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Senate Engrossed House Bill
sexual offenses; children; sentencing (now: sentencing; sexual offenses; children) |
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State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session 2021
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HOUSE BILL 2889 |
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AN ACT
amending sections 13-705, 13-1307, 13-3212, 13-3409, 13-3552, 13-3560, 31-412, 41-1604.11 and 41-1604.13, Arizona Revised Statutes; relating to sexual offenses.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-705, Arizona Revised Statutes, is amended to read:
13-705. Dangerous crimes against children; sentences; definitions
A. A person who is at least eighteen years of age and who is convicted of a dangerous crime against children in the first degree involving commercial sexual exploitation of a minor or child sex trafficking and the person has previously been convicted of a dangerous crime against children in the first degree shall be sentenced to imprisonment in the custody of the state department of corrections for natural life. A person who is sentenced to natural life is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis for the remainder of the person's natural life.
A. b. A person who is at least eighteen years of age and who is convicted of a dangerous crime against children in the first degree involving sexual assault of a minor who is twelve years of age or younger or sexual conduct with a minor who is twelve years of age or younger shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the person has served thirty-five years or the sentence is commuted. This subsection does not apply to masturbatory contact.
B. c. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving attempted first degree murder of a minor who is under twelve years of age, second degree murder of a minor who is under twelve years of age, sexual assault of a minor who is under twelve years of age, sexual conduct with a minor who is under twelve years of age or manufacturing methamphetamine under circumstances that cause physical injury to a minor who is under twelve years of age may be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the person has served thirty-five years or the sentence is commuted. If a life sentence is not imposed pursuant to this subsection, the person shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
C. d. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving attempted first degree murder of a minor who is twelve, thirteen or fourteen years of age, second degree murder of a minor who is twelve, thirteen or fourteen years of age, sexual assault of a minor who is twelve, thirteen or fourteen years of age, taking a child for the purpose of prostitution, child sex trafficking, COMMERCIAL SEXUAL EXPLOITATION OF A MINOR, sexual conduct with a minor who is twelve, thirteen or fourteen years of age, continuous sexual abuse of a child or manufacturing methamphetamine under circumstances that cause physical injury to a minor who is twelve, thirteen or fourteen years of age or involving or using minors in drug offenses shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
23 years 30 years 37 years
D. e. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving aggravated assault, unlawful mutilation, molestation of a child, commercial sexual exploitation of a minor, sexual exploitation of a minor, aggravated luring a minor for sexual exploitation, child abuse or kidnapping shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
10 years 17 years 24 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
21 years 28 years 35 years
E. f. Except as otherwise provided in this section, if a person is at least eighteen years of age or has been tried as an adult and is convicted of a dangerous crime against children involving luring a minor for sexual exploitation, sexual extortion or unlawful age misrepresentation and is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
5 years 10 years 15 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
8 years 15 years 22 years
F. G. Except as otherwise provided in this section, if a person is at least eighteen years of age or has been tried as an adult and is convicted of a dangerous crime against children involving sexual abuse or bestiality under section 13-1411, subsection A, paragraph 2 and is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
2.5 years 5 years 7.5 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
8 years 15 years 22 years
G. H. The presumptive sentences prescribed in subsections B, C, and D and E of this section or subsections E and F and G of this section if the person has previously been convicted of a predicate felony may be increased or decreased pursuant to section 13-701, subsections C, D and E.
H. I. Except as provided in subsection F G of this section, a person who is sentenced for a dangerous crime against children in the first degree pursuant to this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted.
I. J. A person who is convicted of any dangerous crime against children in the first degree pursuant to subsection C, or D or E of this section and who has been previously convicted of two or more predicate felonies shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the person has served not fewer than thirty-five years or the sentence is commuted.
J. K. Notwithstanding chapter 10 of this title, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the second degree pursuant to subsection B, C, or D or E of this section is guilty of a class 3 felony and if the person is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
5 years 10 years 15 years
K. L. A person who is convicted of any dangerous crime against children in the second degree and who has been previously convicted of one or more predicate felonies is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.
L. M. Section 13-704, subsection J and section 13-707, subsection B apply to the determination of prior convictions.
M. N. The sentence imposed on a person by the court for a dangerous crime against children under subsection D G of this section involving child molestation or sexual abuse pursuant to subsection F of this section may be served concurrently with other sentences if the offense involved only one victim. The sentence imposed on a person for any other dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time, including child molestation and sexual abuse of the same victim.
