HB2154 - 531R

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

Section 1. Repeal

Section 31-229.02, Arizona Revised Statutes, is repealed.

Sec. 2. Section 31-411, Arizona Revised Statutes, is amended to read:

START_STATUTE31-411. Parole or discharge; conditions of parole; release under supervision of state department of corrections; notice of hearing; exceptions; drug testing costs

A. Any prisoner who has been certified as eligible for parole or absolute discharge from imprisonment pursuant to section 31‑412, subsection B or section 41‑1604.09 shall be given an opportunity to apply for release on parole or for an absolute discharge from imprisonment. The board of executive clemency shall not entertain any other form of application or petition for the release on parole or absolute discharge from imprisonment of any prisoner.

B. A prisoner who is eligible for parole or absolute discharge from imprisonment shall be given an opportunity to be heard either before a hearing officer designated by the board or the board itself, at the discretion of the board.

C. If the hearing is heard by a hearing officer, the hearing officer shall make a recommendation on application for parole or absolute discharge from imprisonment to the board within thirty days after the hearing date. Within thirty days after the date of the hearing officer's recommendations, the board shall review these recommendations and either approve, with or without conditions, or reject the prisoner's application for parole or absolute discharge from imprisonment. A prisoner who is eligible for parole or absolute discharge from imprisonment shall not be denied parole or absolute discharge from imprisonment without an opportunity to be heard before the board unless another form of release has been granted.

D. If parole is granted, the prisoner shall remain on parole unless the board revokes the parole or grants an absolute discharge from parole or until the prisoner reaches the individual earned release credit date pursuant to section 41‑1604.10. If the prisoner violates a condition of parole refuses to accept a graduated sanction pursuant to section 41‑1604.14 but has not committed an additional offense, the board may place the prisoner on electronic monitoring and order the defendant to participate in a community accountability pilot program pursuant to section 41‑1609.05. If the prisoner is still on parole on reaching the individual earned release credit date pursuant to section 41‑1604.10, the prisoner shall be terminated from parole but shall be subject to revocation under section 41‑1604.10. When the prisoner reaches the individual earned release credit date the prisoner's parole shall be terminated and the prisoner shall no longer be under the authority of the board.

E. During the period of time that the prisoner remains on supervised parole under subsection D of this section, the board shall require as a condition of parole that the prisoner pay a monthly supervision fee of not less than sixty‑five dollars unless, after determining the inability of the prisoner to pay the fee, the board requires payment of a lesser amount. The supervising parole officer shall monitor the collection of the fee. The supervising parole officer shall comply with the graduated sanctions policy adopted pursuant to section 41‑1604.14. The board may also impose any conditions of parole it deems appropriate in order to ensure that the best interests of the prisoner and the citizens of this state are served. These conditions may include:

1. Participation in a rehabilitation program or counseling.

2. Performance of community restitution work.

F. Seventy per cent percent of the monies collected pursuant to subsection E of this section shall be deposited, pursuant to sections 35‑146 and 35‑147, in the victim compensation and assistance fund established by section 41‑2407 and thirty per cent percent shall be deposited in the community corrections enhancement fund established by section 31‑418.

G. When parole or absolute discharge from imprisonment is denied, the board, within ten days, shall prepare and deliver to the director of the state department of corrections a written statement specifying the individualized reasons for the denial of parole or absolute discharge from imprisonment unless another form of release has been granted. The prisoner may view the written statement prepared by the board. Every prisoner, having served not less than one year, may be temporarily released according to the rules of the department one hundred eighty days before the expiration of the sentence or the earned release credit date, whichever first occurs, if the director finds that the release is in the best interest of the state. The releasee shall remain under the control of the state department of corrections until expiration of the term specified in the sentence. If the releasee violates any condition of release, the releasee may be returned to custody without further process.

