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HB 95
PAROLE TERM FOR FIRST DEGREE FELONY
SEX OFFENDER
1996 GENERAL SESSION
STATE OF UTAH
Sponsor: John L. Valentine
Shirley V. Jensen
Robert H. M. Killpack
AN ACT RELATING TO THE CRIMINAL CODE AND CODE OF CRIMINAL PROCEDURE;
REQUIRING A LIFETIME PAROLE PERIOD FOR SEX OFFENDERS CONVICTED OF
FIRST DEGREE FELONIES; PROVIDING THE PAROLEE THE RIGHT TO PETITION TO
TERMINATE THE LIFETIME PERIOD OF PAROLE; REQUIRING ADMINISTRATIVE
RULES TO GOVERN HEARINGS, EXAMINATIONS, PAROLE CONDITIONS, AND
PETITIONS FOR TERMINATION; AND CLARIFYING APPLICABILITY OF PAROLE
PERIODS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
64-13-21 , as last amended by Chapter 13, Laws of Utah 1994
76-3-202 , as last amended by Chapter 13, Laws of Utah 1994
77-27-1 , as last amended by Chapter 13, Laws of Utah 1994
77-27-5 , as last amended by Chapter 301, Laws of Utah 1995
77-27-7 , as last amended by Chapter 13, Laws of Utah 1994
77-27-9 (Effective 04/29/96), as last amended by Chapter 10, Laws of Utah 1995, First Special
Session
77-27-10 , as last amended by Chapter 13, Laws of Utah 1994
Be it enacted by the Legislature of the state of Utah:
Section 1.
Section
64-13-21
is amended to read:
64-13-21. Supervision of sentenced offenders placed in community -- Rulemaking
-- POST certified parole or probation officers and peace officers -- Duties.
(1) (a) The department, except as otherwise provided by law, shall supervise sentenced
offenders placed in the community on probation by the courts, on parole by the Board of Pardons
and Parole, or upon acceptance for supervision under the terms of the Interstate Compact for the
Supervision of Parolees and Probationers.
(b) Standards for the supervision of offenders shall be established by the department in
accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, giving priority, based
on available resources, to felony offenders.
(2) Employees of the department who are POST certified and who are designated as parole
and probation officers by the executive director are peace officers and have the following duties:
(a) monitoring, investigating, and supervising a parolee's or probationer's compliance with
the conditions of the parole or probation agreement;
(b) investigating or apprehending any offender who has escaped from the custody of the
department or absconded from supervision;
(c) providing investigative services for the courts, the department, or the Board of Pardons
and Parole; or
(d) supervising any offender during transportation.
(3) (a) A monthly supervision fee of $30 shall be collected from each offender on probation
or parole. The fee may be suspended or waived by the department upon a showing by the offender
that imposition would create a substantial hardship or if the offender owes restitution to a victim.
(b) The department shall make rules in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act, specifying the criteria for suspension or waiver of the supervision
fee[,] and the circumstances under which an offender may request a hearing. In determining whether
the imposition of the fee would constitute a substantial hardship, the department shall consider the
financial resources of the offender and the burden that the fee would impose, with regard to the
offender's other obligations.
Section 2.
Section
76-3-202
is amended to read:
76-3-202. Paroled persons -- Termination or discharge from sentence -- Time served
on parole -- Discretion of Board of Pardons and Parole.
(1) [Every] Except as otherwise provided in this section, every person committed to the state
prison to serve an indeterminate term and later released on parole shall, upon completion of three
- 2 -
years on parole outside of confinement and without violation, [or in the case of a person convicted
of violating Section 76-5-301.1
, Subsection
76-5-302
(1)(e), Section 76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404
,
76-5-404.1
, or
76-5-405
, or attempting to
violate any of those sections, upon completion of ten years on parole outside of confinement and
without violation,] be terminated from his sentence unless the person is earlier terminated by the
Board of Pardons and Parole. Any person who violates the terms of his parole, while serving parole,
shall at the discretion of the Board of Pardons and Parole be recommitted to prison to serve the
portion of the balance of his term as determined by the Board of Pardons and Parole, but not to
exceed the maximum term.
