2017 Montana Legislature

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SENATE BILL NO. 64

INTRODUCED BY C. WOLKEN

BY REQUEST OF THE COMMISSION ON SENTENCING

 

AN ACT GENERALLY REVISING LAWS RELATED TO THE BOARD OF PARDONS AND PAROLE; REVISING THE BOARD'S SIZE AND STRUCTURE; PROVIDING THAT THE BOARD IS A FULL-TIME BOARD; REVISING THE QUALIFICATIONS AND COMPENSATION OF BOARD MEMBERS; PROHIBITING A BOARD DESIGNEE FROM PERFORMING CERTAIN ACTS; REVISING THE LENGTH OF TIME THE BOARD MAY ORDER A PRISONER TO SERVE BEFORE ANOTHER HEARING OR REVIEW AFTER A PAROLE DENIAL; REVISING WHEN THE BOARD MAY ASSIGN CONDITIONS OF PAROLE; REVISING THE BOARD'S RULEMAKING AUTHORITY; REQUIRING THE DEPARTMENT OF CORRECTIONS AND THE BOARD TO COLLECT AND REPORT CERTAIN DATA; REVISING SUPERVISION AND REVOCATION PROCEDURES; REQUIRING THE BOARD TO REVIEW CERTAIN ADMINISTRATIVE RULES AND REPORT TO THE LAW AND JUSTICE INTERIM COMMITTEE; AMENDING SECTIONS 46-23-103, 46-23-104, 46-23-110, 46-23-201, 46-23-202, 46-23-208, 46-23-215, 46-23-218, 46-23-1001, 46-23-1003, 46-23-1021, 46-23-1023, 46-23-1024, AND 46-23-1025, MCA; REPEALING SECTION 2-15-2302, MCA; PROVIDING A TRANSITION SCHEDULE; AND PROVIDING EFFECTIVE DATES AND AN APPLICABILITY DATE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Montana board of pardons and parole -- composition and qualifications -- allocation -- quasi-judicial. (1) There is a board of pardons and parole consisting of five members.

     (2) Board members must possess at least one of the following qualifications:

     (a) a college degree in criminology, corrections, or a related social science;

     (b) at least 5 years of extensive work experience in corrections, the criminal justice system, or criminal law; or

     (c) a law degree.

     (3) Consideration should be given to balancing members' expertise or knowledge of:

     (a) American Indian culture;

     (b) serious mental illness and recovery from serious mental illness; and

     (c) victim awareness.

     (4) Board members shall serve staggered 6-year terms. The terms of board 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) The governor shall designate the presiding officer, as provided in 2-15-124. The governor may designate a different presiding officer at any time. If the governor designates a different presiding officer, the former presiding officer still serves as a board member unless removed for cause pursuant to 2-15-124(6).

     (6) The board is allocated to the department of corrections 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.

     (7) The board is designated as a quasi-judicial board for purposes of 2-15-124, except that board members must be compensated as provided in [section 2], the terms of board members must be staggered as provided in subsection (4), and the provisions of 2-15-124(1) do not apply to the board.

     (8) A favorable vote of a majority of the members of the board is required to implement a policy, procedure, or administrative rule. A favorable vote of the majority of the members of a hearing panel, as defined in 46-23-103, is required to make decisions regarding parole and executive clemency.

 

     Section 2.  Compensation of board members. (1) Board members must be paid a salary within the pay band, as defined in 2-18-101, determined by the department of administration as provided in subsection (2). Board members must receive longevity, expense reimbursement, leave, insurance, and other benefits provided to classified state employees under Title 2, chapter 18, and must receive pay adjustments consistent with those required by the legislature for state employees in 2-18-303 and 2-18-304.

     (2) The department of administration shall determine the appropriate occupation and pay band for the board members in the same manner that it determines the occupation and pay bands for employees in state government pursuant to Title 2, chapter 18.

     (3) The governor shall set the salary of the board members within the pay band established by the department of administration.

 

     Section 3.  Section 46-23-103, MCA, is amended to read:

     "46-23-103.  Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

     (1)  "Board" means the board of pardons and parole provided for in 2-15-2302 [section 1].

     (2)  "Department" means the department of corrections provided for in 2-15-2301.

