HOUSE AMENDED PRIOR PRINTER'S NOS. 1572, 1580, 1793 PRINTER'S NO. 2273
No. 1239 Session of 1998
INTRODUCED BY GREENLEAF, O'PAKE, GERLACH, WILLIAMS, EARLL, WAGNER, AFFLERBACH, ARMSTRONG, COSTA, KASUNIC, LEMMOND, RHOADES, TOMLINSON, ULIANA, SCHWARTZ, HOLL, MELLOW AND SALVATORE, JANUARY 16, 1998
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, NOVEMBER 10, 1998
AN ACT 1 Amending the act of August 6, 1941 (P.L.861, No.323), entitled, 2 as amended, "An act to create a uniform and exclusive system 3 for the administration of parole in this Commonwealth; 4 providing state probation services; establishing the 5 'Pennsylvania Board of Probation and Parole'; conferring and 6 defining its jurisdiction, duties, powers and functions; 7 including the supervision of persons placed upon probation 8 and parole in certain designated cases; providing for the 9 method of appointment of its members; regulating the 10 appointment, removal and discharge of its officers, clerks 11 and employes; dividing the Commonwealth into administrative 12 districts for purposes of probation and parole; fixing the 13 salaries of members of the board and of certain other 14 officers and employes thereof; making violations of certain 15 provisions of this act misdemeanors; providing penalties 16 therefor; and for other cognate purposes, and making an 17 appropriation," further providing for TRANSMISSION OF RECORD <-- 18 TO THE BOARD, FOR REPORTING AND INVESTIGATION AND FOR 19 supervision of persons paroled or on probation in other 20 states; providing for proceedings subsequent to parole; and 21 imposing a penalty. 22 The General Assembly of the Commonwealth of Pennsylvania 23 hereby enacts as follows: 24 Section 1. Section 21 of the act of August 6, 1941 (P.L.861, <-- 25 No.323), referred to as the Pennsylvania Board of Probation and
1 Parole Law, amended June 1, 1995 (1st Sp.Sess., P.L.1020, 2 No.16), is amended to read: 3 Section 21. The board is hereby authorized to release on 4 parole any convict confined in any penal institution of this 5 Commonwealth as to whom power to parole is herein granted to 6 said board, except convicts condemned to death or serving life 7 imprisonment, whenever in its opinion the best interests of the 8 convict justify or require his being paroled and it does not 9 appear that the interests of the Commonwealth will be injured 10 thereby. Parole shall be subject in every instance to the 11 Commonwealth's right to immediately retake and hold in custody 12 without further proceedings any parolee charged after his parole 13 with an additional offense, until a determination can be made 14 whether to continue his parole status. The power to parole 15 herein granted to the Board of Parole may not be exercised in 16 the board's discretion at any time before, but only after, the 17 expiration of the minimum term of imprisonment fixed by the 18 court in its sentence or by the Pardon Board in a sentence which 19 has been reduced by commutation. The board may not release a 20 person on parole unless the person achieves a negative result 21 within forty-five days prior to the date of release in a 22 screening test approved by the Department of Health for the 23 detection of the presence of controlled substances or designer 24 drugs under the act of April 14, 1972 (P.L.233, No.64), known as 25 "The Controlled Substance, Drug, Device and Cosmetic Act." The 26 cost of these pre-parole drug screening tests for inmates 27 subject to the parole release jurisdiction of the board, whether 28 confined in a State or local correctional facility, shall be 29 paid by the board. The board shall establish rules and 30 regulations for the payment of these costs and may limit the 19980S1239B2273 - 2 -