N. O. In this section, for purposes of punishment an unborn child shall be treated like a minor who is under twelve years of age.
O. P. A dangerous crime against children is in the first degree if it is a completed offense and is in the second degree if it is a preparatory offense, except attempted first degree murder is a dangerous crime against children in the first degree.
P. Q. It is not a defense to a dangerous crime against children that the minor is a person posing as a minor or is otherwise fictitious if the defendant knew or had reason to know the purported minor was under fifteen years of age.
Q. R. For the purposes of this section:
1. "Dangerous crime against children" means any of the following that is committed against a minor who is under fifteen years of age:
(a) Second degree murder.
(b) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(c) Sexual assault.
(d) Molestation of a child.
(e) Sexual conduct with a minor.
(f) Commercial sexual exploitation of a minor.
(g) Sexual exploitation of a minor.
(h) Child abuse as prescribed in section 13-3623, subsection A, paragraph 1.
(i) Kidnapping.
(j) Sexual abuse.
(k) Taking a child for the purpose of prostitution as prescribed in section 13-3206.
(l) Child sex trafficking as prescribed in section 13-3212.
(m) Involving or using minors in drug offenses.
(n) Continuous sexual abuse of a child.
(o) Attempted first degree murder.
(p) Sex trafficking.
(q) Manufacturing methamphetamine under circumstances that cause physical injury to a minor.
(r) Bestiality as prescribed in section 13-1411, subsection A, paragraph 2.
(s) Luring a minor for sexual exploitation.
(t) Aggravated luring a minor for sexual exploitation.
(u) Unlawful age misrepresentation.
(v) Unlawful mutilation.
(w) Sexual extortion as prescribed in section 13-1428.
2. "Predicate felony" means any felony involving child abuse pursuant to section 13-3623, subsection A, paragraph 1, a sexual offense, conduct involving the intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, or a dangerous crime against children in the first or second degree.
Sec. 2. Section 13-1307, Arizona Revised Statutes, is amended to read:
13-1307. Sex trafficking; classification; definitions
A. It is unlawful for a person to knowingly traffic another person who is eighteen years of age or older with either of the following:
1. The intent to cause the other person to engage in any prostitution or sexually explicit performance by deception, force or coercion.
2. The knowledge that the other person will engage in any prostitution or sexually explicit performance by deception, coercion or force.
B. A person who violates this section is guilty of a class 2 felony and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted.
C. For the purposes of this section:
1. "Coercion" includes:
(a) Abusing or threatening to abuse the law or the legal system.
(b) Knowingly destroying, concealing, removing, confiscating, possessing or withholding another person's actual or purported passport or other immigration document, government issued identification document, government record or personal property.
(c) Extortion.
(d) Causing or threatening to cause financial harm to any person.
(e) Facilitating or controlling another person's access to a controlled substance.
2. "Force" includes causing or threatening to cause serious harm to another person or physically restraining or threatening to physically restrain another person.
3. "Sexually explicit performance" means a live or public act or show intended to arouse or satisfy the sexual desires or appeal to the prurient interest of patrons.
4. "Traffic" means to entice, recruit, harbor, provide, transport or otherwise obtain another person.
Sec. 3. Section 13-3212, Arizona Revised Statutes, is amended to read:
13-3212. Child sex trafficking; classification; increased punishment; definition
A. A person commits child sex trafficking by knowingly:
1. Causing any minor to engage in prostitution.
2. Using any minor for the purposes of prostitution.
3. Permitting a minor who is under the person's custody or control to engage in prostitution.
4. Receiving any benefit for or on account of procuring or placing a minor in any place or in the charge or custody of any person for the purpose of prostitution.
5. Receiving any benefit pursuant to an agreement to participate in the proceeds of prostitution of a minor.
6. Financing, managing, supervising, controlling or owning, either alone or in association with others, prostitution activity involving a minor.
7. Transporting or financing the transportation of any minor with the intent that the minor engage in prostitution.
8. Providing a means by which a minor engages in prostitution.
9. Enticing, recruiting, harboring, providing, transporting, making available to another or otherwise obtaining a minor with the intent to cause the minor to engage in prostitution or any sexually explicit performance.
10. Enticing, recruiting, harboring, providing, transporting, making available to another or otherwise obtaining a minor with the knowledge that the minor will engage in prostitution or any sexually explicit performance.
