Florida Senate - 2012 SB 426 By Senator Smith 29-00439-12 2012426__ 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 and commission to adopt rules; creating 59 the Restorative Justice Pilot Program; requiring the 60 Department of Corrections to develop a pilot program 61 patterned after the juvenile justice program offered 62 by Neighborhood Restorative Justice Centers; requiring 63 that inmates who are eligible to participate in the 64 Elderly Rehabilitated Inmate Supervision Program be 65 given priority for participating in the pilot program; 66 providing that the pilot program be developed after 67 consultation with specified persons; authorizing the 68 department to conduct the pilot program using 69 departmental employees or private agencies; requiring 70 the department to adopt rules; amending s. 947.141, 71 F.S.; conforming provisions to changes made by the 72 act; authorizing a law enforcement officer or 73 correctional probation officer to arrest an inmate 74 under certain circumstances who has been released 75 under the Elderly Rehabilitated Inmate Supervision 76 Program; 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 consecutive years and who are 60 years of age or 88 older. It is the Legislature’s intent that the provisions of 89 this act be applied to include inmates who have previously been 90 sentenced as well as those who will be sentenced in the future. 91 The Legislature intends to provide for victim input and the 92 enforcement of penalties for those who fail to comply with 93 supervision while outside a prison facility. The Legislature 94 also intends that a pilot program patterned after the program 95 offered by Neighborhood Restorative Justice Centers be 96 implemented and offered to inmates who are eligible for release 97 under the Elderly Rehabilitated Inmate Supervision Program. 98 Section 2. Section 947.148, Florida Statutes, is created to 99 read: 100 947.148 Elderly Rehabilitated Inmate Supervision Program.— 101 (1) This section may be cited as the “Elderly Rehabilitated 102 Inmate Supervision Program Act.” 103 (2) As used in this section, the term “program” means the 104 Elderly Rehabilitated Inmate Supervision Program. 105 (3) An inmate may petition the commission for supervised 106 release under the program if the inmate: 107 (a) Is 60 years of age or older; 108 (b) Has been convicted of a felony and has served at least 109 25 consecutive years of incarceration; 110 (c) Is not eligible for parole or conditional medical 111 release; 112 (d) Has not been sentenced for a capital felony; 113 (e) Is not serving a minimum mandatory sentence; and 114 (f) Has not received a disciplinary report within the 115 previous 6 months. 116 (4) Each petition filed on behalf of an inmate to 117 participate in the program must contain: 118 (a) A proposed release plan; 119 (b) Documentation of the inmate’s relevant medical history, 120 including current medical prognosis; 121 (c) The inmate’s prison experience and criminal history. 122 The criminal history must include any claim of innocence, the 123 degree to which the inmate accepts responsibility for his or her 124 acts leading to the conviction of the crime, and how the claim 125 of responsibility has affected the inmate’s feelings of remorse; 126 (d) Documentation of the inmate’s history of substance 127 abuse and mental health; 128 (e) Documentation of any disciplinary action taken against 129 the inmate while in prison; 130 (f) Documentation of the inmate’s participation in prison 131 work and other prison programs; and 132 (g) Documentation of the inmate’s renunciation of gang 133 affiliation. 134 (5) An inmate may not file a new petition within 1 year 135 after receiving notification of denial of his or her petition to 136 participate in the program. Any petition that is filed before 137 the 1-year period ends shall be returned to the inmate, along 138 with a notation indicating the date that the petition may be 139 refiled. 140 (6) All matters relating to the granting, denying, or 141 revoking of an inmate’s supervised release in the program shall 142 be decided in a meeting at which the public may be present. A 143 victim of the crime committed by the inmate, a victim’s parent 144 or guardian if the victim was a minor, a lawful representative 145 of the victim or of the victim’s parent or guardian if the 146 victim was a minor, or a homicide victim’s next of kin may make 147 an oral statement or submit a written statement regarding his or 148 her views as to the granting, denying, or revoking of 149 supervision. A person who is not a member or employee of the 150 commission, the victim of the crime committed by the inmate, the 151 victim’s parent or guardian if the victim was a minor, a lawful 152 representative of the victim or of the victim’s parent or 153 guardian if the victim was a minor, or a homicide victim’s next 154 of kin may participate in deliberations concerning the granting 155 and revoking of an inmate’s supervised release in the program 156 only upon the prior written approval of the chair of the 157 commission. The commission shall notify the victim, the victim’s 158 parent or guardian if the victim was a minor, a lawful 159 representative of the victim or of the victim’s parent or 160 guardian if the victim was a minor, or the victim’s next of kin 161 if the victim is deceased no later than 30 days after the 162 petition is received by the commission, no later than 30 days 163 before the commission’s meeting, and no later than 30 days after 164 the commission’s decision. 