     (3)  "Executive clemency" refers to the powers of the governor as provided by section 12 of Article VI of the constitution of Montana.

     (4)  "Hearing panel" means a panel appointed by the presiding officer of the board and made up of two or at least three board members appointed to conduct parole hearings, revocation hearings, rescission hearings, and administrative parole reviews and to make recommendations in matters of executive clemency.

     (5)  "Parole" means the release to the community of a prisoner by the decision of a hearing panel prior to the expiration of the prisoner's term, subject to conditions imposed by the hearing panel and subject to supervision of the department.

     (6)  "Victim" means a victim as defined in 46-18-243."

 

     Section 4.  Section 46-23-104, MCA, is amended to read:

     "46-23-104.  Board of pardons and parole. (1) The board of pardons and parole is responsible for executive clemency and parole as provided in this chapter.

     (2)  The board shall meet monthly at a place determined by the board and at other work full time and meet in hearing panels at the times and places that the board considers necessary.

     (3)  The principal office of the board is in Deer Lodge.

     (4)  The presiding officer of the board or a designee in consultation with the members shall appoint hearing panels and their presiding officers to conduct hearings and to issue final decisions concerning parole and recommendations concerning executive clemency and shall request out-of-state releasing authorities to conduct hearings pursuant to Article IV(6) of the Western Interstate Corrections Compact. The presiding officer of the board or a designee shall attempt to make hearing panel appointments in a manner that ensures equitable distribution of workload among board members. If a hearing panel consisting of two members is unable to reach a unanimous decision, the presiding officer of the board shall appoint a third member to consider all pertinent information and render a final decision concerning parole or a recommendation concerning executive clemency.

The hearing panels have the full authority and power of the board to order the denial, grant, or revocation of parole and to make recommendations in matters of executive clemency."

 

     Section 5.  Section 46-23-110, MCA, is amended to read:

     "46-23-110.  (Temporary) Records -- dissemination. (1) (a) The department and the board shall keep a record of the board's acts and decisions. Citizens may inspect and make copies of the public records of the board, as provided in 2-6-1003, 2-6-1006, 2-6-1007, and this section.

     (b)  The board shall video-record and audio-record all meetings held pursuant to 46-23-104(2) and all hearings conducted under part 2 or part 3 of this chapter or 46-23-1025. A recording may not personally identify the victim without the victim's written consent.

     (c)  Except as provided in subsection (2), the board shall make video recordings publicly available.

     (2)  Records and materials that are constitutionally protected from disclosure are not subject to disclosure under the provisions of subsection (1). Information that is constitutionally protected from disclosure is information in which there is an individual privacy or safety interest that clearly exceeds the merits of public disclosure.

     (3)  Upon a request to inspect or copy records of the board's acts and decisions, the board or a board staff member shall review the record requested and determine whether any document in the file or any content in a video recording is subject to a personal privacy or safety interest that clearly exceeds the merits of public disclosure.

     (4)  The board may assert the privacy or safety interest and may withhold a document or redact content of a video recording if the board determines that the demand for individual privacy clearly exceeds the merits of public disclosure or if the document's or recording's contents would compromise the safety, order, or security of a facility or the safety of facility personnel, a member of the public, or an inmate of the facility if disclosed.

     (5)  The board may not withhold from public scrutiny under subsections (2) through (4) any more information than is required to protect an individual privacy interest or a safety interest.

     (6)  The board may charge a reasonable fee for copying and inspecting records.

     (7)  The board may limit the time and place that the records may be inspected or copied. (Terminates June 30, 2019--sec. 2, Ch. 402, L. 2015.)

     46-23-110.  (Effective July 1, 2019) Records -- dissemination. (1) The department and the board shall keep a record of the board's acts and decisions. Citizens may inspect and make copies of the public records of the board, as provided in 2-6-1003, 2-6-1006, 2-6-1007, and this section.

     (2)  Records and materials that are constitutionally protected from disclosure are not subject to disclosure under the provisions of subsection (1). Information that is constitutionally protected from disclosure is information in which there is an individual privacy or safety interest that clearly exceeds the merits of public disclosure.

     (3)  Upon a request to inspect or copy records of the board's acts and decisions, the board or a board staff member shall review the file requested and determine whether any document in the file is subject to a personal privacy or safety interest that clearly exceeds the merits of public disclosure.

