, one member in January of the second year of the governor's term, and one member and one auxiliary member in January of the third year of the governor's term.

(5) The terms of board members and auxiliary members run with the position and if a vacancy occurs, the governor shall appoint a person to fill the unexpired portion of the term.

(5)(6)  The board is allocated to the department for administrative purposes only as prescribed in 2-15-121. However, the board may hire its own personnel, and 2-15-121(2)(d) does not apply.

(6)(7)  The board, including the auxiliary member members, is designated as a quasi-judicial board for purposes of 2-15-124, except board members must be compensated as provided by legislative appropriation and the terms of board members must be staggered as provided in subsection (4).

(8) The provisions of 2-15-124(2) do not apply to the board."



Section 3.  Section 46-23-210, MCA, is amended to read:

"46-23-210.   Medical parole. (1) The board may release on medical parole by appropriate order a person placed in a correctional institution or program, except a person under sentence of death. To be eligible for a medical parole, a person must have an examination and written diagnosis by a physician licensed under Title 37 to practice medicine. The diagnosis must include:

(a)  a determination that the person suffers from an incapacitating physical condition, disease, or syndrome that renders the person highly unlikely to present a clear and present danger to public safety;

(b)  a description of the physical condition, disease, or syndrome and a detailed description of the person's physical incapacity; and

(c)  a prognosis addressing the likelihood of the person's recovery from the physical condition, disease, or syndrome and the extent of any potential recovery.

(2)  The diagnosis must be reviewed and accepted by the department before the board may consider granting a medical parole. THE BOARD MAY NOT GRANT A MEDICAL PAROLE UNLESS IT FINDS, AFTER CONSULTATION WITH THE PHYSICIAN THAT EXAMINED AND DIAGNOSED THE PERSON, THAT THE PERSON SUFFERS FROM AN INCAPACITATING PHYSICAL CONDITION, DISEASE, OR SYNDROME THAT RENDERS THE PERSON HIGHLY UNLIKELY TO PRESENT A CLEAR AND PRESENT DANGER TO PUBLIC SAFETY.

(3)  The board shall require as a condition of medical parole that the person agree to placement in an environment chosen by the department during the parole period, including but not limited to a hospital, nursing home, or family home. The board may require as a condition of parole that the person agree to periodic examinations and diagnoses at the person's expense. Reports of each examination and diagnosis must be submitted to the board and department by the examining physician. If either the board or department determines that the person's physical capacity has improved to the extent that the person is likely to pose a possible detriment to society, the board may revoke the parole and return the person to the custody of the department.

(4)  Medical parole may be requested by the board, the department, an incarcerated person, or an incarcerated person's parent, grandparent, child, or sibling by submitting the request in writing to the administrator of the correctional institution in which the person is incarcerated.

(5)  A grant or denial of medical parole does not affect the person's eligibility for nonmedical parole.

(6)  Sections 46-23-203, 46-23-205 through 46-23-207, and 46-23-215 through 46-23-218 apply to nonmedical parole."



NEW SECTION. Section 4.  Effective dates. (1) Except as provided in subsection (2), [this act] is effective on passage and approval.

(2) [Section 2] is effective January 1, 2001.



NEW SECTION. Section 5.  Retroactive applicability. The terms of members and auxiliary members appointed pursuant to [section 1] apply retroactively, within the meaning of 1-2-109, to January 1, 1997.



NEW SECTION. Section 6.  Termination. [Section 1] terminates December 31, 2000.

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