(2) Every person convicted of a second degree felony for violating Section 76-5-404
or
76-5-404.1
, or attempting to violate any of those sections, upon completion of ten years parole
outside of confinement and without violation, shall be terminated from his sentence unless the
person is earlier terminated by the Board of Pardons and Parole. Any person who violates the terms
of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole be
recommitted to prison to serve the portion of the balance of his term as determined by the Board of
Pardons and Parole, but not to exceed the maximum term.
(3) Every person convicted of a first degree felony for violating Section 76-5-301.1
,
Subsection
76-5-302
(1)(e), Section 76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404.1
, or
76-5-405
, or attempting to violate any of those sections, shall complete
a term of lifetime parole outside of confinement and without violation unless the person is earlier
terminated by the Board of Pardons and Parole. Any person who violates the terms of his parole,
while serving parole, shall at the discretion of the Board of Pardons and Parole be recommitted to
prison to serve the portion of the balance of his term as determined by the Board of Pardons and
Parole, but not to exceed the maximum term.
[(2)] (4) Any person paroled following a former parole revocation may not be discharged
from his sentence until either:
(a) he has served three years or ten years as provided in Subsection (2) on parole outside of
confinement and without violation, or in the case of a person convicted of [violating] a first degree
- 3 -
felony violation of Section 76-5-301.1
, Subsection
76-5-302
(1)(e), Section 76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
, [
76-5-404
,]
76-5-404.1
, or
76-5-405
, or attempting
to violate any of those sections, [ten years on] lifetime parole outside of confinement and without
violation;
(b) his maximum sentence has expired; or
(c) the Board of Pardons and Parole so orders.
[(3)] (5) (a) All time served on parole, outside of confinement and without violation
constitutes service of the total sentence but does not preclude the requirement of serving a three-year
[or], ten-year, or lifetime parole term, as the case may be, [parole term] outside of confinement and
without violation.
(b) Any time a person spends outside of confinement after commission of a parole violation
does not constitute service of the total sentence unless the person is exonerated at a hearing to revoke
the parole.
(c) Any time spent in confinement awaiting a hearing before the Board of Pardons and
Parole or a decision by the board concerning revocation of parole constitutes service of the sentence.
In the case of exoneration by the board, the time spent shall be included in computing the total parole
term.
[(4)] (6) When any parolee without authority from the Board of Pardons and Parole absents
himself from the state or avoids or evades parole supervision, the period of absence, avoidance, or
evasion tolls the parole period.
[(5)] (7) This section does not preclude the Board of Pardons and Parole from paroling or
discharging an inmate at any time within the discretion of the Board of Pardons and Parole unless
otherwise specifically provided by law.
(8) The parolee may petition the Board of Pardons and Parole for termination of lifetime
parole as provided by Section 76-3-202
in the case of a person convicted of a first degree felony
violation Section 76-5-301.1
, Subsection
76-5-302
(1)(e), Section 76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404.1
, or
76-5-405
, or attempting to violate any of those
sections.
- 4 -
Section 3.
Section
77-27-1
is amended to read:
77-27-1. Definitions.
As used in this chapter:
(1) "Board" means the Board of Pardons and Parole.
(2) "Commission" means the Commission on Criminal and Juvenile Justice.
(3) "Commutation" is the change from a greater to a lesser punishment after conviction.
(4) "Department" means the Department of Corrections.
(5) "Expiration" occurs when the maximum sentence has run.
(6) "Family" means persons related to the victim as a spouse, child, sibling, parent, or
grandparent, or the victim's legal guardian.
(7) "Panel" means members of the board assigned by the chairperson to a particular case.
(8) "Pardon" is an act of grace by an appropriate authority exempting a person from
punishment for a crime.
(9) "Parole" is a release from imprisonment on prescribed conditions which, if satisfactorily
performed by the parolee, [entitles him to] enables the parolee to obtain a termination of his
sentence.
(10) "Probation" is an act of grace by the court suspending the imposition or execution of
a convicted offender's sentence upon prescribed conditions.
(11) "Reprieve or respite" is the temporary suspension of the execution of the sentence.