     (4)  The board may assert the privacy or safety interest and may withhold a document if the board determines that the demand for individual privacy clearly exceeds the merits of public disclosure or if the document's contents would compromise the safety, order, or security of a facility or the safety of facility personnel, a member of the public, or an inmate of the facility if disclosed.

     (5)  The board may not withhold from public scrutiny under subsections (2) through (4) any more information than is required to protect an individual privacy interest or a safety interest.

     (6)  The board may charge a reasonable fee for copying and inspecting records.

     (7)  The board may limit the time and place that the records may be inspected or copied."

 

     Section 6.  Section 46-23-201, MCA, is amended to read:

     "46-23-201.  Prisoners eligible for nonmedical parole -- rulemaking. (1) Subject to the restrictions contained in subsections (2) through (4) and the parole criteria in 46-23-208, the board may release on nonmedical parole by appropriate order any person who is:

     (a)  confined in a state prison;

     (b)  sentenced to the state prison and confined in a prerelease center;

     (c)  sentenced to prison as an adult pursuant to 41-5-206 and confined in a youth correctional facility;

     (d)  sentenced to be committed to the custody of the director of the department of public health and human services as provided in 46-14-312 and confined in the Montana state hospital, the Montana developmental center, or the Montana mental health nursing care center.

     (2)  Persons under sentence of death, persons sentenced to the department who have been placed by the department in a state prison temporarily for assessment or sanctioning, and persons serving sentences imposed under 46-18-202(2) or 46-18-219 may not be granted a nonmedical parole.

     (3)  A prisoner serving a time sentence may not be paroled under this section until the prisoner has served at least one-fourth of the prisoner's full term.

     (4)  A prisoner serving a life sentence may not be paroled under this section until the prisoner has served 30 years.

     (5)  If a hearing panel denies parole, it may order that the prisoner serve up to 6 years if the prisoner is confined for a sexual or violent offense, as defined in 46-23-502, or up to 1 year if the prisoner is confined for any other offense before a hearing panel conducts another hearing or review. The board shall adopt by administrative rule a process by which a prisoner may request an earlier hearing or review."

 

     Section 7.  Section 46-23-202, MCA, is amended to read:

     "46-23-202.  Initial parole hearing. Within the 2 months prior to a prisoner's official parole eligibility date or as soon after that date as possible, the department shall make the prisoner available for a hearing before a hearing panel. The hearing panel shall consider all available the prisoner's score under the parole guidelines and other case-specific and pertinent information regarding the prisoner, including the criteria in 46-23-208."

 

     Section 8.  Section 46-23-208, MCA, is amended to read:

     "46-23-208.  Nonmedical parole criteria -- information board may consider. (1) The board may release an eligible prisoner on nonmedical parole only when:

     (a)  there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community;

     (b)  release is in the best interests of society;

     (c)  the prisoner is able and willing to fulfill the obligations of a law-abiding citizen; and

     (d)  the prisoner does not require:

     (i)  continued correctional treatment that cannot be found in the community; or

     (ii) other programs available only in a correctional facility that will substantially enhance the prisoner's capability to lead a law-abiding life if released, including mental health therapy or vocational training.

     (2)  Parole may not be ordered as an award of clemency or a reduction of sentence or pardon.

     (3)  For a prisoner sentenced to be committed to the custody of the director of the department of public health and human services as provided in 46-14-312:

     (a)  the board may require as a condition of parole participation in a supervised mental health treatment program, if consistent with mental health services recommendations provided by a mental health professional, as that term is defined in 53-21-102, to ensure that the prisoner continues to treat the prisoner's mental disorder; and

     (b)  parole may be revoked if a prisoner fails to comply with the terms of a supervised mental health treatment program described in subsection (3)(a), in which case the prisoner must be recommitted to the custody of the director of the department of public health and human services pursuant to 46-14-312.

