Florida Senate - 2011                                     SB 144
       
       
       
       By Senator Smith
       
       
       
       
       29-00025-11                                            2011144__
    1                        A bill to be entitled                      
    2         An act relating to elderly inmates; providing
    3         legislative intent; creating s. 947.148, F.S.;
    4         providing a short title; creating the Elderly
    5         Rehabilitated Inmate Supervision Program to authorize
    6         the Parole Commission to approve the early release of
    7         certain elderly inmates; providing eligibility
    8         requirements for an inmate to participate in the
    9         program; requiring that the petition to participate in
   10         the program include certain documents; authorizing
   11         members of the public to be present at meetings of the
   12         commission held to determine an inmate’s eligibility
   13         for the program; authorizing a victim to make an oral
   14         statement or provide a written statement regarding the
   15         granting, denying, or revoking of an inmate’s
   16         supervised release under the program; requiring that
   17         the commission notify the victim or the victim’s
   18         family within a specified period regarding the filing
   19         of a petition, the date of the commission’s meeting,
   20         and the commission’s decision; authorizing the
   21         commission to approve an inmate’s participation in the
   22         program under certain conditions; providing
   23         eligibility requirements that the commission must
   24         review; requiring an examiner to interview within a
   25         specified time an inmate who has filed a petition for
   26         supervised release under the program; authorizing the
   27         postponement of the interview; requiring the examiner
   28         to explain and review certain criteria during the
   29         interview; requiring that the examiner recommend a
   30         release date for the inmate; providing certain
   31         conditions under which an inmate may not be released;
   32         requiring a panel of commissioners to establish terms
   33         and conditions of the supervised release under certain
   34         circumstances; requiring that the inmate participate
   35         in community service, submit to electronic monitoring,
   36         and provide restitution to victims as a condition for
   37         participating in the program; authorizing the
   38         commission to impose special conditions of
   39         supervision; authorizing the inmate to request a
   40         review of the terms and conditions of his or her
   41         program supervision; requiring a panel of
   42         commissioners to render a decision within a specified
   43         period regarding a request to modify or continue the
   44         supervised release; providing that participation in
   45         the program is voluntary; requiring the commission to
   46         specify in writing the terms and conditions of
   47         supervision and provide a certified copy to the
   48         inmate; authorizing the trial court judge to enter an
   49         order to retain jurisdiction over the offender;
   50         providing a limitation of the trial court’s
   51         jurisdiction; providing for gain-time to accrue;
   52         providing procedures if the trial court retains
   53         jurisdiction of the inmate; requiring a correctional
   54         probation officer to supervise an inmate who is
   55         released under the program; authorizing the Department
   56         of Corrections to conduct the program using
   57         departmental employees or private agencies; requiring
   58         the department to adopt rules; creating s. 947.1481,
   59         F.S.; creating the Restorative Justice Pilot Program;
   60         requiring the Department of Corrections to develop a
   61         pilot program patterned after the juvenile justice
   62         program offered by Neighborhood Restorative Justice
   63         Centers; requiring that inmates who are eligible to
   64         participate in the Elderly Rehabilitated Inmate
   65         Supervision Program be given priority for
   66         participating in the pilot program; providing that the
   67         pilot program be developed after consultation with
   68         specified persons; authorizing the department to
   69         conduct the pilot program using departmental employees
   70         or private agencies; requiring the department to adopt
   71         rules; amending s. 947.141, F.S.; conforming
   72         provisions to changes made by the act; authorizing a
   73         law enforcement officer to arrest an inmate under
   74         certain circumstances who has been released under the
   75         Elderly Rehabilitated Inmate Supervision Program;
   76         providing an effective date.
   77  
   78  Be It Enacted by the Legislature of the State of Florida:
   79  
   80         Section 1. The Legislature recognizes the need to provide a
   81  means for the release of older inmates who have demonstrated
   82  that they have been rehabilitated while incarcerated. It is the
   83  intent of the Legislature to address this issue by establishing
   84  a conditional extension of the limits of confinement by
   85  providing a mechanism for determining eligibility for early
   86  release and supervising inmates who have been incarcerated for
   87  at least 25 cumulative years and are 50 years of age or older.