(12) "Termination" is the act of an appropriate authority discharging from parole or
concluding the sentence of imprisonment prior to the expiration of the sentence.
(13) "Victim" means:
(a) a person against whom the defendant committed a felony or class A misdemeanor
offense, and regarding which offense a hearing is held under this chapter; or
(b) the victim's family, if the victim is deceased as a result of the offense for which a hearing
is held under this chapter.
Section 4.
Section
77-27-5
is amended to read:
77-27-5. Board of Pardons and Parole authority.
- 5 -
(1) (a) The Board of Pardons and Parole shall determine by majority decision when and
under what conditions, subject to this chapter and other laws of the state, persons committed to serve
sentences in class A misdemeanor cases at penal or correctional facilities which are under the
jurisdiction of the Department of Corrections, and all felony cases except treason or impeachment
or as otherwise limited by law, may be released upon parole, pardoned, restitution ordered, or have
their fines, forfeitures, or restitution remitted, or their sentences commuted or terminated.
(b) The board may sit together or in panels to conduct hearings. The chair shall appoint
members to the panels in any combination and in accordance with rules promulgated by the board,
except in hearings involving commutation and pardons. The chair may participate on any panel and
when doing so is chair of the panel. The chair of the board may designate the chair for any other
panel.
(c) No restitution may be ordered, no fine, forfeiture, or restitution remitted, no parole,
pardon, or commutation granted or sentence terminated, except after a full hearing before the board
or the board's appointed examiner in open session. Any action taken under this subsection other than
by a majority of the board shall be affirmed by a majority of the board.
(d) A commutation or pardon may be granted only after a full hearing before the board.
(e) The board shall determine restitution in an amount that does not exceed complete
restitution if determined by the court in accordance with Section 76-3-201
.
(2) (a) In the case of original parole grant hearings, rehearings, and parole revocation
hearings, timely prior notice of the time and place of the hearing shall be given to the defendant, the
county or district attorney's office responsible for prosecution of the case, the sentencing court, law
enforcement officials responsible for the defendant's arrest and conviction, and whenever possible,
the victim or the victim's family.
(b) Notice to the victim, his representative, or his family shall include information provided
in Section 77-27-9.5
, and any related rules made by the board under that section. This information
shall be provided in terms that are reasonable for the lay person to understand.
(3) Decisions of the board [of Pardons and Parole] in cases involving paroles, pardons,
commutations or terminations of sentence, restitution, or remission of fines or forfeitures are final
- 6 -
and are not subject to judicial review. Nothing in this section prevents the obtaining or enforcement
of a civil judgment, including restitution as provided in Section 77-27-6
.
(4) This chapter may not be construed as a denial of or limitation of the governor's power
to grant respite or reprieves in all cases of convictions for offenses against the state, except treason
or conviction on impeachment. However, respites or reprieves may not extend beyond the next
session of the Board of Pardons and Parole and the board, at that session, shall continue or terminate
the respite or reprieve, or it may commute the punishment, or pardon the offense as provided. In the
case of conviction for treason, the governor may suspend execution of the sentence until the case is
reported to the Legislature at its next session. The Legislature shall then either pardon or commute
the sentence, or direct its execution.
(5) In determining when, where, and under what conditions offenders serving sentences may
be paroled, pardoned, have restitution ordered, or have their fines or forfeitures remitted, or their
sentences commuted or terminated, the board [of Pardons and Parole] shall consider whether the
persons have made or are prepared to make restitution as ascertained in accordance with the
standards and procedures of Section 76-3-201
, as a condition of any parole, pardon, remission of
fines or forfeitures, or commutation or termination of sentence.
(6) In determining whether parole may be terminated, the board shall consider the offense
committed by the parolee, the parole period as provided in Section 76-3-202
, and in accordance with
Section 77-27-13
.
Section 5.
Section
77-27-7
is amended to read:
77-27-7. Parole or hearing dates -- Interview -- Hearings -- Report of alienists --
Mental competency.
(1) The Board of Pardons and Parole shall determine within six months after the date of an
offender's commitment to the custody of the Department of Corrections, for serving a sentence upon
conviction of a felony or class A misdemeanor offense, a date upon which the offender shall be
afforded a hearing to establish a date of release or a date for a rehearing, and shall promptly notify
the offender of the date.