     (4)  In making its determination regarding nonmedical parole release, a hearing panel shall consider all available and pertinent information regarding the prisoner, including the following factors:

     (a)  the circumstances of the offense;

     (b)  the prisoner's social history and prior criminal record, including the nature and circumstances of the offense, date of offense, and frequency of previous offenses;

     (c)  the prisoner's conduct, employment, and attitude in prison, including particularly whether the prisoner has taken advantage of opportunities for treatment and whether the prisoner is clear of major disciplinary violations prior to the hearing;

     (d)  the reports of any physical, psychological, and mental evaluations that have been made;

     (e)  the prisoner's maturity, stability, sense of responsibility, and development of traits and behaviors that increase the likelihood the prisoner will conform the prisoner's behavior to the requirements of law;

     (f)  the adequacy of the prisoner's release plan;

     (g)  the prisoner's ability and readiness to assume obligations and undertake responsibilities;

     (h)  the prisoner's education and training;

     (i)  the prisoner's family status and whether the prisoner has relatives who display an interest or whether the prisoner has other close and constructive associations in the community;

     (j)  the prisoner's employment history and occupational skills and the stability of the prisoner's past employment;

     (k)  the type of residence, neighborhood, or community in which the prisoner plans to live;

     (l)  the prisoner's past use of chemicals, including alcohol, and past habitual or abusive use of chemicals;

     (m)  the prisoner's mental and physical makeup health needs;

     (n)  the prisoner's attitude toward law and authority;

     (o)  the prisoner's behavior and attitude during any previous experience of supervision and the recency of the supervision;

     (p)  written or oral statements from criminal justice authorities or any other interested person or the interested person's legal representative, including written or oral statements from a victim regarding the effects of the crime on the victim. A victim's statement may also include but is not limited to the circumstances surrounding the crime, the manner in which the crime was committed, and the victim's opinion as to whether the offender should be paroled.

     (q)  whether parole at this time would diminish the seriousness of the offense; and

     (r)  any and all other factors that the hearing panel determines to be relevant.

     (5)  A victim's statement may be kept confidential."

 

     Section 9.  Section 46-23-215, MCA, is amended to read:

     "46-23-215.  Conditions of parole. (1) A prisoner while on parole remains in the legal custody of the department but is subject to the orders of the board.

     (2)  (a) When a hearing panel issues an order for parole, the order must recite the conditions of parole. The hearing panel shall consider the parole guidelines governing conditions and the parole plan provided by the department before imposing conditions of parole to address the prisoner's criminogenic factors. If restitution was imposed as part of the sentence under 46-18-201, the order of parole must contain a condition to pay restitution to the victim. The prisoner may not be paroled until the prisoner provides a biological sample for purposes of Title 44, chapter 6, part 1, if the prisoner has not already done so under 44-6-103 and if the prisoner was convicted of, or was found under 41-5-1502 to have committed, a sexual offense or violent offense.

     (b)  The board may require the prisoner convicted of a sexual offense to refrain from direct or indirect contact with a victim of the crime or with an immediate family member of the victim. If a victim or an immediate family member requests that the prisoner not contact the victim or immediate family member, the board shall require the prisoner to refrain from contact with the victim or immediate family member. If the victim is a minor, a parent or guardian of the victim may make the request on the victim's behalf.

     (c)  An order for parole or any parole agreement signed by a prisoner may contain a clause waiving extradition.

     (3)  Whenever a hearing panel grants a parole to a prisoner on the condition that the prisoner obtain employment or secure suitable living arrangements or on any other condition that is difficult to fulfill while incarcerated, the hearing panel or the presiding officer of the board or a designee may grant the prisoner a furlough, not to exceed two consecutive 10-day periods, for purposes of fulfilling the condition. While on furlough, the prisoner is not on parole and is subject to official detention as defined in 45-7-306. The prisoner remains in the legal custody of the department and is subject to all other conditions ordered by the hearing panel or the presiding officer of the board or a designee.

     (4)  For the purposes of this section, "sexual offense" and "violent offense" have the meanings provided in 46-23-502."

 

     Section 10.  Section 46-23-218, MCA, is amended to read:

     "46-23-218.  Authority of board to adopt rules -- purpose for training -- data collection. (1) The board may adopt any rules that it considers proper or necessary with respect to the eligibility of prisoners for parole, the conduct of parole and parole revocation hearings, videoconference hearings, telephone conference administrative reviews, progress reviews, clemency proceedings, the conditions to be imposed upon parolees, the training of board members regarding American Indian culture and problems, and other matters pertinent to service on the board.