B. A person who is at least eighteen years of age commits child sex trafficking by knowingly:
1. Engaging in prostitution with a minor who is under fifteen years of age.
2. Engaging in prostitution with a minor who the person knows or should have known is fifteen, sixteen or seventeen years of age.
3. Engaging in prostitution with a minor who is fifteen, sixteen or seventeen years of age.
C. It is not a defense to a prosecution under subsection A and subsection B, paragraphs 1 and 2 of this section that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor.
D. Notwithstanding any other law, a sentence imposed on a person for any of the following a violation of this section shall be consecutive to any other sentence imposed on the person at any time:
1. A violation of subsection A or subsection B, paragraph 2 of this section involving a minor who is fifteen, sixteen or seventeen years of age.
2. A violation of subsection A, paragraph 9 or 10 of this section.
E. Child sex trafficking pursuant to subsection A of this section is a class 2 felony if the minor is under fifteen years of age and is punishable pursuant to section 13-705.
F. Child sex trafficking pursuant to subsection B, paragraph 1 of this section is a class 2 felony and is punishable pursuant to section 13-705.
G. except as provided in subsection H of this section, if the minor is fifteen, sixteen or seventeen years of age, child sex trafficking pursuant to subsection A, paragraph 1, 2, 3, 4, 5, 6, 7 or 8 of this section is a class 2 felony, the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13-701, subsections C, D and E. The terms are as follows:
1. The term for a first offense is as follows:
Minimum Presumptive Maximum
10 13 years 13.5 20 years 24 27 years
2. The term for a defendant who has one historical prior felony conviction is as follows:
Minimum Presumptive Maximum
17 25 years 24 35 years 31 45 years
3. The term for a defendant who has two or more historical prior felony convictions is as follows:
Minimum Presumptive Maximum
24 30 years 31 40 years 38 50 years
H. If the person has previously been convicted of child sex trafficking involving a minor who is fifteen, sixteen or seventeen years of age, child sex trafficking pursuant to subsection A, paragraph 9 or 10 of this section is a class 2 felony, the person convicted shall be sentenced pursuant to this section and the person shall be sentenced to imprisonment in the custody of the state department of corrections for natural life. A person who is sentenced to natural life is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis for the remainder of the person's natural life.
I. If the minor is fifteen, sixteen or seventeen years of age, child sex trafficking pursuant to subsection B, paragraph 2 of this section is a class 2 felony, the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13-701, subsections C, D and E. The terms are as follows:
1. The term for a first offense is as follows:
Minimum Presumptive Maximum
7 years 10.5 years 21 years
2. The term for a defendant who has one historical prior felony conviction is as follows:
Minimum Presumptive Maximum
14 years 15.75 years 28 years
3. The term for a defendant who has two or more historical prior felony convictions is as follows:
Minimum Presumptive Maximum
21 years 28 years 35 years
J. Except as provided in subsection K of this section, child sex trafficking pursuant to subsection B, paragraph 3 of this section is a class 6 5 felony. If the court sentences the person to a term of probation, the court shall order that as an initial term of probation the person be imprisoned in the county jail for not less than one hundred eighty consecutive days. This jail term shall commence on the date of sentencing. The court may suspend ninety days of the jail sentence if the person has not previously been convicted of a violation of this section, a violation of section 13-3214 or a violation of any city or town ordinance that prohibits prostitution and that has the same or substantially similar elements as section 13-3214 and the person successfully completes an appropriate court ordered education or treatment program.
K. If the person has previously been convicted of Child sex trafficking or attempted child sex trafficking pursuant to this section, child sex trafficking pursuant to subsection B, paragraph 3 of this section is a class 2 felony and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed has been served or commuted.
K. L. This section does not preclude the state from alleging and proving any other sentencing enhancements as provided by law.
L. M. For the purposes of this section, "sexually explicit performance" means a live or public act or show intended to arouse or satisfy the sexual desires or appeal to the prurient interest of patrons.
Sec. 4. Section 13-3409, Arizona Revised Statutes, is amended to read:
13-3409. Involving or using minors in drug offenses; classification
A. A person shall not knowingly:
1. Hire, employ or use a minor to engage in any conduct, completed or preparatory, that is prohibited by sections 13-3404, 13-3404.01, 13-3405, 13-3406, 13-3407 and 13-3408.
2. Sell, transfer or offer to sell or transfer to a minor any substance if its possession is prohibited by sections 13-3404, 13-3404.01, 13-3405, 13-3407 and 13-3408.