   88  The Legislature intends to provide for victim input and the
   89  enforcement of penalties for those who fail to comply with
   90  supervision while outside a prison facility. The Legislature
   91  also intends that a pilot program patterned after the program
   92  offered by Neighborhood Restorative Justice Centers be
   93  implemented and offered to inmates who are eligible for release
   94  under the Elderly Rehabilitated Inmate Supervision Program.
   95         Section 2. Section 947.148, Florida Statutes, is created to
   96  read:
   97         947.148Elderly Rehabilitated Inmate Supervision Program.
   98         (1) This section may be cited as the “Elderly Rehabilitated
   99  Inmate Supervision Program Act.”
  100         (2)As used in this section, the term “program” means the
  101  Elderly Rehabilitated Inmate Supervision Program.
  102         (3)An inmate may petition the commission for supervised
  103  release under the program if the inmate:
  104         (a)Is 50 years of age or older;
  105         (b)Has been convicted of a felony and served at least 25
  106  consecutive years of incarceration;
  107         (c) Is not eligible for parole or conditional medical
  108  release;
  109         (d) Has not been sentenced for a capital felony;
  110         (e) Is not serving a minimum mandatory sentence; and
  111         (f)Has not received a disciplinary report within the
  112  previous 6 months.
  113         (4)Each petition filed on behalf of an inmate to
  114  participate in the program must contain:
  115         (a) A proposed release plan;
  116         (b)Documentation of the inmate’s relevant medical history,
  117  including current medical prognosis;
  118         (c)The inmate’s prison experience and criminal history.
  119  The criminal history must include any claim of innocence, the
  120  degree to which the inmate accepts responsibility for his or her
  121  acts leading to the conviction of the crime, and how the claim
  122  of responsibility has affected the inmate’s feelings of remorse;
  123         (d) Documentation of the inmate’s history of substance
  124  abuse and mental health;
  125         (e) Documentation of any disciplinary action taken against
  126  the inmate while in prison;
  127         (f) Documentation of the inmate’s participation in prison
  128  work and programs; and
  129         (g) Documentation of the inmate’s renunciation of gang
  130  affiliation.
  131         (5) An inmate may file only one petition to participate in
  132  the program.
  133         (6) All matters relating to the granting, denying, or
  134  revoking of an inmate’s supervised release in the program shall
  135  be decided in a meeting at which the public may be present. A
  136  victim of the crime committed by the inmate, a victim’s parent
  137  or guardian if the victim is a minor, a lawful representative of
  138  the victim or of the victim’s parent or guardian if the victim
  139  is a minor, or a homicide victim’s next of kin may make an oral
  140  statement or submit a written statement regarding his or her
  141  views as to the granting, denying, or revoking of supervision. A
  142  person who is not a member or employee of the commission, the
  143  victim of the crime committed by the inmate, the victim’s parent
  144  or guardian if the victim is a minor, a lawful representative of
  145  the victim or of the victim’s parent or guardian if the victim
  146  is a minor, or a homicide victim’s next of kin may participate
  147  in deliberations concerning the granting and revoking of an
  148  inmate’s supervised release in the program only upon the prior
  149  written approval of the chair of the commission. The commission
  150  shall notify the victim, the victim’s parent or guardian if the
  151  victim is a minor, a lawful representative of the victim or of
  152  the victim’s parent or guardian if the victim is a minor, or the
  153  victim’s next of kin if the victim is deceased no later than 30
  154  days after the petition is received by the commission, no later
  155  than 30 days before the commission’s meeting, and no later than
  156  30 days after the commission’s decision.
  157         (7)The commission may approve an inmate for participation
  158  in the program if the inmate demonstrates:
  159         (a)Successful participation in programs designed to
  160  restore the inmate as a useful and productive person in the
  161  community upon release;
  162         (b)Genuine reform and changed behavior over a period of
  163  years;
  164         (c)Remorse for actions that have caused pain and suffering
  165  to the victims of his or her offenses; and
  166         (d)A renunciation of criminal activity and gang
  167  affiliation if the inmate was a member of a gang.