     (2)  The legislature finds that American Indians incarcerated in state prisons constitute a disproportionate percentage of the total inmate population when compared to the American Indian population percentage of the total state population. The training of board members regarding American Indian culture and problems is necessary in order for the board to deal appropriately with American Indian inmates appearing before the board.

     (3) In consultation with the department, the board shall adopt rules to establish:

     (a) parole guidelines to structure and guide parole release decisions and the imposition of release conditions. The guidelines must include, in decreasing order of importance, the prisoner's:

     (i) risk and needs levels, as determined by a validated risk and needs assessment;

     (ii) participation in risk-reducing programs and treatment;

     (iii) institutional behavior as reflected by disciplinary records; and

     (iv) offense severity.

     (b) a process by which a prisoner who has been denied parole and has more than 1 year before a scheduled hearing or review may request an earlier hearing or review; and

     (c) criteria for consideration of conditional discharges, which must include supervision compliance, residential stability, employment stability, engagement in treatment, and other factors indicative of adequate reentry stability.

     (4) The board and the department shall compile data to validate the parole guidelines after gathering recidivism results for the last 3 years and every 5 years thereafter. The board may adopt rules to govern the transition to use of parole guidelines. The data collection must start by April 2018.

     (5) The board shall annually assess and prioritize inservice training needs and arrange for training to strengthen knowledge and skills needed for case assessment, interviewing, and parole decisionmaking. Board members, parole analysts, and the hearings officers shall attend the training, as well as other board and department staff as needed."

 

     Section 11.  Section 46-23-1001, MCA, is amended to read:

     "46-23-1001.  Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:

     (1) "Absconding" means when an offender deliberately makes the offender's whereabouts unknown to a probation and parole officer or fails to report for the purposes of avoiding supervision, and reasonable efforts by the probation and parole officer to locate the offender have been unsuccessful.

     (1)(2)  "Board" means the board of pardons and parole provided for in 2-15-2302 [section 1].

     (3) "Compliance violation" means a violation of the conditions of supervision that is not:

     (a) a new criminal offense;

     (b) possession of a firearm in violation of a condition of probation or parole;

     (c) behavior by the offender or any person acting at the offender's direction that could be considered stalking, harassing, or threatening the victim of an offense or a member of the victim's immediate family or support network;

     (d) absconding; or

     (e) failure to enroll in or complete a required sex offender treatment program or a treatment program designed to treat violent offenders.

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

     (3)(5)  "Parole" means the release to the community of a prisoner by the decision of the board prior to the expiration of the prisoner's term, subject to conditions imposed by the board and subject to supervision of the department.

     (4)(6)  "Probation" means the release by the court without imprisonment, except as otherwise provided by law, of a defendant found guilty of a crime upon verdict or plea, subject to conditions imposed by the court and subject to the supervision of the department upon direction of the court."

 

     Section 12.  Section 46-23-1003, MCA, is amended to read:

     "46-23-1003.  Qualifications of probation and parole officers. (1) (a) Probation and parole officers must have at least a college degree and some formal training in behavioral sciences. Exceptions to this rule must be approved by the department. Related work experience in the areas listed in 2-15-2302(2)(c) subsection (1)(b) may be substituted for educational requirements at the rate of 1 year of experience for 9 months formal education if approved by the department. All present employees are exempt from this requirement but are encouraged to further their education at the earliest opportunity.

     (b) Work experience that may be substituted for the educational requirements in subsection (1)(a) includes experience in the areas of criminology, education, medicine, psychiatry, psychology, law, law enforcement, social work, sociology, psychiatric nursing, or guidance and counseling.

     (2)  Each probation and parole officer shall, through a source approved by the officer's employer, obtain 16 hours a year of training in subjects relating to the powers and duties of probation officers, at least 1 hour of which must include training on serious mental illness and recovery from serious mental illness. In addition, each probation and parole officer must receive training in accordance with standards adopted by the Montana public safety officer standards and training council established in 2-15-2029. The training must be at the Montana law enforcement academy unless the council finds that training at some other place is more appropriate."