1 types and cost of these screening tests that would be subject to 2 payment by the board. The board shall establish, as a condition 3 of continued parole for a parolee who, as an inmate, tested 4 positive for the presence of a controlled substance or a 5 designer drug or who was paroled from a sentence arising from a 6 conviction under "The Controlled Substance, Drug, Device and 7 Cosmetic Act," or from a drug-related crime, the parolee's 8 achievement of negative results in such screening tests randomly 9 applied. The random screening tests shall be performed at the 10 discretion of the board, and the parolee undergoing the tests 11 shall be responsible for the costs of the tests. The funds 12 collected for the tests shall be applied against the contract 13 for such testing between the board and a testing laboratory 14 approved by the Department of Health. Said board shall have the 15 power during the period for which a person shall have been 16 sentenced to recommit one paroled for violation of the terms and 17 conditions of his parole and from time to time to reparole and 18 recommit in the same manner and with the same procedure as in 19 the case of an original parole or recommitment, if, in the 20 judgment of the said board, there is a reasonable probability 21 that the convict will be benefited by again according him 22 liberty and it does not appear that the interests of the 23 Commonwealth will be injured thereby. 24 SECTION 1. SECTION 18 OF THE ACT OF AUGUST 6, 1941 (P.L.861, <-- 25 NO.323), REFERRED TO AS THE PENNSYLVANIA BOARD OF PROBATION AND 26 PAROLE LAW, IS AMENDED TO READ: 27 SECTION 18. IT SHALL BE THE DUTY OF THE COURT SENTENCING ANY 28 PERSON FOR A TERM, AS TO WHICH POWER TO PAROLE IS HEREIN GIVEN 29 TO THE BOARD, TO TRANSMIT TO THE SAID BOARD, WITHIN THIRTY DAYS 30 AFTER THE IMPOSITION OF SUCH SENTENCE, A [FULL AND COMPLETE COPY 19980S1239B2273 - 3 -
1 OF THE RECORD UPON WHICH SENTENCE IS IMPOSED, INCLUDING ANY 2 NOTES OF TESTIMONY] COPY OF THE NOTES OF TESTIMONY OF THE 3 SENTENCING HEARING WHICH MAY HAVE BEEN FILED OF RECORD IN THE 4 CASE, TOGETHER WITH COPIES OF ANY CRIMINAL IDENTIFICATION 5 RECORDS SECURED FROM THE FEDERAL BUREAU OF INVESTIGATION, COPIES 6 OF PRESENTENCE INVESTIGATION REPORTS AND OF BEHAVIOR CLINIC 7 REPORTS, IF ANY WERE SUBMITTED TO THE COURT, THE LAST TWO OF 8 WHICH RECORDS, BEING CONFIDENTIAL RECORDS OF THE COURT, ARE TO 9 BE TREATED CONFIDENTIALLY BY THE MEMBERS OF THE BOARD, WHO SHALL 10 NOT PERMIT EXAMINATION OF THE SAME BY ANY ONE OTHER THAN ITS 11 DULY APPOINTED AGENTS OR REPRESENTATIVES, EXCEPT UPON COURT 12 ORDER. A JUDGE IN HIS DISCRETION MAY MAKE AT ANY TIME ANY 13 RECOMMENDATION HE MAY DESIRE TO THE BOARD RESPECTING THE PERSON 14 SENTENCED AND THE TERM OF IMPRISONMENT SAID JUDGE BELIEVES SUCH 15 PERSON SHOULD BE REQUIRED TO SERVE BEFORE A PAROLE IS GRANTED TO 16 HIM, BUT A RECOMMENDATION MADE BY A JUDGE AS AFORESAID 17 RESPECTING THE PAROLE OR TERMS OF PAROLE OF SUCH PERSON SHALL BE 18 ADVISORY ONLY, AND NO ORDER IN RESPECT THERETO MADE OR ATTEMPTED 19 TO BE MADE AS A PART OF