H. When a commutation, absolute discharge from imprisonment or parole is to be considered, the board, on request and before holding a hearing on the commutation, absolute discharge from imprisonment or parole, shall notify the attorney general, the presiding judge of the superior court, the county attorney in the county in which the prisoner requesting a commutation, absolute discharge from imprisonment or parole was sentenced, and the victim of the offense for which the prisoner is incarcerated. The notice to the victim shall be mailed to the last known address. The notice shall state the name of the prisoner requesting the commutation, absolute discharge from imprisonment or parole and shall set the month of hearing on the application. The notice to the victim shall also inform the victim of the victim's right to be present and to submit a written report to the board expressing the victim's opinion concerning the release of the prisoner. No hearing concerning commutations, absolute discharge from imprisonment or parole shall be held until fifteen days after the date of giving the notice. On mailing the notice, the board shall file a hard copy of the notice as evidence that notification was sent.

I. The provisions of this section requiring notice to the officials named in subsection H of this section shall not apply:

1. When there is imminent danger of the death of the person convicted or imprisoned.

2. When the term of imprisonment of the applicant is within two hundred ten days of expiration.

J. In addition to any other fees, the board may require as a condition of parole that the prisoner pay the reasonable costs associated with the prisoner's participation in a drug testing program. The prisoner's costs shall not exceed the department's cost for the program. The monies collected pursuant to this subsection by the department may only be used to offset the costs of the drug testing program. END_STATUTE

Sec. 3. Section 31-412, Arizona Revised Statutes, is amended to read:

START_STATUTE31-412. Criteria for release on parole; release; custody of parolee; definition

A. If a prisoner is certified as eligible for parole pursuant to section 41‑1604.09 the board of executive clemency shall authorize the release of the applicant on parole if the applicant has reached the applicant's earliest parole eligibility date pursuant to section 41‑1604.09, subsection D and it appears to the board, in its sole discretion, that there is a substantial probability that the applicant will remain at liberty without violating the law and that the release is in the best interests of the state. The applicant shall thereupon be allowed to go on parole in the legal custody and under the control of the state department of corrections, until the board revokes the parole or grants an absolute discharge from parole or until the prisoner reaches the prisoner's individual earned release credit date pursuant to section 41‑1604.10. A prisoner who is on parole is subject to the graduated sanctions policy adopted by the director of the state department of corrections pursuant to section 41‑1604.14. When the prisoner reaches the prisoner's individual earned release credit date the prisoner's parole shall be terminated and the prisoner shall no longer be under the authority of the board but shall be subject to revocation under section 41‑1604.10.

B. Notwithstanding subsection A of this section, the director of the state department of corrections may certify as eligible for parole any prisoner, regardless of the classification of the prisoner, who has reached the prisoner's parole eligibility date pursuant to section 41‑1604.09, subsection D, unless an increased term has been imposed pursuant to section 41‑1604.09, subsection F, for the sole purpose of parole to the custody of any other jurisdiction to serve a term of imprisonment imposed by the other jurisdiction or to stand trial on criminal charges in the other jurisdiction or for the sole purpose of parole to the custody of the state department of corrections to serve any consecutive term imposed on the prisoner. On review of an application for parole pursuant to this subsection the board may authorize parole if, in its discretion, parole appears to be in the best interests of the state.

C. A prisoner who is otherwise eligible for parole, who is not on home arrest or work furlough and who is currently serving a sentence for a conviction of a serious offense or conspiracy to commit or attempt to commit a serious offense shall not be granted parole or absolute discharge from imprisonment except by one of the following votes:

1. A majority affirmative vote if four or more members consider the action.

2. A unanimous affirmative vote if three members consider the action.

3. A unanimous affirmative vote if two members consider the action pursuant to section 31‑401, subsection I and the chairman concurs after reviewing the information considered by the two members.

D. The board, as a condition of parole, shall order a prisoner to make any court‑ordered restitution.

E. Payment of restitution by the prisoner in accordance with subsection D of this section shall be made through the clerk of the superior court in the county in which the prisoner was sentenced for the offense for which the prisoner has been imprisoned in the same manner as restitution is paid as a condition of probation. The clerk of the superior court shall report to the board monthly whether or not restitution has been paid for that month by the prisoner.

F. The board shall not disclose the address of the victim or the victim's immediate family to any party without the written consent of the victim or the victim's family.

G. For the purposes of this section, "serious offense" includes any of the following:

1. A serious offense as defined in section 13-706, subsection F, paragraph 1, subdivision (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k).