B. A person who violates this section is guilty of a class 2 felony and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the sentence imposed by the court has been served or commuted, and if the minor is under fifteen years of age it is punishable pursuant to section 13-705, subsection C D.
C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the substance involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
Sec. 5. Section 13-3552, Arizona Revised Statutes, is amended to read:
13-3552. Commercial sexual exploitation of a minor; classification
A. A person commits commercial sexual exploitation of a minor by knowingly:
1. Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.
2. Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.
3. Permitting a minor under the person's custody or control to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.
4. Transporting or financing the transportation of any minor through or across this state with the intent that the minor engage in prostitution, exploitive exhibition or other sexual conduct for the purpose of producing a visual depiction or live act depicting such conduct.
5. Using an advertisement for prostitution as defined in section 13-3211 that contains a visual depiction of a minor.
B. Subsection A, paragraph 5 of this section does not apply to an act that is prohibited by section 13-3555 or to websites or internet service providers that host advertisements created and published by third parties and do not participate in creating or publishing the advertisements.
C. Commercial sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705. Commercial sexual exploitation of a minor who is fifteen, sixteen or seventeen years of age is a class 2 felony, the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13-701, subsections C, D and E. The terms are as follows:
1. The term for a first offense is as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
2. The term for a defendant who has one historical prior felony conviction is as follows:
Minimum Presumptive Maximum
25 years 35 years 45 years
3. The term for a defendant who has two or more historical prior felony convictions is as follows:
Minimum Presumptive Maximum
30 years 40 years 50 years
Sec. 6. Section 13-3560, Arizona Revised Statutes, is amended to read:
13-3560. Aggravated luring a minor for sexual exploitation; classification; definitions
A. A person commits aggravated luring a minor for sexual exploitation if the person does both of the following:
1. Knowing the character and content of the depiction, uses an electronic communication device to transmit at least one visual depiction of material that is harmful to minors for the purpose of initiating or engaging in communication with a recipient who the person knows or has reason to know is a minor.
2. By means of the communication, offers or solicits sexual conduct with the minor. The offer or solicitation may occur before, contemporaneously with, after or as an integrated part of the transmission of the visual depiction.
B. It is not a defense to a prosecution for a violation of this section that the other person is not a minor or that the other person is a peace officer posing as a minor.
C. Aggravated luring a minor for sexual exploitation is a class 2 felony, and if the minor is under fifteen years of age it is punishable pursuant to section 13-705, subsection D E.
D. The defense prescribed in section 13-1407, subsection E applies to a prosecution pursuant to this section.
E. For the purposes of this section:
1. "Electronic communication device" means any electronic device that is capable of transmitting visual depictions and includes any of the following:
(a) A computer, computer system or network as defined in section 13-2301.
(b) A cellular or wireless telephone as defined in section 13-4801.
2. "Harmful to minors" has the same meaning prescribed in section 13-3501.
Sec. 7. Section 31-412, Arizona Revised Statutes, is amended to read:
31-412. 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. 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, on request, shall make the prisoner's restitution payment history available to the board, victim, victim's attorney and department without cost.
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 Q R, paragraph 1 or section 13-706, subsection F, paragraph 1.
Sec. 8. Section 41-1604.11, Arizona Revised Statutes, is amended to read:
41-1604.11. Order for removal; purposes; duration; work furlough; notice; failure to return; classification; applicability; definition
A. The director of the state department of corrections may authorize the temporary removal under custody from prison or any other institution for the detention of adults under the jurisdiction of the state department of corrections of any inmate for the purpose of employing that inmate in any work directly connected with the administration, management or maintenance of the prison or institution in which the inmate is confined, for purposes of cooperating voluntarily in medical research that cannot be performed at the prison or institution, or for participating in community action activities directed toward delinquency prevention and community betterment programs. The removal shall not be for a period longer than one day.
B. Under specific rules established by the director for the selection of inmates, the director may also authorize furlough, temporary removal or temporary release of any inmate for compassionate leave, for the purpose of furnishing to the inmate medical treatment not available at the prison or institution, for purposes preparatory to a return to the community within ninety days of the inmate's release date or for disaster aid, including local mutual aid and state emergencies. When an inmate is temporarily removed or temporarily released for a purpose preparatory to return to the community or for compassionate leave, the director may require the inmate to reimburse the state, in whole or part, for expenses incurred by the state in connection with the temporary removal or release.