A SENTENCE SHALL BE BINDING UPON THE 20 BOARD IN PERFORMING THE DUTIES AND FUNCTIONS HEREIN CONFERRED 21 UPON IT. 22 SECTION 2. SECTION 19 OF THE ACT, AMENDED OCTOBER 9, 1986 23 (P.L.1424, NO.134), IS AMENDED TO READ: 24 SECTION 19. IT SHALL BE THE DUTY OF THE BOARD, UPON THE 25 COMMITMENT TO PRISON OF ANY PERSON WHOM SAID BOARD IS HEREIN 26 GIVEN THE POWER TO PAROLE, TO [INVESTIGATE AND INFORM ITSELF 27 RESPECTING THE CIRCUMSTANCES OF THE OFFENSE FOR WHICH SAID 28 PERSON SHALL HAVE BEEN SENTENCED, AND, IN ADDITION THERETO, IT 29 SHALL PROCURE INFORMATION AS FULL AND COMPLETE AS MAY BE 30 OBTAINABLE WITH REGARD TO THE CHARACTER, MENTAL CHARACTERISTICS, 19980S1239B2273 - 4 -
1 HABITS, ANTECEDENTS, CONNECTIONS AND ENVIRONMENT OF SUCH 2 PERSON.] CONSIDER THE NATURE AND CIRCUMSTANCES OF THE OFFENSE 3 COMMITTED, ANY RECOMMENDATIONS MADE BY THE TRIAL JUDGE AND 4 PROSECUTING ATTORNEY, THE GENERAL CHARACTER AND BACKGROUND OF 5 THE PRISONER AND THE WRITTEN OR PERSONAL STATEMENT OF THE 6 TESTIMONY OF THE VICTIM OR THE VICTIM'S FAMILY SUBMITTED 7 PURSUANT TO SECTION 22.1 OF THIS ACT. THE BOARD SHALL FURTHER 8 [PROCURE] CONSIDER THE [STENOGRAPHIC RECORD] NOTES OF TESTIMONY 9 OF THE SENTENCING HEARING, IF ANY, [OF THE TRIAL, CONVICTION AND 10 SENTENCE,] TOGETHER WITH SUCH ADDITIONAL INFORMATION REGARDING 11 THE [CRIME] NATURE AND CIRCUMSTANCES OF THE OFFENSE COMMITTED 12 FOR WHICH SENTENCE WAS IMPOSED AS MAY BE AVAILABLE. THE BOARD 13 SHALL FURTHER CAUSE THE CONDUCT OF THE PERSON WHILE IN PRISON 14 AND HIS PHYSICAL, MENTAL AND BEHAVIOR CONDITION AND HISTORY, HIS 15 HISTORY OF FAMILY VIOLENCE AND HIS COMPLETE CRIMINAL RECORD, AS 16 FAR AS THE SAME MAY BE KNOWN, TO BE [INVESTIGATED AND] REPORTED 17 AND INVESTIGATED. ALL PUBLIC OFFICIALS HAVING POSSESSION OF SUCH 18 RECORDS OR INFORMATION ARE HEREBY REQUIRED AND DIRECTED TO 19 FURNISH THE SAME TO THE BOARD UPON ITS REQUEST AND WITHOUT 20 CHARGE THEREFOR[. SAID INVESTIGATION SHALL BE MADE BY THE BOARD] 21 SO FAR AS MAY BE PRACTICABLE WHILE THE CASE IS RECENT.[, AND IN 22 GRANTING PAROLES THE BOARD SHALL CONSIDER THE NATURE AND 23 CHARACTER OF THE OFFENSE COMMITTED, ANY RECOMMENDATION MADE BY 24 THE TRIAL JUDGE, THE GENERAL CHARACTER AND HISTORY OF THE 25 PRISONER AND THE WRITTEN OR PERSONAL STATEMENT OR TESTIMONY OF 26 THE VICTIM OR THE VICTIM'S FAMILY SUBMITTED PURSUANT TO SECTION 27 22.1 OF THIS ACT. 28 THE BOARD SHALL, IN ALL CASES, CONSIDER THE RECOMMENDATIONS 29 OF THE TRIAL JUDGE AND OF THE DISTRICT ATTORNEY AND OF EACH 30 WARDEN OR SUPERINTENDENT, AS THE CASE MAY BE, WHO HAS HAD CHARGE 19980S1239B2273 - 5 -
1 OF AN APPLICANT, EACH OF WHOM IS DIRECTED TO SUBMIT TO THE BOARD 2 HIS RECOMMENDATION AND THE REASONS THEREFOR, WITH RESPECT TO 3 EACH PAROLE APPLICATION.] 4 SECTION 3. SECTION 21 OF THE ACT, AMENDED JUNE 11, 1998 5 (P.L.461, NO.66), IS AMENDED TO READ: 6 SECTION 21. (A) THE BOARD IS HEREBY AUTHORIZED TO RELEASE 7 ON PAROLE ANY CONVICT CONFINED IN ANY PENAL INSTITUTION OF THIS 8 COMMONWEALTH AS TO WHOM POWER TO PAROLE IS HEREIN GRANTED TO THE 9 BOARD, EXCEPT CONVICTS CONDEMNED TO DEATH OR SERVING LIFE 10 IMPRISONMENT, WHENEVER IN ITS OPINION THE BEST INTERESTS OF THE 11 CONVICT JUSTIFY OR REQUIRE HIS BEING PAROLED AND IT DOES NOT 12 APPEAR THAT THE INTERESTS OF THE COMMONWEALTH WILL BE INJURED 13 THEREBY. PAROLE SHALL BE SUBJECT IN EVERY INSTANCE TO THE 14 COMMONWEALTH'S RIGHT TO IMMEDIATELY RETAKE AND HOLD IN CUSTODY 15 WITHOUT FURTHER PROCEEDINGS ANY PAROLEE CHARGED AFTER HIS PAROLE 16 WITH AN ADDITIONAL OFFENSE, UNTIL A DETERMINATION CAN BE MADE 17 WHETHER TO CONTINUE HIS PAROLE STATUS. THE POWER TO PAROLE 18 HEREIN GRANTED TO THE BOARD OF PAROLE MAY NOT BE EXERCISED IN 19 THE BOARD'S DISCRETION AT ANY TIME BEFORE, BUT ONLY AFTER, THE 20 EXPIRATION OF THE MINIMUM TERM OF IMPRISONMENT FIXED BY THE 21 COURT IN ITS SENTENCE OR BY THE PARDON BOARD IN A SENTENCE WHICH 22 HAS BEEN REDUCED BY COMMUTATION. 