2. A dangerous crime against children as defined in section 13‑705. The citation of section 13-705 is not a necessary element for a serious offense designation.

3. A conviction under a prior criminal code for any offense that possesses reasonably equivalent offense elements as the offense elements that are listed under section 13-705, subsection P, paragraph 1 or section 13‑706, subsection F, paragraph 1. END_STATUTE

Sec. 4. Section 41-1604.07, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1604.07. Earned release credits; forfeiture; restoration; released prisoner health care

A. Pursuant to rules adopted by the director, each prisoner who is in the eligible earned release credit class shall be allowed an earned release credit of one day for every six days served, including time served in county jails, except for those prisoners who are sentenced to serve the full term of imprisonment imposed by the court.

B. Release credits earned by a prisoner pursuant to subsection A of this section shall not reduce the term of imprisonment imposed by the court on the prisoner.

C. On reclassification of a prisoner resulting from the prisoner's failure to adhere to the rules of the department or failure to demonstrate a continual willingness to volunteer for or successfully participate in a work, educational, treatment or training program, the director may declare all release credits earned by the prisoner forfeited. In the discretion of the director, forfeited release credits may subsequently be restored. The director shall maintain an account of release credits earned by each prisoner.

D. A prisoner who has reached the prisoner's earned release date or sentence expiration date shall be released to begin the prisoner's term of community supervision imposed by the court or term of probation if the court waived community supervision pursuant to section 13‑603, except that the director may deny or delay the prisoner's release to community supervision or probation if the director believes the prisoner may be a sexually violent person as defined in section 36‑3701 until the screening process is complete and the director determines that the prisoner will not be referred to the county attorney pursuant to section 36‑3702. If the term of community supervision is waived, the state department of corrections shall provide reasonable notice to the probation department of the scheduled release of the prisoner from confinement by the department. If the court waives community supervision, the director shall issue the prisoner an absolute discharge on the prisoner's earned release credit date. A prisoner who is released on the earned release credit date to serve a term of probation is not under the control of the state department of corrections when community supervision has been waived and the state department of corrections is not required to provide parole services.

E. Notwithstanding subsection D of this section, a prisoner who fails to achieve functional literacy at an eighth grade literacy level shall not be released to begin the prisoner's term of community supervision until either the prisoner achieves an eighth grade functional literacy level as measured by standardized assessment testing or the prisoner serves the full term of imprisonment imposed by the court, whichever first occurs. This subsection does not apply to inmates who either:

1. Are unable to meet the functional literacy standard required by section 31‑229.02, subsection A due to a medical, developmental or learning disability as described in section 31‑229, subsection C.

2. Are classified as level five offenders.

3. Are foreign nationals.

4. Have less than six months of incarceration to serve on commitment to the department.

F. E. The department shall establish conditions of community supervision it deems appropriate in order to ensure that the best interests of the prisoner and the citizens of this state are served. As a condition of community supervision, the director:

1. May order a released prisoner to participate in an appropriate drug treatment or education program that is administered by a qualified agency, organization or individual approved by the department of health services and that provides treatment or education to persons who abuse controlled substances. Each person who is enrolled in a drug treatment or education program shall pay for the cost of participation in the program to the extent of the person's financial ability.

2. May order additional conditions, including participation in a rehabilitation program or counseling and performance of community restitution work.

3. May order a prisoner to apply for health care benefits through the Arizona health care cost containment system before being released. The state department of corrections shall enter into an enrollment suspense agreement with the Arizona health care cost containment system to reinstate benefits for prisoners who were sentenced to twelve months or less and who were previously enrolled in the Arizona health care cost containment system immediately before incarceration. For all other prisoners, the state department of corrections shall submit a prerelease application to the Arizona health care cost containment system at least thirty days before the prisoner's release date. The state department of corrections may coordinate with community‑based organizations or the department of economic security to assist prisoners in applying for enrollment in the Arizona health care cost containment system.

4. Shall impose, if the prisoner was convicted of a violation of sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age, a prohibition on residing within four hundred forty feet of a school or its accompanying grounds. For the purposes of this paragraph, "school" means any public, charter or private school where children attend classes.