C. The board of executive clemency, under specific rules established for the selection of inmates, if it appears to the board, in its sole discretion, that there is a substantial probability that the inmate will remain at liberty without violating the law and that the release is in the best interests of the state, may authorize the release of an inmate on work furlough if the inmate has served not less than six months of the sentence imposed by the court, is within twelve months of the inmate's parole eligibility date and has not been convicted of a sexual offense. The director shall provide information as the board requests concerning any inmate eligible for release on work furlough. The inmate shall not be released on work furlough unless the release is approved by the board.
D. An inmate who is otherwise eligible for work furlough pursuant to subsection C of this section, who is not on home arrest 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 work furlough except by one of the following votes:
1. A majority affirmative vote if four or more members of the board of executive clemency consider the action.
2. A unanimous affirmative vote if three members of the board of executive clemency consider the action.
3. A unanimous affirmative vote if two members of the board of executive clemency consider the action pursuant to section 31-401, subsection I and the chairman of the board concurs after reviewing the information considered by the two members.
E. Before holding a hearing on the work furlough under consideration, the board, on request, shall notify and afford an opportunity to be heard to the presiding judge of the superior court in the county in which the inmate requesting a work furlough was sentenced, the prosecuting attorney, the director of the arresting law enforcement agency and the victim of the offense for which the inmate is incarcerated. The notice shall state the name of the inmate requesting the work furlough, the offense for which the inmate was sentenced, the length of the sentence and the date of admission to the custody of the state department of corrections. The notice to the victim shall also inform the victim of the victim's right to be present and submit a written report to the board expressing the victim's opinion concerning the inmate's release. No hearing concerning work furlough 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.
F. The board shall require that every inmate released on work furlough comply with the terms and conditions of release as the board may impose, including that the inmate be gainfully employed while on work furlough and that the inmate make restitution to the victim of the offense for which the inmate was incarcerated.
G. If the board finds that an inmate has failed to comply with the terms and conditions of release or that the best interests of this state would be served by revocation of an inmate's work furlough, the board may issue a warrant for retaking the inmate before the expiration of the inmate's maximum sentence. After return of the inmate, the board may revoke the inmate's work furlough after the inmate has been given an opportunity to be heard.
H. If the board denies the release of an inmate on work furlough or home arrest, it may prescribe that the inmate not be recommended again for release on work furlough or home arrest for a period of up to one year.
I. The director shall transmit a monthly report containing the name, date of birth, offense for which the inmate was sentenced, length of the sentence and date of admission to the state department of corrections of each inmate on work furlough or home arrest to the chairperson of the house of representatives judiciary committee or its successor committee and the chairperson of the senate judiciary committee or its successor committee. The director shall also submit a report containing this information for any inmate released on work furlough or home arrest within a jurisdiction to the county attorney, sheriff and chief of police for the jurisdiction in which the inmate is released on work furlough or home arrest.
J. Any inmate who knowingly fails to return from furlough, home arrest, work furlough or temporary removal or temporary release granted under this section is guilty of a class 5 felony.
K. At any given time if the director declares there is a shortage of beds available for inmates within the state department of corrections, the parole eligibility as set forth in sections 31-411 and 41-1604.09 may be suspended for any inmate who has served not less than six months of the sentence imposed by the court, who has not been previously convicted of a felony and who has been sentenced for a class 4, 5 or 6 felony, not involving a sexual offense, the use or exhibition of a deadly weapon or dangerous instrument or the infliction of serious physical injury pursuant to section 13-704, and the inmate shall be continuously eligible for parole, home arrest or work furlough.
L. Prisoners who have served at least one calendar year and who are serving a sentence for conviction of a crime committed on or after October 1, 1978, under section 13-604, 13-1406, 13-1410, 13-3406, 36-1002.01, 36-1002.02 or 36-1002.03, and who are sentenced to the custody of the state department of corrections, may be temporarily released, according to the rules of the department, at the discretion of the director, one hundred eighty calendar days prior to expiration of the term imposed and shall remain under the control of the state department of corrections until expiration of the maximum sentence specified. If an offender released under this section or pursuant to section 31-411, subsection B violates the rules, the offender may be returned to custody and shall be classified to a parole class as provided by the rules of the department.
M. This section applies only to persons who commit felony offenses before January 1, 1994.
N. For the purposes of this section, "serious offense" means 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 Q R, paragraph 1 or section 13-706, subsection F, paragraph 1.