23 (B) THE BOARD MAY NOT RELEASE A PERSON ON PAROLE UNLESS THE 24 PERSON ACHIEVES A NEGATIVE RESULT WITHIN FORTY-FIVE DAYS PRIOR 25 TO THE DATE OF RELEASE IN A SCREENING TEST APPROVED BY THE 26 DEPARTMENT OF HEALTH FOR THE DETECTION OF THE PRESENCE OF 27 CONTROLLED SUBSTANCES OR DESIGNER DRUGS UNDER THE ACT OF APRIL 28 14, 1972 (P.L.233, NO.64), KNOWN AS "THE CONTROLLED SUBSTANCE, 29 DRUG, DEVICE AND COSMETIC ACT." THE COST OF THESE PRE-PAROLE 30 DRUG SCREENING TESTS FOR INMATES SUBJECT TO THE PAROLE RELEASE 19980S1239B2273 - 6 -
1 JURISDICTION OF THE BOARD, WHETHER CONFINED IN A STATE OR LOCAL 2 CORRECTIONAL FACILITY, SHALL BE PAID BY THE BOARD. THE BOARD 3 SHALL ESTABLISH RULES AND REGULATIONS FOR THE PAYMENT OF THESE 4 COSTS AND MAY LIMIT THE TYPES AND COST OF THESE SCREENING TESTS 5 THAT WOULD BE SUBJECT TO PAYMENT BY THE BOARD. THE BOARD SHALL 6 ESTABLISH, AS A CONDITION OF CONTINUED PAROLE FOR A PAROLEE WHO, 7 AS AN INMATE, TESTED POSITIVE FOR THE PRESENCE OF A CONTROLLED 8 SUBSTANCE OR A DESIGNER DRUG OR WHO WAS PAROLED FROM A SENTENCE 9 ARISING FROM A CONVICTION UNDER "THE CONTROLLED SUBSTANCE, DRUG, 10 DEVICE AND COSMETIC ACT," OR FROM A DRUG-RELATED CRIME, THE 11 PAROLEE'S ACHIEVEMENT OF NEGATIVE RESULTS IN SUCH SCREENING 12 TESTS RANDOMLY APPLIED. THE RANDOM SCREENING TESTS SHALL BE 13 PERFORMED AT THE DISCRETION OF THE BOARD, AND THE PAROLEE 14 UNDERGOING THE TESTS SHALL BE RESPONSIBLE FOR THE COSTS OF THE 15 TESTS. THE FUNDS COLLECTED FOR THE TESTS SHALL BE APPLIED 16 AGAINST THE CONTRACT FOR SUCH TESTING BETWEEN THE BOARD AND A 17 TESTING LABORATORY APPROVED BY THE DEPARTMENT OF HEALTH. 18 (C) THE BOARD SHALL HAVE THE POWER DURING THE PERIOD FOR 19 WHICH A PERSON SHALL HAVE BEEN SENTENCED TO RECOMMIT ONE PAROLED 20 FOR VIOLATION OF THE TERMS AND CONDITIONS OF HIS PAROLE AND FROM 21 TIME TO TIME TO REPAROLE AND RECOMMIT IN THE SAME MANNER AND 22 WITH THE SAME PROCEDURE AS IN THE CASE OF AN ORIGINAL PAROLE OR 23 RECOMMITMENT, IF, IN THE JUDGMENT OF THE BOARD, THERE IS A 24 REASONABLE PROBABILITY THAT THE CONVICT WILL BE BENEFITED BY 25 AGAIN ACCORDING HIM LIBERTY AND IT DOES NOT APPEAR THAT THE 26 INTERESTS OF THE COMMONWEALTH WILL BE INJURED THEREBY. 27 (D) WHEN THE BOARD RELEASES A PAROLEE FROM A STATE OR LOCAL 28 CORRECTIONAL FACILITY, THE BOARD SHALL PROVIDE WRITTEN NOTICE TO 29 THE PROBATION DEPARTMENT LOCATED IN THE COUNTY WHERE THE 30 SENTENCING ORDER WAS IMPOSED OF THE RELEASE AND NEW ADDRESS OF 19980S1239B2273 - 7 -