  168         (8)In considering eligibility for participation in the
  169  program, the commission shall review the inmate’s:
  170         (a) Entire criminal history and record;
  171         (b) Complete medical history, including history of
  172  substance abuse, mental health, and current medical prognosis;
  173         (c) Prison disciplinary record;
  174         (d) Work record;
  175         (e) Program participation; and
  176         (f) Gang affiliation, if any.
  177  
  178  The commission shall consider the inmate’s responsibility for
  179  the acts leading to the conviction, including any prior and
  180  continued statements of innocence and the inmate’s feelings of
  181  remorse.
  182         (9)(a) An examiner shall interview the inmate within 90
  183  days after a petition is filed on behalf of the inmate. An
  184  interview may be postponed for a period not to exceed 90 days.
  185  Such postponement must be for good cause, which includes, but
  186  need not be limited to, the need for the commission to obtain a
  187  presentence or postsentence investigation report or a violation
  188  report. The reason for postponement shall be noted in writing
  189  and included in the official record. A postponement for good
  190  cause may not result in an interview being conducted later than
  191  90 days after the inmate’s initial scheduled interview.
  192         (b) During the interview, the examiner shall explain the
  193  program to the inmate and review the inmate’s institutional
  194  conduct record, criminal history, medical history, work records,
  195  program participation, gang affiliation, and satisfactory
  196  release plan for supervision under the program.
  197         (c) Within 10 days after the interview, the examiner shall
  198  recommend in writing to a panel of no fewer than two
  199  commissioners appointed by the chair a release date for the
  200  inmate. The commissioners are not bound by the examiner’s
  201  recommended release date.
  202         (10) An inmate may not be placed in the program merely as a
  203  reward for good conduct or efficient performance of duties
  204  assigned in prison. An inmate may not be placed in the program
  205  unless the commission finds that there is reasonable probability
  206  that, if the inmate is placed in the program, he or she will
  207  live and conduct himself or herself as a respectable and law
  208  abiding person and that the inmate’s release will be compatible
  209  with his or her own welfare and the welfare of society.
  210         (11) When the commission has accepted the petition,
  211  approved the proposed release plan, and determined that the
  212  inmate is eligible for the program, a panel of no fewer than two
  213  commissioners shall establish the terms and conditions of the
  214  supervision. When granting supervised release under the program,
  215  the commission shall require the inmate to participate in 10
  216  hours of community service for each year served in prison,
  217  require that the inmate be subject to electronic monitoring for
  218  at least 1 year, and require reparation or restitution be paid
  219  to the victim for the damage or loss caused by the offense for
  220  which the inmate was imprisoned, unless the commission finds
  221  reasons to the contrary. If the commission does not order
  222  restitution or orders only partial restitution, the commission
  223  must state on the record the reasons for its decision. The
  224  amount of such reparation or restitution shall be determined by
  225  the commission.
  226         (12) The commission may impose any special conditions it
  227  considers warranted from its review of the release plan and
  228  inmate’s record, including, but not limited to, a requirement
  229  that the inmate:
  230         (a) Pay any debt due and owing to the state under s. 960.17
  231  or pay attorney’s fees and costs that are owed to the state
  232  under s. 938.29;
  233         (b) Not leave the state or any definite physical area
  234  within the state without the consent of the commission;
  235         (c) Not associate with persons engaged in criminal
  236  activity; and
  237         (d) Carry out the instructions of her or his supervising
  238  correctional probation officer.
  239         (13)(a) An inmate may request a review of the terms and
  240  conditions of his or her supervised release under the program. A
  241  panel of at least two commissioners appointed by the chair shall
  242  consider the inmate’s request, render a written decision and the
  243  reasons for the decision to continue or to modify the terms and
  244  conditions of the program supervision, and inform the inmate of
  245  the decision in writing within 30 days after the date of receipt
  246  of the request for review. During any period of review of the
  247  terms and conditions of supervision, the inmate shall be subject
  248  to the authorized terms and conditions of supervision until such
  249  time that a decision is made to continue or modify the terms and
  250  conditions of supervision.
