41-1604.09. Parole eligibility certification; classifications; appeal; recertification; applicability; definition

A. The director shall develop and maintain a parole eligibility classification system. Within the system, the director shall establish two classes of parole eligibility, class one and class two, to be given effect as provided for in this section, one class of parole noneligibility for dangerous psychiatric offenders and as many other classes of noneligibility as the director deems necessary or desirable. Each person committed to the state department of corrections shall be classified pursuant to the parole eligibility system established by the director.

B. The director shall establish rules pursuant to chapter 6 of this title for the classification and certification of prisoners for purposes of parole. Reclassification and certification shall be based on factors related to a prisoner's record while in the custody of the department, including work performance, compliance with all rules of the department, progress in any appropriate training or treatment programs and the performance of any assignments of confidence or trust. The director shall also establish rules governing the procedures and performance standards by which prisoners, reclassified to noneligibility classifications, may earn eligibility classification.  Prisoners may be reclassified only pursuant to the rules of the department. The director shall distribute a copy of all the rules to each person committed to the department.

C. The director shall maintain two classes for parole eligibility, class one and class two. Inclusion of an inmate in class one shall be determined by adherence to the rules of the department and continual willingness to volunteer for or successful participation in a work, educational, treatment or training program established by the department, except that a person sentenced pursuant to a statute that requires that a person serve a mandatory minimum term shall not be placed in class one until one-quarter of the mandatory minimum portion of the term is served and shall not be released until the mandatory minimum portion of the term is served. Inclusion of an inmate in class two shall be determined by adherence to the rules of the department.

D. The director shall certify as eligible for parole any prisoner classified within an eligible classification five months immediately before the prisoner's earliest parole eligibility. The inmate shall be required to remain in a parole eligible classification from the date of certification until the date of release on parole. If the inmate does not remain in a parole eligible classification until the date of release on parole, the entire parole process shall be rescinded. For the purposes of this subsection, the prisoner's earliest parole eligibility occurs when the prisoner has served one-half of the sentence imposed unless the prisoner is sentenced according to any provisions of law that prohibit the release on any basis until serving not less than two-thirds of the sentence imposed by the court, the sentence imposed by the court or any other mandatory minimum term, in which case the prisoner must have served the sentence required by law.

E. Every prisoner shall be entitled to a hearing before reclassification of the prisoner to a lower class. The hearing shall be before a person or persons designated by the director to hold the hearings. Reasonable notice and a written statement of the alleged violation of the rules shall be distributed to the prisoner at least five days before the hearing. A prisoner may request a review of a decision to reclassify the prisoner by delivering a written request to the director.

F. Notwithstanding subsection D of this section, placement of a prisoner in a noneligible parole class except placement in the noneligible parole class for dangerous psychiatric offenders shall result in an increase in the period of time the prisoner must serve before reaching the prisoner's earliest parole eligibility date. The increase shall equal the number of days occurring after placement in a noneligible parole class and before the prisoner is reclassified to a parole eligible class.

G. The classification of each prisoner shall be reviewed by the director not less than once every six months. Any prisoner who was certified as eligible for parole and denied parole and remains eligible for parole pursuant to subsection D of this section shall be recertified by the director not less than one nor more than four months after the hearing at which the prisoner was denied parole, except that the board of executive clemency in denying parole may prescribe that the prisoner shall not be recertified for a period of up to one year after the hearing. The board of executive clemency may adopt rules for the recertification process and may apply specific rules for the recertification process that applies to a prisoner who is serving a sentence for any of the following:

1. Death in violation of section 13-1104 or 13-1105.

2. Serious physical injury if the person was sentenced pursuant to section 13-704.

3. A dangerous crime against children as defined in section 13-705.

4. A felony offense in violation of title 13, chapter 14 or 35.1.

H. Immediately after the adoption of the rules required pursuant to this section, the director shall forward a certified copy of the rules to the legislature. The legislature may review and, by concurrent resolution, approve, disapprove or modify the rules, except that they shall be given full force and effect pending legislative review. If no concurrent resolution is passed by the legislature with respect to the rules within one year following receipt of a certified copy of the rules, they shall be deemed to have been approved by the legislature. If the legislature disapproves the rules or a section of them, the director shall immediately discontinue the use of any procedure, action or proceeding authorized or required by the rules or section of the rules.

I. This section applies to either of the following:

1. A person who commits a felony offense before January 1, 1994.

2. A person who is sentenced to life imprisonment and who is eligible for parole pursuant to section 13-716 or 13-718.

J. Pursuant to rules adopted by the director, on commitment to the department, each prisoner shall be placed in parole class one beginning on the prisoner's sentence begin date.

K. For the purposes of this section, "dangerous psychiatric offender" means an inmate who has been placed in a psychiatric unit for psychiatric evaluation and treatment and who has been determined to present a high risk of potential violence.