165 (7) The commission may approve an inmate for participation 166 in the program if the inmate demonstrates: 167 (a) Successful participation in programs designed to 168 restore the inmate as a useful and productive person in the 169 community upon release; 170 (b) Genuine reform and changed behavior over a period of 171 years; 172 (c) Remorse for actions that have caused pain and suffering 173 to the victims of his or her offenses; and 174 (d) A renunciation of criminal activity and gang 175 affiliation if the inmate was a member of a gang. 176 (8) In considering eligibility for participation in the 177 program, the commission shall review the inmate’s: 178 (a) Entire criminal history and record; 179 (b) Complete medical history, including history of 180 substance abuse, mental health, and current medical prognosis; 181 (c) Prison disciplinary record; 182 (d) Work record; 183 (e) Participation in prison programs; and 184 (f) Gang affiliation, if any. 185 186 The commission shall consider the inmate’s responsibility for 187 the acts leading to the conviction, including any prior and 188 continued statements of innocence and the inmate’s feelings of 189 remorse. 190 (9)(a) An examiner shall interview the inmate within 90 191 days after a petition is filed on behalf of the inmate. An 192 interview may be postponed for a period not to exceed 90 days. 193 Such postponement must be for good cause, which includes, but 194 need not be limited to, the need for the commission to obtain a 195 presentence or postsentence investigation report or a violation 196 report. The reason for postponement shall be noted in writing 197 and included in the official record. A postponement for good 198 cause may not result in an interview being conducted later than 199 90 days after the inmate’s initial scheduled interview. 200 (b) During the interview, the examiner shall explain the 201 program to the inmate and review the inmate’s institutional 202 conduct record, criminal history, medical history, work records, 203 participation in prison programs, gang affiliation, and release 204 plan for supervision under the program. 205 (c) Within 10 days after the interview, the examiner shall 206 recommend in writing to a panel of no fewer than two 207 commissioners appointed by the chair a release date for the 208 inmate. The commissioners are not bound by the examiner’s 209 recommended release date. 210 (10) An inmate may not be placed in the program merely as a 211 reward for good conduct or efficient performance of duties 212 assigned in prison. An inmate may not be placed in the program 213 unless the commission finds that there is reasonable probability 214 that, if the inmate is placed in the program, he or she will 215 live and conduct himself or herself as a respectable and law 216 abiding person and that the inmate’s release will be compatible 217 with his or her own welfare and the welfare of society. 218 (11) When the commission has accepted the petition, 219 approved the proposed release plan, and determined that the 220 inmate is eligible for the program, a panel of no fewer than two 221 commissioners shall establish the terms and conditions of the 222 supervision. When granting supervised release under the program, 223 the commission shall require the inmate to participate in 10 224 hours of community service for each year served in prison, 225 require that the inmate be subject to electronic monitoring for 226 at least 1 year, and require that reparation or restitution be 227 paid to the victim for the damage or loss caused by the offense 228 for which the inmate was imprisoned. The commission may elect 229 not to impose any or all of the conditions if it finds reasons 230 that it should not do so. If the commission does not order 231 restitution or orders only partial restitution, the commission 232 must state on the record the reasons for its decision. The 233 amount of such reparation or restitution shall be determined by 234 the commission. 235 (12) The commission may impose any special conditions it 236 considers warranted from its review of the release plan and 237 inmate’s record, including, but not limited to, a requirement 238 that the inmate: 239 (a) Pay any debt due and owing to the state under s. 960.17 240 or pay attorney fees and costs that are owed to the state under 241 s. 938.29; 242 (b) Not leave the state or a specified physical area within 243 the state without the consent of the commission; 244 (c) Not associate with persons engaged in criminal 245 activity; and 246 (d) Carry out the instructions of her or his supervising 247 correctional probation officer. 