 

     Section 13.  Section 46-23-1021, MCA, is amended to read:

     "46-23-1021.  Supervision on parole. (1) The department shall retain custody of all persons placed on parole and shall supervise the persons during their parole periods in accordance with the conditions set by the board.

     (2)  The department shall assign personnel to assist a person who is eligible for parole in preparing a parole plan. Department personnel shall make a report of their efforts and findings to the board prior to its consideration of the case of the eligible person.

     (3)  A copy of the conditions of parole must be signed by the parolee and given to the parolee and to the parolee's probation and parole officer, who shall report on the parolee's progress under the rules of the board.

     (4)  The probation and parole officer shall regularly advise and consult with the parolee, use effective communication strategies and other evidence-based practices, assist the parolee in adjusting to community life, and inform the parolee of the restoration of rights on successful completion of the sentence.

     (5)  The probation and parole officer shall keep records as the board or department may require. All records must be entered in the master file of the individual.

     (6)  (a) Upon recommendation of the probation and parole officer, the board may conditionally discharge a parolee from supervision before expiration of the parolee's sentence if the board determines that a conditional discharge from supervision is in the best interests of the parolee and society and will not present unreasonable risk of danger to the victim of the offense.

     (b)  Any of the achievements listed in 46-23-1027(2) must be considered a significant achievement by the board in deciding whether to grant a conditional discharge from supervision to a parolee.

     (c)  If the board discharges a parolee from supervision, the department is relieved of the obligation of supervising the parolee.

     (d)  For good cause, the board may return a parolee who was conditionally discharged to the status of a regular parolee.

     (e)  Subsection (6)(a) does not prohibit the board from revoking the parole, as provided in 46-23-1025, of a parolee who has been conditionally discharged from supervision.

     (f)  If the department certifies to the board that the workload of a district probation and parole office has exceeded the optimum workload for the district over the preceding 60 days, the board may not parole a prisoner to that district office unless it grants a conditional discharge to a parolee being supervised by that district office. The department may recommend parolees to the board for conditional discharge. The board may accept or reject the recommendations of the department. The department shall determine the optimum workload for each district probation and parole office."

 

     Section 14.  Section 46-23-1023, MCA, is amended to read:

     "46-23-1023.  Arrest of alleged parole violator. (1) At any time during release on parole or conditional release, the department may issue a warrant for the arrest of the parolee for violation of any of the conditions of release or a notice to appear to answer to a charge of violation. The notice must be served personally upon the parolee. The warrant must authorize all officers named in the warrant to return the parolee to the actual custody of the penal institution from which the parolee was released or to any other suitable detention facility designated by the department.

     (2)  Any probation and parole officer may arrest the parolee without a warrant or may deputize any other officer with power to arrest to do so by giving the officer oral authorization and within 12 hours delivering to the place of detention a written statement setting forth that the parolee has, in the judgment of the probation and parole officer, violated the conditions of the parolee's release. A written statement or oral authorization delivered with the parolee by the arresting officer to the official in charge of the institution from which the parolee was released or other place of detention is sufficient warrant for the detention of the parolee or conditional releasee if the probation and parole officer delivers a written statement within 12 hours of the arrest. The probation and parole officer, after making an arrest, shall present to the detaining authorities a similar statement of the circumstances of violation.

     (3)  Pending a hearing, as provided in 46-23-1024 and 46-23-1025, upon any charge of violation the parolee may, if circumstances warrant, be incarcerated in the institution.

     (4) A probation and parole officer may authorize a detention center to hold a parolee arrested under this section without bail for 72 hours. Within 72 hours following the parolee's detention, the probation and parole officer shall:

     (a) authorize the detention center to release the parolee;

     (b) initiate an intervention hearing; or

     (c) initiate the revocation process with an initial hearing."

 

     Section 15.  Section 46-23-1024, MCA, is amended to read:

     "46-23-1024.  Initial hearing after arrest. (1) After the arrest of the parolee, a an initial hearing must be held within a reasonable time, unless:

     (a)  the hearing is waived by the parolee; or

     (b)  the parolee has been charged in any court with a violation of the law; or

     (c) the probation and parole officer authorizes release or initiates an intervention hearing under subsection (4).