1 THE PAROLEE. 2 Section 2 4. Section 21.1 of the act is amended by adding a <-- 3 subsection to read: 4 Section 21.1. * * * 5 (a.1) Subsequent Arrest. The formal filing of a charge after 6 parole against any parolee within this Commonwealth for any 7 violation of the statutes of this Commonwealth shall constitute 8 an automatic detainer and permit him to be taken into and held 9 in custody. The automatic detainer shall dissolve on the 10 fifteenth day after he is taken into custody, unless sooner 11 waived or otherwise superseded by direction of the supervising 12 parole office. The automatic detainer shall be in addition to 13 and not in lieu of any other detainer that heretofore may have 14 been lodged in such circumstances. 15 * * * 16 Section 3 5. Section 33 of the act, amended December 18, <-- 17 1996 (P.L.1098, No.164), is amended to read: 18 Section 33. (a) (1) In compliance with the Federal 19 Interstate Compact Laws and the provisions of this section, the 20 [Parole Board] Pennsylvania Board of Probation and Parole is 21 authorized to supervise persons paroled by other states and now 22 residing in Pennsylvania, where such other states agree to 23 perform similar services for the Pennsylvania Board of Probation 24 and Parole. 25 (2) Additionally, the [Parole Board] Pennsylvania Board of 26 Probation and Parole is authorized to relinquish jurisdiction 27 over a parolee to the proper Federal authorities where the 28 parolee is placed into the [Federal] Witness Protection Program 29 of the United States Department of Justice. 30 (b) The contracting states must adhere to Pennsylvania's <-- 19980S1239B2273 - 8 -
1 laws regarding the Interstate Compact, which are as follows: 2 (1) The contracting states solemnly agree that it is 3 competent for the duly constituted judicial and administrative 4 authorities of a state party to this compact, herein called 5 "sending state," to permit any person convicted of an offense 6 within such state and placed on probation or released on parole 7 to reside in any other state, herein called "receiving state," 8 while on probation or parole, if: 9 (i) a confirmed offer of viable employment or other 10 verifiable means of support exists; and 11 (ii) a residence approved by the receiving state is 12 available. 13 (2) The following information must be made available to the 14 receiving state from the sending state at the time the 15 application for acceptance to the receiving state is filed: 16 (i) Institutional adjustment information on parolees or 17 probationers. 18 (ii) Current supervision history on parolees or 19 probationers. 20 (iii) A psychological report or psychological update, 21 completed no more than one year prior to the receiving state's 22 consideration for persons convicted of a violent offense. 23 (iv) The following information must be made available to the 24 receiving state for those cases defined as a sexual offense: 25 (A) a summary of any type of treatment received and dates of 26 completion; and 27 (B) a description of behavioral characteristics that may 28 have contributed to the parolee or probationer's conduct. 29 (3) Any parolee or probationer convicted of a sexual offense 30 shall be required to: 19980S1239B2273 - 9 -
1 (i) submit to mandatory registration and public notification 2 of all current addresses with the Pennsylvania State Police; 3 (ii) provide a signed copy of Pennsylvania State Police 4 Sexual Offender Registration Notification form and Pennsylvania 5 State Police Sexual Offender Registration form to receiving 6 state; and 7 (iii) provide a signed copy of Addendum to Application for 8 Compact Services/Agreement to Return form to receiving state. 