  251         (b) The length of supervision shall be the remaining amount
  252  of time the inmate has yet to serve, including calculations for
  253  gain-time credit, as determined by the department.
  254         (c) An inmate’s participation in the program is voluntary,
  255  and the inmate must agree to abide by all conditions of release.
  256  The commission, upon authorizing a supervision release date,
  257  shall specify in writing the terms and conditions of the program
  258  supervision and provide a certified copy of these terms and
  259  conditions to the inmate.
  260         (14)(a) At the time of sentencing, the trial court judge
  261  may enter an order retaining jurisdiction over the offender for
  262  review of a release order by the commission under this section.
  263  This jurisdiction of the trial court judge is limited to the
  264  first one-third of the maximum sentence imposed. When a person
  265  is convicted of two or more felonies and concurrent sentences
  266  are imposed, the jurisdiction of the trial court applies to the
  267  first one-third of the maximum sentence imposed for the highest
  268  felony of which the person was convicted. When any person is
  269  convicted of two or more felonies and consecutive sentences are
  270  imposed, the jurisdiction of the trial court judge applies to
  271  one-third of the total consecutive sentences imposed.
  272         (b) In retaining jurisdiction for purposes of this
  273  subsection, the trial court must state the justification with
  274  individual particularity, and such justification shall be made a
  275  part of the court record. A copy of the justification and the
  276  uniform commitment form issued by the court pursuant to s.
  277  944.17 shall be delivered together to the department.
  278         (c) Gain-time as provided for by law shall accrue, except
  279  that an offender over whom the trial court has retained
  280  jurisdiction as provided in this subsection may not be released
  281  during the first one-third of her or his sentence by reason of
  282  gain-time.
  283         (d) In such a case of retained jurisdiction, the
  284  commission, within 30 days after the entry of its release order,
  285  shall send notice of its release order to the original
  286  sentencing judge and to the appropriate state attorney. The
  287  release order shall be made contingent upon entry of an order by
  288  the appropriate circuit judge relinquishing jurisdiction as
  289  provided for in paragraph (e). If the original sentencing judge
  290  is no longer in service, such notice shall be sent to the chief
  291  judge of the circuit in which the offender was sentenced. The
  292  chief judge may designate any circuit judge within the circuit
  293  to act in the place of the original sentencing judge.
  294         (e) The original sentencing judge or her or his replacement
  295  shall notify the commission within 10 days after receipt of the
  296  notice provided for in paragraph (d) as to whether the court
  297  desires to retain jurisdiction. If the original sentencing judge
  298  or her or his replacement does not so notify the commission
  299  within the 10-day period or notifies the commission that the
  300  court does not desire to retain jurisdiction, the commission may
  301  dispose of the matter as it sees fit.
  302         (f) Upon receipt of notice of intent to retain jurisdiction
  303  from the original sentencing judge or her or his replacement,
  304  the commission shall, within 10 days, forward to the court its
  305  release order, the examiner’s report and recommendation, and all
  306  supporting information upon which its release order was based.
  307         (g) Within 30 days after receipt of the items listed in
  308  paragraph (f), the original sentencing judge or her or his
  309  replacement shall review the order, findings, and evidence. If
  310  the judge finds that the order of the commission is not based on
  311  competent, substantial evidence or that participation in the
  312  program is not in the best interest of the community or the
  313  inmate, the court may vacate the release order. The judge or her
  314  or his replacement shall notify the commission of the decision
  315  of the court, and, if the release order is vacated, such
  316  notification must contain the evidence relied on and the reasons
  317  for denial. A copy of the notice shall be sent to the inmate.
  318         (15) A correctional probation officer as defined in s.
  319  943.10 shall supervise the inmate released under this program.
  320         (16)The department may provide departmental staff to
  321  conduct the program created under this section or may contract
  322  with other public or private agencies for the delivery of
  323  services related to the program created under this section.
  324         (17)The department shall adopt rules to administer this
  325  section.
  326         Section 3. Section 947.1481, Florida Statutes, is created
  327  to read:
  328         947.1481Restorative Justice Pilot Program.—
  329         (1)As used in this section, the term “pilot program” means
  330  the Restorative Justice Pilot Program.