248 (13)(a) An inmate may request a review of the terms and 249 conditions of his or her supervised release under the program. A 250 panel of at least two commissioners appointed by the chair shall 251 consider the inmate’s request, render a written decision and the 252 reasons for the decision to continue or to modify the terms and 253 conditions of the program supervision, and inform the inmate of 254 the decision in writing within 30 days after the date of receipt 255 of the request for review. During any period of review of the 256 terms and conditions of supervision, the inmate shall be subject 257 to the authorized terms and conditions of supervision until such 258 time that a decision is made to continue or modify the terms and 259 conditions of supervision. 260 (b) The length of supervision shall be the remaining amount 261 of time the inmate has yet to serve, including calculations for 262 gain-time credit, as determined by the department. 263 (c) An inmate’s participation in the program is voluntary, 264 and the inmate must agree to abide by all conditions of release. 265 The commission, upon authorizing a supervision release date, 266 shall specify in writing the terms and conditions of the program 267 supervision and provide a certified copy of these terms and 268 conditions to the inmate. 269 (14)(a) At the time of sentencing, the trial court judge 270 may enter an order retaining jurisdiction over the offender for 271 review of a release order by the commission under this section. 272 This jurisdiction of the trial court judge is limited to the 273 first one-third of the maximum sentence imposed. When a person 274 is convicted of two or more felonies and concurrent sentences 275 are imposed, the jurisdiction of the trial court applies to the 276 first one-third of the maximum sentence imposed for the most 277 severe felony for which the person was convicted. When any 278 person is convicted of two or more felonies and consecutive 279 sentences are imposed, the jurisdiction of the trial court judge 280 applies to one-third of the total consecutive sentences imposed. 281 (b) In retaining jurisdiction for purposes of this 282 subsection, the trial court must state the justification with 283 individual particularity, and such justification shall be made a 284 part of the court record. A copy of the justification and the 285 uniform commitment form issued by the court pursuant to s. 286 944.17 shall be delivered to the department. 287 (c) Gain-time as provided for by law shall accrue, except 288 that an offender over whom the trial court has retained 289 jurisdiction as provided in this subsection may not be released 290 during the first one-third of her or his sentence by reason of 291 gain-time. 292 (d) In such a case of retained jurisdiction, the 293 commission, within 30 days after the entry of its release order, 294 shall send notice of its release order to the original 295 sentencing judge and to the appropriate state attorney. The 296 release order shall be made contingent upon entry of an order by 297 the appropriate circuit judge relinquishing jurisdiction as 298 provided for in paragraph (e). If the original sentencing judge 299 is no longer serving, notice shall be sent to the chief judge of 300 the circuit in which the offender was sentenced. The chief judge 301 may designate any circuit judge within the circuit to act in the 302 place of the original sentencing judge. 303 (e) The original sentencing judge or her or his replacement 304 shall notify the commission within 10 days after receipt of the 305 notice provided for in paragraph (d) as to whether the court 306 desires to retain jurisdiction. If the original sentencing judge 307 or her or his replacement does not so notify the commission 308 within the 10-day period or notifies the commission that the 309 court does not desire to retain jurisdiction, the commission may 310 dispose of the matter as it sees fit. 311 (f) Upon receipt of notice of intent to retain jurisdiction 312 from the original sentencing judge or her or his replacement, 313 the commission shall, within 10 days, forward to the court its 314 release order, the examiner’s report and recommendation, and all 315 supporting information upon which its release order was based. 316 (g) Within 30 days after receipt of the items listed in 317 paragraph (f), the original sentencing judge or her or his 318 replacement shall review the order, findings, and evidence. If 319 the judge finds that the order of the commission is not based on 320 competent, substantial evidence or that participation in the 321 program is not in the best interest of the community or the 322 inmate, the court may vacate the release order. The judge or her 323 or his replacement shall notify the commission of the decision 324 of the court, and, if the release order is vacated, such 325 notification must contain the evidence relied on and the reasons 326 for denial. A copy of the notice shall be sent to the inmate. 