(2) Before reaching a final decision to release any offender under this chapter, the chair shall
- 7 -
cause the offender to appear before the board, its panel, or any appointed hearing officer, who shall
personally interview the offender to consider his fitness for release and verify as far as possible
information furnished from other sources. Any offender may waive a personal appearance before
the board [of Pardons and Parole]. Any offender outside of the state shall, if ordered by the board
[of Pardons and Parole], submit to a courtesy hearing to be held by the appropriate authority in the
jurisdiction in which the offender is housed in lieu of an appearance before the board. [Rules to
carry out this section shall be made by the board.] The offender shall be promptly notified in writing
of the board's decision.
(3) In the case of an offender convicted of violating or attempting to violate any of the
provisions of [Sections] Section
76-5-301.1
, Subsection
76-5-302
(1)(e), Sections
76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404
,
76-5-404.1
, and
76-5-405
, the
chair shall appoint one or more alienists who shall examine the offender within six months prior to
a hearing at which an original parole date is granted on any offense listed in this subsection. The
alienists shall report in writing the results of the examination to the board prior to the hearing. The
report of the appointed alienists shall specifically address the question of the offender's current
mental condition and attitudes as they relate to any danger the offender may pose to children or
others if the offender is released on parole.
(4) The parolee may petition the board for termination of lifetime parole as provided in
Section 76-3-202
in the case of a person convicted of a first degree felony violation or convicted of
attempting to violate Section 76-5-301.1
, Subsection
76-5-302
(1)(e), Sections
76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404.1
, and
76-5-405
.
[(4)] (5) In any case where an offender's mental competency is questioned by the board, the
chair shall appoint one or more alienists to examine the offender and report in writing to the board,
specifically addressing the issue of competency.
(6) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
board shall make rules governing:
(a) the hearing process;
(b) alienist examination; and
- 8 -
(c) parolee petitions for termination of parole.
Section 6.
Section
77-27-9
(Effective 04/29/96)
is amended to read:
77-27-9 (Effective 04/29/96). Parole proceedings.
(1) (a) The Board of Pardons and Parole may pardon or parole any offender or commute or
terminate the sentence of any offender committed to a penal or correctional facility under the
jurisdiction of the Department of Corrections for a felony or class A misdemeanor except as
provided in Subsection (2).
(b) The board may not release any offender before the minimum term has been served unless
the board finds mitigating circumstances which justify the release and unless the board has granted
a full hearing, in open session, after previous notice of the time and place of the hearing, and
recorded the proceedings and decisions of the board.
(c) The board may not pardon or parole any offender or commute or terminate the sentence
of any offender unless the board has granted a full hearing, in open session, after previous notice of
the time and place of the hearing, and recorded the proceedings and decisions of the board.
(d) The release of an offender shall be at the initiative of the board, which shall consider
each case as the offender becomes eligible. However, a prisoner may submit his own application,
subject to the rules of the board promulgated in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act.
(2) (a) A person sentenced to prison prior to April 29, 1996, for a [felony of the] first degree
felony involving child kidnaping, a violation of Section 76-5-301.1
; aggravated kidnaping, a
violation of Section 76-5-302
; rape of a child, a violation of Section 76-5-402.1
; object rape of a
child, a violation of Section 76-5-402.3
; sodomy upon a child, a violation of Section 76-5-403.1
;
aggravated sexual abuse of a child, a violation of Subsection
76-5-404.1
(3); aggravated sexual
assault, a violation of Section 76-5-405
; or a prior offense as described in Section 76-3-407
, may not
be eligible for release on parole by the Board of Pardons and Parole [if the case comes before the
board regarding a person convicted on or after April 29, 1996] until the offender has fully completed
serving the minimum mandatory sentence imposed by the court. This subsection supersedes any
other provision of law.
- 9 -
(b) The board may not parole any offender or commute or terminate the sentence of any
offender before the offender has served the minimum term for the offense, if the offender was
sentenced prior to April 29, 1996, and if:
(i) the offender was convicted of forcible sexual abuse, forcible sodomy, rape, aggravated
assault, kidnaping, aggravated kidnaping, or aggravated sexual assault as defined in Title 76, Chapter
5; and
(ii) the victim of the offense was under 18 years of age at the time the offense was
committed.