  331         (2)The department shall develop the pilot program that is
  332  patterned after the program offered by the Neighborhood
  333  Restorative Justice Centers established under s. 985.155. The
  334  pilot program shall be implemented at one maximum security
  335  prison for women and at two maximum security prisons for men.
  336  The portion of the pilot program which include classes on the
  337  effect that crime has on victims shall be made available on a
  338  voluntary basis. Inmates who are eligible to participate in the
  339  Elderly Rehabilitated Inmate Supervision Program shall be given
  340  priority for participation in the pilot program.
  341         (3)The pilot program created under this section shall be
  342  developed after identifying a need in the community for the
  343  pilot program through consultation with representatives of the
  344  public, members of the judiciary, law enforcement agencies,
  345  state attorneys, and defense attorneys.
  346         (4)The department may provide departmental staff to
  347  conduct the pilot program or may contract with other public or
  348  private agencies for the delivery of services related to the
  349  pilot program.
  350         (5)The department shall adopt rules to administer this
  351  section.
  352         Section 4. Section 947.141, Florida Statutes, is amended to
  353  read:
  354         947.141 Violations of conditional release, control release,
  355  or conditional medical release or addiction-recovery
  356  supervision.—
  357         (1) If a member of the commission or a duly authorized
  358  representative of the commission has reasonable grounds to
  359  believe that an offender who is on release supervision under s.
  360  947.1405, s. 947.146, s. 947.148, s. 947.149, or s. 944.4731 has
  361  violated the terms and conditions of the release in a material
  362  respect, such member or representative may cause a warrant to be
  363  issued for the arrest of the releasee; if the offender was found
  364  to be a sexual predator, the warrant must be issued.
  365         (2) Upon the arrest on a felony charge of an offender who
  366  is on release supervision under s. 947.1405, s. 947.146, s.
  367  947.148, s. 947.149, or s. 944.4731, the offender must be
  368  detained without bond until the initial appearance of the
  369  offender at which a judicial determination of probable cause is
  370  made. If the trial court judge determines that there was no
  371  probable cause for the arrest, the offender may be released. If
  372  the trial court judge determines that there was probable cause
  373  for the arrest, such determination also constitutes reasonable
  374  grounds to believe that the offender violated the conditions of
  375  the release. Within 24 hours after the trial court judge’s
  376  finding of probable cause, the detention facility administrator
  377  or designee shall notify the commission and the department of
  378  the finding and transmit to each a facsimile copy of the
  379  probable cause affidavit or the sworn offense report upon which
  380  the trial court judge’s probable cause determination is based.
  381  The offender must continue to be detained without bond for a
  382  period not exceeding 72 hours excluding weekends and holidays
  383  after the date of the probable cause determination, pending a
  384  decision by the commission whether to issue a warrant charging
  385  the offender with violation of the conditions of release. Upon
  386  the issuance of the commission’s warrant, the offender must
  387  continue to be held in custody pending a revocation hearing held
  388  in accordance with this section.
  389         (3) Within 45 days after notice to the Parole Commission of
  390  the arrest of a releasee charged with a violation of the terms
  391  and conditions of conditional release, control release,
  392  conditional medical release, or addiction-recovery supervision,
  393  the releasee must be afforded a hearing conducted by a
  394  commissioner or a duly authorized representative thereof. If the
  395  releasee elects to proceed with a hearing, the releasee must be
  396  informed orally and in writing of the following:
  397         (a) The alleged violation with which the releasee is
  398  charged.
  399         (b) The releasee’s right to be represented by counsel.
  400         (c) The releasee’s right to be heard in person.
  401         (d) The releasee’s right to secure, present, and compel the
  402  attendance of witnesses relevant to the proceeding.
  403         (e) The releasee’s right to produce documents on the
  404  releasee’s own behalf.
  405         (f) The releasee’s right of access to all evidence used
  406  against the releasee and to confront and cross-examine adverse
  407  witnesses.
  408         (g) The releasee’s right to waive the hearing.