Sec. 9. Section 41-1604.13, Arizona Revised Statutes, is amended to read:
41-1604.13. Home arrest; eligibility; victim notification; conditions; applicability; definitions
A. An inmate who has served not less than six months of the sentence imposed by the court is eligible for the home arrest program if the inmate:
1. Meets the following criteria:
(a) Was convicted of committing a class 4, 5 or 6 felony not involving a dangerous offense.
(b) Was not convicted of a sexual offense.
(c) Has not previously been convicted of any felony.
2. Violated parole by the commission of a technical violation that was not chargeable or indictable as a criminal offense.
3. Is eligible for work furlough.
4. Is eligible for parole pursuant to section 31-412, subsection A.
B. The board of executive clemency shall determine which inmates are released to the home arrest program based on the criteria in subsection A of this section and based on a determination that there is a substantial probability that the inmate will remain at liberty without violating the law and that the release is in the best interests of the state after considering the offense for which the inmate is presently incarcerated, the prior record of the inmate, the conduct of the inmate while incarcerated and any other information concerning the inmate that is in the possession of the state department of corrections, including any presentence report. The board maintains the responsibility of revocation as applicable to all parolees.
C. An inmate who is otherwise eligible for home arrest, who is not on 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 home arrest except by one of the following votes:
1. A majority affirmative vote if four or more members of the board of executive clemency consider the action.
2. A unanimous affirmative vote if three members of the board of executive clemency consider the action.
3. A unanimous affirmative vote if two members of the board of executive clemency consider the action pursuant to section 31-401, subsection I and the chairman of the board concurs after reviewing the information considered by the two members.
D. Home arrest is conditioned on the following:
1. Active electronic monitoring surveillance for a minimum term of one year or until eligible for general parole.
2. Participation in gainful employment or other beneficial activities.
3. Submission to alcohol and drug tests as mandated.
4. Payment of the electronic monitoring fee in an amount determined by the board of not less than one dollar per day and not more than the total cost of the electronic monitoring unless, after determining the inability of the inmate to pay the fee, the board requires payment of a lesser amount. The fees collected shall be returned to the department's home arrest program to offset operational costs of the program.
5. Remaining at the inmate's place of residence at all times except for movement out of the residence according to mandated conditions.
6. Adherence to any other conditions imposed by the court, board of executive clemency or supervising corrections officers.
7. Compliance with all other conditions of supervision.
8. Payment of a monthly home arrest supervision fee of at least sixty-five dollars unless, after determining the inability of the inmate to pay the fee, the department requires payment of a lesser amount. The supervising corrections officer shall monitor the collection of the fee. Monies collected shall be deposited, pursuant to sections 35-146 and 35-147, in the community corrections enhancement fund established by section 31-418.
9. Payment of a drug testing fee in an amount to be determined by the board and not to exceed the costs of the drug testing program. The fees collected pursuant to this paragraph by the department may only be used to offset the costs of the drug testing program.
E. Before holding a hearing on home arrest, the board on request shall notify and afford an opportunity to be heard to the presiding judge of the superior court in the county in which the inmate requesting home arrest was sentenced, the prosecuting attorney and the director of the arresting law enforcement agency. The board shall notify the victim of the offense for which the inmate is incarcerated. The notice shall state the name of the inmate requesting home arrest, the offense for which the inmate was sentenced, the length of the sentence and the date of admission to the custody of the state department of corrections. 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 inmate's release. No hearing concerning home arrest may 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.
F. An inmate who is placed on home arrest is on inmate status, is subject to all the limitations of rights and movement and is entitled only to due process rights of return.
G. If an inmate violates a condition of home arrest that poses any threat or danger to the community, or commits an additional felony offense, the board shall revoke the home arrest and return the inmate to the custody of the state department of corrections to complete the term of imprisonment as authorized by law.
H. The ratio of supervising corrections officers to supervisees in the home arrest program shall be no greater than one officer for every twenty-five supervisees.
I. The board shall determine when the supervisee is eligible for transfer to the regular parole program pursuant to section 31-411.
J. This section applies only to persons who commit felony offenses before January 1, 1994.
K. For the purposes of this section:
1. "Dangerous offense" has the same meaning prescribed in section 13-105.
2. "Serious offense" includes any of the following:
(a) 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).
(b) 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.
(c) 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 Q R, paragraph 1 or section 13-706, subsection F, paragraph 1.