     (2)  The initial hearing is an onsite hearing but may be conducted via interactive videoconference and must be held to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. An independent officer, who need not be a judicial officer, shall preside over the hearing. The hearing must be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient within 5 days after arrest. The parolee must be given notice of the hearing and must be allowed to appear and speak in the parolee's own behalf and introduce relevant information to the hearings officer.

     (3)  The hearings officer shall make a summary of what transpires at the hearing in terms of the responses and position of the parolee and the substance of the documents or evidence given in support of parole revocation. Based on the information given to the hearings officer, the hearings officer shall determine whether there is probable cause and then determine whether to initiate an informal violation intervention hearing or to hold the parolee for the final decision of the board of pardons and parole as provided in 46-23-1025.

     (4) (a) In lieu of an initial hearing, a probation and parole officer who reasonably believes that a parolee has violated a condition of parole:

     (i) shall consult the department's incentives and interventions grid to determine an appropriate response; and

     (ii) may initiate an informal violation intervention hearing to gain the parolee's compliance with the conditions of parole without a formal revocation hearing.

     (b) A hearings officer designated by the department in conjunction with the board shall conduct the intervention hearing. The hearing may be conducted by interactive videoconference.

     (c) If the hearings officer determines by a preponderance of the evidence that a parolee has violated a condition of parole, the hearings officer shall consult the department's incentives and interventions grid and determine an appropriate response, including whether to:

     (i) order the parolee to serve or receive credit for serving up to 30 days of detention;

     (ii) recommend electronic monitoring or day reporting for up to a 90-day period;

     (iii) recommend placement in a community corrections facility or program for up to a 90-day period, including but not limited to placement in a prerelease center, sanction or hold bed, transitional living program, enhanced supervision program, relapse intervention bed, chemical dependency treatment, or 24/7 sobriety program; or

     (iv) direct the probation and parole officer to initiate a petition for revocation under 46-23-1025 if the violation is not a compliance violation or if it is a compliance violation and the appropriate responses under the department's incentives and interventions grid have been exhausted.

     (5) If the hearings officer recommends a response under subsection (4)(c)(ii), the officer shall notify the parolee of the recommendation and of the parolee's right to instead have the matter referred for a revocation hearing under 46-23-1025.

     (6) The provisions of Title 46, chapter 9, regarding release on bail of a person charged with a crime are not applicable to a parolee ordered to be held in a county detention center or other facility under this section.

     (7) All sanction and placement decisions must be documented in the offender's file."

 

     Section 16.  Section 46-23-1025, MCA, is amended to read:

     "46-23-1025.  Report to and action by board. (1) If the hearings officer determines that there is probable cause to believe that the prisoner has violated a condition of parole and directs the probation and parole officer to initiate a petition for revocation, the probation and parole officer shall immediately notify the board and shall submit in writing a report showing in what manner the prisoner has violated the conditions of release and describe the exhaustion of appropriate violation responses according to the department's incentives and interventions grid. This report must be accompanied by the findings of the hearings officer and placed in the offender's file.

     (2)  Upon receipt of a report, the board shall cause the prisoner to be promptly brought before a hearing panel for a hearing on the violation charged under rules that the board may adopt. The hearing may be conducted via interactive videoconference. If the violation is established, and the hearing panel finds that the violation is a compliance violation and that appropriate violation responses under the department's incentives and interventions grid have not been exhausted, the panel shall notify the department and refer the matter back to the hearings officer. If the violation is established and the hearing panel finds that the violation is a compliance violation and that appropriate violation responses under the department's incentives and interventions grid have been exhausted, the hearing panel may:

     (a) continue or revoke the parole without a change in conditions; or

     (b) continue the parole with modified or additional terms and conditions, which may include placement in:

     (i) a secure facility designated by the department for up to 9 months; or

     (ii) a community corrections facility or program designated by the department for up to 9 months, including but not limited to placement in a prerelease center, sanction or hold bed, transitional living program, enhanced supervision program, relapse intervention bed, chemical dependency treatment, or 24/7 sobriety program.

     (3) If the hearing panel finds that the violation is not a compliance violation, the panel may:

     (a) continue the parole without a change in conditions;

     (b) continue the parole with modified or additional terms and conditions, which may include placement as provided in subsection (2)(b) for up to 9 months; or

     (c) revoke the parole or may enter an order as it the hearing panel sees fit.