  409         (4) Within a reasonable time following the hearing, the
  410  commissioner or the commissioner’s duly authorized
  411  representative who conducted the hearing shall make findings of
  412  fact in regard to the alleged violation. A panel of no fewer
  413  than two commissioners shall enter an order determining whether
  414  the charge of violation of conditional release, control release,
  415  conditional medical release, or addiction-recovery supervision
  416  has been sustained based upon the findings of fact presented by
  417  the hearing commissioner or authorized representative. By such
  418  order, the panel may revoke conditional release, control
  419  release, conditional medical release, or addiction-recovery
  420  supervision and thereby return the releasee to prison to serve
  421  the sentence imposed, reinstate the original order granting the
  422  release, or enter such other order as it considers proper.
  423  Effective for inmates whose offenses were committed on or after
  424  July 1, 1995, the panel may order the placement of a releasee,
  425  upon a finding of violation pursuant to this subsection, into a
  426  local detention facility as a condition of supervision.
  427         (5) Effective for inmates whose offenses were committed on
  428  or after July 1, 1995, notwithstanding the provisions of ss.
  429  775.08, former 921.001, 921.002, 921.187, 921.188, 944.02, and
  430  951.23, or any other law to the contrary, by such order as
  431  provided in subsection (4), the panel, upon a finding of guilt,
  432  may, as a condition of continued supervision, place the releasee
  433  in a local detention facility for a period of incarceration not
  434  to exceed 22 months. Prior to the expiration of the term of
  435  incarceration, or upon recommendation of the chief correctional
  436  officer of that county, the commission shall cause inquiry into
  437  the inmate’s release plan and custody status in the detention
  438  facility and consider whether to restore the inmate to
  439  supervision, modify the conditions of supervision, or enter an
  440  order of revocation, thereby causing the return of the inmate to
  441  prison to serve the sentence imposed. The provisions of this
  442  section do not prohibit the panel from entering such other order
  443  or conducting any investigation that it deems proper. The
  444  commission may only place a person in a local detention facility
  445  pursuant to this section if there is a contractual agreement
  446  between the chief correctional officer of that county and the
  447  Department of Corrections. The agreement must provide for a per
  448  diem reimbursement for each person placed under this section,
  449  which is payable by the Department of Corrections for the
  450  duration of the offender’s placement in the facility. This
  451  section does not limit the commission’s ability to place a
  452  person in a local detention facility for less than 1 year.
  453         (6) Whenever a conditional release, control release,
  454  conditional medical release, or addiction-recovery supervision
  455  is revoked by a panel of no fewer than two commissioners and the
  456  releasee is ordered to be returned to prison, the releasee, by
  457  reason of the misconduct, shall be deemed to have forfeited all
  458  gain-time or commutation of time for good conduct, as provided
  459  for by law, earned up to the date of release. However, if a
  460  conditional medical release is revoked due to the improved
  461  medical or physical condition of the releasee, the releasee
  462  shall not forfeit gain-time accrued before the date of
  463  conditional medical release. This subsection does not deprive
  464  the prisoner of the right to gain-time or commutation of time
  465  for good conduct, as provided by law, from the date of return to
  466  prison.
  467         (7) If a law enforcement officer has probable cause to
  468  believe that an offender who is on release supervision under s.
  469  947.1405, s. 947.146, s. 947.148, s. 947.149, or s. 944.4731 has
  470  violated the terms and conditions of his or her release by
  471  committing a felony offense, the officer shall arrest the
  472  offender without a warrant, and a warrant need not be issued in
  473  the case.
  474         (8) When a law enforcement officer has reasonable grounds
  475  to believe that a releasee has violated the terms and conditions
  476  of her or his supervision in a material respect under the
  477  Elderly Rehabilitated Inmate Supervision Program, the law
  478  enforcement officer may arrest the releasee without warrant and
  479  bring her or him before one or more commissioners or a duly
  480  authorized representative of the commission. Proceedings shall
  481  take place when a warrant has been issued by a member of the
  482  commission or a duly authorized representative of the
  483  commission.
  484         Section 5. This act shall take effect July 1, 2011.