G. F. The director may exchange a prisoner's health care information with the regional behavioral health authority or Arizona health care cost containment system justice system contact to facilitate the transition to care for released prisoners to access the full array of behavioral and physical health care services, including medication, counseling, case management, substance abuse treatment, and parenting skills and family reunification training. The director shall adopt policies and procedures that establish a care team to convene and discuss the services and resources, including housing and employment supports, that may be needed for the released prisoner to safely transition into the community. The care team shall be managed by the regional behavioral health authority or Arizona health care cost containment system contractor and may include the health care provider that is identified by and has a contract with the regional behavioral health authority or Arizona health care cost containment system contractor. The care team may also include representatives of nonprofit organizations that specialize in assisting prisoners who are transitioning back into the community and other organizations that link prisoners to additional services, including housing and employment.

H. G. If a prisoner who reaches the prisoner's earned release credit date refuses to sign and agree to abide by the conditions of supervision before release on community supervision, the prisoner shall not be released. When the prisoner reaches the sentence expiration date, the prisoner shall be released to begin the term of community supervision. If the prisoner refuses to sign and agree to abide by the conditions of release, the prisoner shall not be released on the sentence expiration date and shall serve the term of community supervision in prison. The department is required to supervise any prisoner on community supervision until the period of community supervision expires. The department may bring a prisoner who is in violation of the prisoner's terms and conditions before the board of executive clemency.

I. H. The director, pursuant to rules adopted by the department, shall authorize the release of any prisoner on the prisoner's earned release credit date to serve any consecutive term imposed on the prisoner. The release shall be for the sentence completed only. The prisoner shall remain under the custody and control of the department. The director may authorize the rescission of the release to any consecutive term if the prisoner fails to adhere to the rules of the department.

J. I. If a prisoner absconds from community supervision, any time spent before the prisoner is returned to custody is excluded in calculating the remaining period of community supervision.

K. J. A prisoner shall forfeit five days of the prisoner's earned release credits:

1. If the court finds or a disciplinary hearing held after a review by and recommendations from the attorney general's office determines that the prisoner does any of the following:

(a) Brings a claim without substantial justification.

(b) Unreasonably expands or delays a proceeding.

(d) Submits a claim that is intended solely to harass the party it is filed against.

2. For each time the prisoner tests positive for any prohibited drugs during the period of time the prisoner is incarcerated.

L. K. If the prisoner does not have five days of earned release credits, the prisoner shall forfeit the prisoner's existing earned release credits and shall be ineligible from accruing earned release credits until the number of earned release credits the prisoner would have otherwise accrued equals the difference between five days and the number of existing earned release credit days the prisoner forfeits pursuant to this section.

M. L. The director may authorize temporary release on inmate status of eligible inmates pursuant to rules adopted by the director within ninety days of any other authorized release date. The release authorization applies to any inmate who has been convicted of a drug offense, who has been determined to be eligible for participation in the transition program pursuant to section 31‑281 and who has agreed to participate in the transition program. END_STATUTE

Sec. 5. Title 41, chapter 11, article 1, Arizona Revised Statutes, is amended by adding section 41-1604.14, to read:

START_STATUTE41-1604.14. Graduated sanctions policy; rules; requirements; sanctions; annual report

A. The director shall develop and maintain, in consultation with the board of executive clemency, a graduated sanctions policy for prisoners who violate a condition of parole or community supervision. Parole and community supervision officers shall comply with the requirements of the graduated sanctions policy before submitting a petition to the board of executive clemency that alleges a violation of the prisoner's release conditions.

B. the director shall adopt rules for the graduated sanctions policy. At a minimum, the rules shall include all of the following:

1. a list of presumptive sanctions for the most common types of supervision violations, including the failure to report, the failure to pay fines, fees and victim restitution, the failure to participate in a required program or service, the failure to complete community restitution, a violation of an order of protection or injunction against harassment and the failure to refrain from the use of alcohol or controlled substances.

2. Before the proper sanction is determined, the following factors must be considered:

(a) The severity of the current violation.

(b) The prisoner's criminal history.

(d) The prisoner's assessed risk level.

(e) The extent to which graduated sanctions were imposed for previous violations.

3. A list of positive reinforcements that may be provided to a prisoner who complies with conditions of supervision.

4. An administrative process to review and approve or reject graduated sanctions that deviate from the list of presumptive sanctions.