     (3)(4)  If the prisoner has violated a condition of release requiring the payment of restitution, the supervising parole officer shall notify the victim of the offense prior to the hearing required by 46-23-1024 and give the victim an opportunity to provide written or oral comment.

     (4)(5)  If the hearing panel finds that because of circumstances beyond the prisoner's control the prisoner is unable to make the required restitution payments, the hearing panel may not revoke the prisoner's parole for failure to pay restitution. The hearing panel may modify the time or method of making restitution and may extend the restitution schedule, but the schedule may not be extended beyond the period of state supervision over the prisoner.

     (5)(6)  If the hearing panel determines that the prisoner has violated the provisions of release, the hearing panel shall determine the amount of time, if any, that will be counted as time served while the prisoner was in violation of the provisions of release.

     (7) All decisions regarding sanctions, placements, or revocation must be documented in the offender's file."

 

     Section 17.  Board to review administrative rules -- report. (1) The board shall review its administrative rules that were adopted prior to [the effective date of this section], as required in 2-4-314.

     (2) The board shall update the law and justice interim committee during the 2017-2018 interim at times requested by the committee. The update must include the progress and results of the review and other information requested by the committee.

     (3) The law and justice interim committee may recommend to the 66th legislature those modifications, additions, or deletions of the board's rulemaking authority that the committee considers necessary.

 

     Section 18.  Repealer. The following section of the Montana Code Annotated is repealed:

2-15-2302.        Board of pardons and parole -- composition -- allocation -- quasi-judicial.

 

     Section 19.  Transition. (1) The seven-member board of pardons and parole, established in 2-15-2302, must become the five-member board of pardons and parole, established in [section 1], on [the effective date of this section].

     (2) Within 60 days of [the effective date of this section], the governor shall appoint five full-time board members who fulfill the requirements of [section 1] and according to the following schedule:

     (a) one member who shall serve a term that ends on the first day of January 2023 and until the member's successor is appointed;

     (b) two members who shall each serve a term that ends on the first day of January 2021 and until the member's successor is appointed; and

     (c) two members who shall each serve a term that ends on the first day of January 2019 and until the member's successor is appointed.

     (3) The governor may appoint an individual who previously served as a board member before [the effective date of this section] to a term provided for in subsection (2) or (4).

     (4) After the expiration of a term provided for in subsection (2), the governor shall appoint a person to serve a full 6-year term as provided in [section 1]. A member who previously served an abbreviated term may be reappointed for a full 6-year term.

     (5) As required by 2-15-124, all board members, including the members appointed pursuant to subsection (2) of this section, must be confirmed by the senate.

 

     Section 20.  Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title 2, chapter 15, part 23, and the provisions of Title 2, chapter 15, part 23, apply to [section 1].

     (2) [Section 2] is intended to be codified as an integral part of Title 46, chapter 23, part 1, and the provisions of Title 46, chapter 23, part 1, apply to [section 2].

 

     Section 21.  Coordination instruction. If both Senate Bill No. 294 and [this act] are passed and approved, then [section 2 of this act] must read as follows:

     "Section 2.  Compensation of board members. (1) Board members must be paid a salary within the pay band, as defined in 2-18-101, determined occupational wage range for the occupation designated by the department of administration as provided in subsection (2). Board members must receive longevity, expense reimbursement, leave, insurance, and other benefits provided to classified state employees under Title 2, chapter 18, and must receive pay adjustments consistent with those required by the legislature for state employees in 2-18-303 and 2-18-304.

     (2) The department of administration shall determine the appropriate occupation and pay band for the board members in the same manner that it determines the occupation and pay bands for employees in state government pursuant to Title 2, chapter 18.

     (3) The governor shall set the salary of the board members within the pay band occupational wage range established by the department of administration."

 

     Section 22.  Effective dates. (1) Except as provided in subsection (2), [this act] is effective July 1, 2017.

     (2) [Sections 10 and 17 and this section] are effective on passage and approval.     

 

     Section 23.  Applicability. [This act] applies to hearings conducted under Title 46, chapter 23, parts 2 or 3, and parole supervision and revocation hearings conducted under Title 46, chapter 23, part 10, on or after [the effective date of this section].

- END -

 


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