9 (4) Except as hereafter provided, the receiving state shall 10 not consider the acceptance of supervision if the parolee is 11 already physically present in this State. Investigation and 12 consideration of a case shall occur only after the parolee 13 returns to the sending state and proper application is filed. 14 The receiving state may consider the acceptance of supervision 15 if the probationer is already physically present in this State, 16 where the probationer has established domicile in the receiving 17 state before adjudication on the criminal offense. 18 (5) Electronic monitoring and/or other special conditions of 19 supervision shall be imposed as deemed necessary by the 20 receiving state. 21 (6) At the request of the receiving state, the sending state 22 shall agree to retake the parolee or probationer if that 23 individual violates any condition of probation or parole. 24 (c) (B) Any person who is on parole or probation in another <-- 25 state and who resides in this Commonwealth in violation of this 26 section commits a misdemeanor of the first degree and shall be 27 sentenced to pay a fine of not more than ten thousand dollars 28 ($10,000) or to imprisonment for not more than five years, or 29 both. 30 (d) As used in this section, the following words and phrases <-- 19980S1239B2273 - 10 -
1 shall have the meanings given to them in this subsection: 2 "Other verifiable means of support." The term includes, but 3 is not limited to, support by parent, grandparent, sibling, 4 spouse or adult child. The term shall not include public 5 assistance. 6 "Sexual offense." 7 (1) Any of the following or equivalent offenses that is 8 classified as a felony and involves a victim who is a minor: 9 18 Pa.C.S. § 2901 (relating to kidnapping). 10 18 Pa.C.S. § 5902(b) (relating to prostitution and 11 related offenses). 12 18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to 13 obscene and other sexual materials and performances). 14 (2) Any of the following or equivalent offenses that is 15 classified as a felony and involves a victim who is less than 16 thirteen years of age: 17 18 Pa.C.S. § 3126 (relating to indecent assault). 18 (3) Any of the following or equivalent offenses, regardless 19 of the victim's age: 20 18 Pa.C.S. § 3121 (relating to rape). 21 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual 22 intercourse). 23 18 Pa.C.S. § 3125 (relating to aggravated indecent 24 assault). 25 "Violent offense." Any of the following or equivalent 26 (C) AS USED IN THIS SECTION, THE TERM "VIOLENT OFFENSE" <-- 27 MEANS ANY OF THE FOLLOWING OR EQUIVALENT offenses: 28 18 Pa.C.S. § 2502 (relating to murder). 29 18 Pa.C.S. § 2503 (relating to voluntary manslaughter). 30 18 Pa.C.S. § 2702 (relating to aggravated assault). 19980S1239B2273 - 11 -
1 18 Pa.C.S. § 2703 (relating to assault by prisoner). 2 18 Pa.C.S. § 2704 (relating to assault by life prisoner). 3 18 Pa.C.S. § 2901 (relating to kidnapping) where the 4 victim is a minor. 5 18 Pa.C.S. § 3121 (relating to rape). 6 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual 7 intercourse). 8 18 Pa.C.S. § 3301 (relating to arson and related 9 offenses). 10 18 Pa.C.S. § 3502 (relating to burglary). 11 18 Pa.C.S. § 3701 (relating to robbery). 12 18 Pa.C.S. § 3923 (relating to theft by extortion) where 13 a threat of violence is made. 14 A criminal attempt, criminal solicitation or criminal 15 conspiracy to commit any offenses set forth in this clause. 16 Section 4 6. This act shall take effect in 60 days. <-- A6L44WMB/19980S1239B2273 - 12 -