5. An administrative process to review a graduated sanction that is contested by a supervised prisoner. An impartial department employee or representative who is selected, appointed and trained to hear cases regarding graduated sanctions shall conduct the review.

C. The director may enter into a contract with a county pursuant to section 31‑234 to permit a prisoner who is on parole or community supervision to be incarcerated in a county jail facility as a sanction for violating a condition of parole or community supervision.

D. Notwithstanding any other law, the director may:

1. Modify the conditions of parole or community supervision to impose a graduated sanction pursuant to this section.

2. Place a supervised prisoner who violates a condition of parole or community supervision in a county jail facility for a period of not more than five consecutive days and not more than thirty days in any one calendar year.

E. A parole or community supervision officer who proposes to impose a graduated sanction must issue a notice of the proposed sanction to the released prisoner. The notice must inform the released prisoner of the technical violation or violations alleged, the date or dates of the violation or violations and the proposed graduated sanction.

F. The imposition of a graduated sanction must comport with the policy and rules adopted by the director. On receipt of the notice, the supervised prisoner must immediately accept or object to the proposed sanction. If a supervised prisoner does not comply with a graduated sanction, the failure constitutes a violation of the supervised prisoner's parole or community supervision. If the supervised prisoner objects to the imposition of the graduated sanction, the prisoner is entitled to an administrative review that is conducted by the department within five days after the issuance of the notice. If the department affirms the proposed graduated sanction, the graduated sanction is effective immediately.

G. If the graduated sanction involves incarceration in a jail facility, the chief supervision officer must approve the incarceration, but the supervised prisoner may be taken into custody for up to four hours while approval is obtained. If the supervised prisoner is employed, the parole or community supervision officer, to the extent feasible, shall impose the sanction on weekend days or other days and times when the supervised prisoner is not working.

H. A parole or community supervision officer may not impose a graduated sanction that incarcerates a supervised prisoner in a jail facility for a period of more than five consecutive days or that extends the term of community supervision except pursuant to an order of the court or the board of executive clemency.

I. A parole or community supervision officer may not issue a notice of a graduated sanction for any violation of probation, parole or community supervision that could warrant an additional separate felony charge, except that a notice of a graduated sanction may be issued for a positive drug test.

J. On the successful completion of a graduated sanction, the director may not petition the board of executive clemency to revoke parole or the term of community supervision or impose additional sanctions for the same violation.

K. If a parole or community supervision officer imposes a graduated sanction, the officer shall:

1. Deliver a copy of the graduated sanction imposed to the supervised prisoner.

2. File a copy of the graduated sanction imposed with the department.

3. Note the date of delivery of the copy in the supervised prisoner's department file.

L. The chief supervision officer shall review incarceration sanctions that are recommended by parole and community supervision officers on a quarterly basis to assess any disparities that may exist among officers, evaluate the effectiveness of the sanction as measured by the supervised prisoner's subsequent conduct and monitor the impact on the department's number and type of revocations for violations of the conditions of parole or community supervision.

M. The department shall compile the reviews conducted pursuant to subsection L of this section and submit an annual report to the governor, the speaker of the house of representatives and the president of the senate and provide a copy of this report to the secretary of state. The report must include:

1. The statistics on the number of prisoners who are on supervision, the risk and needs assessment levels for the supervised prisoners, the demographic data and the length of time each prisoner was incarcerated before the prisoner's release.

2. The incentives that were awarded and the nature of the positive behavior that was rewarded.

3. the number of violations committed, the nature of the violations, the graduated sanctions employed, compliance with the imposed graduated sanctions and appeals.

4. The number of incidents of short term incarceration, the reason for that graduated sanction and the length of stay.

5. The number of revocations, the reasons for revocation and the amount of prison or jail time imposed.

6. Any cost savings that are generated by using graduated sanctions instead of a revocation to prison.

7. The number of new criminal charges against supervised prisoners, the case outcomes and the sentence lengths.

8. The outcomes of graduated sanctions, including whether supervised prisoners were successfully employed, made restitution payments and completed the program, the length of sobriety and the recidivism rates of supervised prisoners. END_STATUTE