327 (15) A correctional probation officer as defined in s. 328 943.10 shall supervise the inmate released under this program. 329 (16) The department and commission shall adopt rules to 330 administer this section. 331 Section 3. Restorative Justice Pilot Program.— 332 (1) As used in this section, the term “pilot program” means 333 the Restorative Justice Pilot Program. 334 (2) The department shall develop the pilot program that is 335 patterned after the program offered by the Neighborhood 336 Restorative Justice Centers established under s. 985.155, 337 Florida Statutes. The pilot program shall be implemented at one 338 prison for women and at two prisons for men. The portion of the 339 pilot program which includes classes on the effect that crime 340 has on victims shall be voluntary. Inmates who are eligible to 341 participate in the Elderly Rehabilitated Inmate Supervision 342 Program shall be given priority for participation in the pilot 343 program. 344 (3) The pilot program created under this section shall be 345 developed after identifying a need in the community for the 346 pilot program through consultation with representatives of the 347 public, members of the judiciary, law enforcement agencies, 348 state attorneys, and defense attorneys. 349 (4) The department may provide departmental staff to 350 conduct the pilot program or may contract with other public or 351 private agencies for the delivery of services related to the 352 pilot program. 353 (5) The department shall adopt rules to administer this 354 section. 355 Section 4. Section 947.141, Florida Statutes, is amended to 356 read: 357 947.141 Violations of conditional release, control release, 358
orconditional medical release, oraddiction-recovery 359 supervision, or elderly rehabilitated inmate supervision.— 360 (1) If a member of the commission or a duly authorized 361 representative of the commission has reasonable grounds to 362 believe that an offender who is on release supervision under s. 363 947.1405, s. 947.146, s. 947.148, s. 947.149, or s. 944.4731 has 364 violated the terms and conditions of the release in a material 365 respect, such member or representative may cause a warrant to be 366 issued for the arrest of the releasee; if the offender was found 367 to be a sexual predator, the warrant must be issued. 368 (2) Upon the arrest on a felony charge of an offender who 369 is on release supervision under s. 947.1405, s. 947.146, s. 370 947.148, s. 947.149, or s. 944.4731, the offender must be 371 detained without bond until the initial appearance of the 372 offender at which a judicial determination of probable cause is 373 made. If the trial court judge determines that there was no 374 probable cause for the arrest, the offender may be released. If 375 the trial court judge determines that there was probable cause 376 for the arrest, such determination also constitutes reasonable 377 grounds to believe that the offender violated the conditions of 378 the release. Within 24 hours after the trial court judge’s 379 finding of probable cause, the detention facility administrator 380 or designee shall notify the commission and the department of 381 the finding and transmit to each a facsimile copy of the 382 probable cause affidavit or the sworn offense report upon which 383 the trial court judge’s probable cause determination is based. 384 The offender must continue to be detained without bond for a 385 period not exceeding 72 hours excluding weekends and holidays 386 after the date of the probable cause determination, pending a 387 decision by the commission whether to issue a warrant charging 388 the offender with violation of the conditions of release. Upon 389 the issuance of the commission’s warrant, the offender must 390 continue to be held in custody pending a revocation hearing held 391 in accordance with this section. 392 (3) Within 45 days after notice to the Parole Commission of 393 the arrest of a releasee charged with a violation of the terms 394 and conditions of conditional release, control release, 395 conditional medical release, oraddiction-recovery supervision, 396 or elderly rehabilitated inmate supervision, the releasee must 397 be afforded a hearing conducted by a commissioner or a duly 398 authorized representative thereof. If the releasee elects to 399 proceed with a hearing, the releasee must be informed orally and 400 in writing of the following: 401 (a) The alleged violation with which the releasee is 402 charged. 403 (b) The releasee’s right to be represented by counsel. 404 (c) The releasee’s right to be heard in person. 405 (d) The releasee’s right to secure, present, and compel the 406 attendance of witnesses relevant to the proceeding. 407 (e) The releasee’s right to produce documents on the 408 releasee’s own behalf. 409 (f) The releasee’s right of access to all evidence used 410 against the releasee and to confront and cross-examine adverse 411 witnesses. 