(c) For a crime committed on or after April 29, 1996, the board may parole any offender
under Subsections (2)(b)(i) and (ii) for lifetime parole as provided in Section 77-27-9
.
[(b)] (d) The board may not pardon or parole any offender or commute or terminate the
sentence of any offender who is sentenced to life in prison without parole except as provided in
Subsection (6).
[(c)] (e) On or after April 27, 1992, the board may commute a sentence of death only to a
sentence of life in prison without parole.
[(d)] (f) The restrictions imposed in Subsections
77-27-9
(2)[(b) and (c)] (d) and (e) apply
to all cases that come before the Board of Pardons and Parole on or after April 27, 1992.
(3) The board may issue subpoenas to compel the attendance of witnesses and the production
of evidence, to administer oaths, and to take testimony for the purpose of any investigation by the
board or any of its members or by a designated hearing examiner in the performance of its duties.
A person who willfully disobeys a properly served subpoena issued by the board is guilty of a class
B misdemeanor.
(4) (a) The board may adopt rules consistent with law for its government, meetings and
hearings, the conduct of proceedings before it, the parole and pardon of offenders, the commutation
and termination of sentences, and the general conditions under which parole may be granted and
revoked.
(b) The rules shall ensure an adequate opportunity for victims to participate at hearings held
under this chapter, as provided in Section 77-27-9.5
.
- 10 -
(c) The rules may allow the board to establish reasonable and equitable time limits on the
presentations by all participants in hearings held under this chapter.
(5) The board does not provide counseling or therapy for victims as a part of their
participation in any hearing under this chapter.
(6) The board may parole a person sentenced to life in prison without parole if the board
finds by clear and convincing evidence that the person is permanently incapable of being a threat to
the safety of society.
Section 7.
Section
77-27-10
is amended to read:
77-27-10. Conditions of parole -- Rulemaking -- Intensive early release parole
program.
(1) (a) When the Board of Pardons and Parole releases an offender on parole, it shall issue
to the parolee a certificate setting forth the conditions of parole which he shall accept and agree to
as evidenced by his signature affixed to the agreement.
(b) A copy of the agreement shall be delivered to the Department of Corrections and a copy
shall be given to the parolee. The original shall remain with the board's file.
(2) If an offender convicted of violating or attempting to violate Section 76-5-301.1
,
Subsection
76-5-302
(1), Section 76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404
,
76-5-404.1
, or
76-5-405
, is released on parole, the board shall order outpatient
mental health counseling and treatment as a condition of parole. The board shall develop standards
and conditions of parole under this subsection in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act. This subsection does not apply to intensive early release parole.
(3) (a) In addition to the conditions set out in Subsection (1), the board may place offenders
in an intensive early release parole program. The board shall determine the conditions of parole
which are reasonably necessary to protect the community as well as to protect the interests of the
offender and to assist the offender to lead a law-abiding life.
(b) The offender is eligible for this program only if he:
(i) has not been convicted of a sexual offense; or
(ii) has not been sentenced pursuant to Section 76-3-406
.
- 11 -
(c) The department shall:
(i) promulgate rules in accordance with Title 63, Chapter 46a, Utah Administrative
Rulemaking Act, for operation of the program;
(ii) adopt and implement internal management policies for operation of the program;
(iii) determine whether or not to refer an offender into this program within 120 days from
the date the offender is committed to prison by the sentencing court; and
(iv) make the final recommendation to the board regarding the placement of an offender into
the program.
(d) The department shall not consider credit for time served in a county jail awaiting trial
or sentencing when calculating the 120 day period.
(e) The prosecuting attorney or sentencing court may refer an offender for consideration by
the department for participation in the program.
(f) The board shall determine whether or not to place an offender into this program within
30 days of receiving the department's recommendation.
(4) This program shall be implemented by the department within the existing budget.
(5) During the time the offender is on parole, the department shall collect from the offender
the monthly supervision fee authorized by Section 64-13-21
.
- 12 -
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