412 (g) The releasee’s right to waive the hearing. 413 (4) Within a reasonable time following the hearing, the 414 commissioner or the commissioner’s duly authorized 415 representative who conducted the hearing shall make findings of 416 fact in regard to the alleged violation. A panel of no fewer 417 than two commissioners shall enter an order determining whether 418 the charge of violation of conditional release, control release, 419 conditional medical release, oraddiction-recovery supervision, 420 or elderly rehabilitated inmate supervision has been sustained 421 based upon the findings of fact presented by the hearing 422 commissioner or authorized representative. By such order, the 423 panel may revoke conditional release, control release, 424 conditional medical release, oraddiction-recovery supervision, 425 or elderly rehabilitated inmate supervision and thereby return 426 the releasee to prison to serve the sentence imposed, reinstate 427 the original order granting the release, or enter such other 428 order as it considers proper. Effective for inmates whose 429 offenses were committed on or after July 1, 1995, the panel may 430 order the placement of a releasee, upon a finding of violation 431 pursuant to this subsection, into a local detention facility as 432 a condition of supervision. 433 (5) Effective for inmates whose offenses were committed on 434 or after July 1, 1995, notwithstanding the provisions of ss. 435 775.08, former 921.001, 921.002, 921.187, 921.188, 944.02, and 436 951.23, or any other law to the contrary, by such order as 437 provided in subsection (4), the panel, upon a finding of guilt, 438 may, as a condition of continued supervision, place the releasee 439 in a local detention facility for a period of incarceration not 440 to exceed 22 months. Prior to the expiration of the term of 441 incarceration, or upon recommendation of the chief correctional 442 officer of that county, the commission shall cause inquiry into 443 the inmate’s release plan and custody status in the detention 444 facility and consider whether to restore the inmate to 445 supervision, modify the conditions of supervision, or enter an 446 order of revocation, thereby causing the return of the inmate to 447 prison to serve the sentence imposed. The provisions of this 448 section do not prohibit the panel from entering such other order 449 or conducting any investigation that it deems proper. The 450 commission may only place a person in a local detention facility 451 pursuant to this section if there is a contractual agreement 452 between the chief correctional officer of that county and the 453 Department of Corrections. The agreement must provide for a per 454 diem reimbursement for each person placed under this section, 455 which is payable by the Department of Corrections for the 456 duration of the offender’s placement in the facility. This 457 section does not limit the commission’s ability to place a 458 person in a local detention facility for less than 1 year. 459 (6) Whenever a conditional release, control release, 460 conditional medical release, oraddiction-recovery supervision, 461 or elderly rehabilitated inmate supervision is revoked by a 462 panel of no fewer than two commissioners and the releasee is 463 ordered to be returned to prison, the releasee, by reason of the 464 misconduct, shall be deemed to have forfeited all gain-time or 465 commutation of time for good conduct, as provided for by law, 466 earned up to the date of release. However, if a conditional 467 medical release is revoked due to the improved medical or 468 physical condition of the releasee, the releasee shall not 469 forfeit gain-time accrued before the date of conditional medical 470 release. This subsection does not deprive the prisoner of the 471 right to gain-time or commutation of time for good conduct, as 472 provided by law, from the date of return to prison. 473 (7) If a law enforcement officer has probable cause to 474 believe that an offender who is on release supervision under s. 475 947.1405, s. 947.146, s. 947.148, s. 947.149, or s. 944.4731 has 476 violated the terms and conditions of his or her release by 477 committing a felony offense, the officer shall arrest the 478 offender without a warrant, and a warrant need not be issued in 479 the case. 480 (8) When a law enforcement officer or a correctional 481 probation officer has reasonable grounds to believe that an 482 offender who is supervised under the Elderly Rehabilitated 483 Inmate Supervision Program has violated the terms and conditions 484 of her or his supervision in a material respect, the officer may 485 arrest the offender without warrant and bring her or him before 486 one or more commissioners or a duly authorized representative of 487 the commission. Proceedings shall take place when a warrant has 488 been issued by a member of the commission or a duly authorized 489 representative of the commission. 490 Section 5. This act shall take effect July 1, 2012.