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PRINTER'S NO. 381
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
430
Session of
2015
INTRODUCED BY HUGHES, TEPLITZ, FONTANA, TARTAGLIONE, VULAKOVICH,
BREWSTER, COSTA, GREENLEAF, SCHWANK AND BROWNE,
FEBRUARY 12, 2015
REFERRED TO JUDICIARY, FEBRUARY 12, 2015
AN ACT
Amending Title 61 (Prisons and Parole) of the Pennsylvania
Consolidated Statutes, in State intermediate punishment,
further providing for definitions, for referral to State
intermediate punishment program, for drug offender treatment
program and for written guidelines and regulations; imposing
duty on Department of Corrections; and further providing for
reports and for construction.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 4102 of Title 61 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 4102. Findings and purpose.
The General Assembly finds as follows:
(1) Many crimes are committed by persons who, because of
their addiction to drugs [or], alcohol or gambling, are
unable to maintain gainful employment.
(2) These persons often commit crimes as a means of
obtaining the funds necessary to purchase drugs or alcohol or
for gambling.
(3) Many persons commit crimes while under the influence
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of drugs or alcohol even though they are not addicted to such
substances in a clinical sense.
(4) Punishing persons who commit crimes is an important
aspect of recognizing the harm that criminals visit upon
their victims.
(5) Many people who commit crimes will be able to become
law-abiding, contributing members of society if they are able
to obtain treatment for their drug [or], alcohol or gambling
addiction or abuse.
(6) The purpose of this chapter is to create a program
that punishes persons who commit crimes, but also provides
treatment that offers the opportunity for those persons to
address their drug [or], alcohol or gambling addiction or
abuse and thereby reduce the incidents of recidivism and
enhance public safety.
Section 2. The definitions of "defendant," "drug offender
treatment program," "eligible offender," "expulsion,"
"individualized drug offender treatment plan," "institutional
therapeutic community" and "transitional residence" in section
4103 of Title 61 are amended and the section is amended by
adding definitions to read:
§ 4103. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Addicted offender treatment program." An individualized
treatment program established by the Department of Corrections
consisting primarily of drug and alcohol or gambling addiction
treatment that satisfies the terms and conditions listed in
section 4105 (relating to addicted offender treatment program).
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* * *
"Defendant." An individual charged with:
(1) a drug-related offense, including an individual
convicted of violating section 13(a)(14), (30) or (37) of the
act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, where
the sentence was imposed pursuant to 18 Pa.C.S. § 7508(a)(1)
(i), (2)(i), (3)(i), (4)(i) or (7)(i) (relating to drug
trafficking sentencing and penalties)[.]; or
(2) a gambling-related offense.
* * *
["Drug offender treatment program." An individualized
treatment program established by the Department of Corrections
consisting primarily of drug and alcohol addiction treatment
that satisfies the terms and conditions listed in section 4105
(relating to drug offender treatment program).]
* * *
"Eligible offender." Subject to 42 Pa.C.S. § 9721(a.1)
(relating to sentencing generally), a defendant designated by
the sentencing court as a person convicted of a drug-related
offense or gambling-related offense who:
(1) Has undergone an assessment performed by the
Department of Corrections, which assessment has concluded
that the defendant is in need of drug and alcohol or gambling
addiction treatment and would benefit from commitment to [a
drug] an addicted offender treatment program and that
placement in [a drug] an addicted offender treatment program
would be appropriate.
(2) Does not demonstrate a history of present or past
violent behavior.
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(3) Would be placed in the custody of the department if
not sentenced to State intermediate punishment.
(4) Provides written consent permitting release of
information pertaining to the defendant's participation in [a
drug] an addicted offender treatment program.
The term shall not include a defendant who is subject to a
sentence the calculation of which includes an enhancement for
the use of a deadly weapon, as defined pursuant to law or the
sentencing guidelines promulgated by the Pennsylvania Commission
on Sentencing, a defendant who has been convicted or adjudicated
delinquent of any crime requiring registration under 42 Pa.C.S.
Ch. 97 Subch. H (relating to registration of sexual offenders)
or a defendant with a current conviction or a prior conviction
within the past ten years for any of the following offenses:
18 Pa.C.S. § 2502 (relating to murder).
18 Pa.C.S. § 2503 (relating to voluntary manslaughter).
18 Pa.C.S. § 2506 (relating to drug delivery resulting in
death).
18 Pa.C.S. § 2901(a) (relating to kidnapping).
18 Pa.C.S. § 3301(a)(1)(i) (relating to arson and related
offenses).
18 Pa.C.S. § 3502 (relating to burglary), in the case of
burglary of a structure adapted for overnight accommodation
in which at the time of the offense any person is present.
18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
robbery).
18 Pa.C.S. § 3702 (relating to robbery of motor vehicle).
18 Pa.C.S. § 7508 (a)(1)(iii), (2)(iii), (3)(iii) or (4)
(iii) (relating to drug trafficking sentencing and
penalties).
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"Expulsion." The permanent removal of a participant from [a
drug] an addicted offender treatment program.
"Gambling-related offense." A criminal offense for which a
defendant is convicted and that the court determines was
motivated by the defendant's addiction to gambling.
* * *
["Individualized drug offender treatment plan." An
individualized addiction treatment plan within the framework of
the drug offender treatment program.]
"Individualized addicted offender treatment plan." An
individualized addiction treatment plan within the framework of
the addicted offender treatment program.
"Institutional therapeutic community." A residential drug or
gambling treatment program in a State correctional institution,
accredited as a therapeutic community for treatment of drug and
alcohol abuse and addiction or gambling addiction by the
American Correctional Association or other nationally recognized
accreditation organization for therapeutic community drug and
alcohol or gambling addiction treatment.
* * *
"Transitional residence." A residence investigated and
approved by the Department of Corrections as appropriate for
housing a participant in [a drug] an addicted offender treatment
program.
Section 3. Sections 4104, 4105, 4106, 4107 and 4108 of Title
61 are amended to read:
§ 4104. Referral to State intermediate punishment program.
(a) Referral for evaluation.--
(1) Prior to imposing a sentence, the court may, upon
motion of the Commonwealth, commit a defendant to the custody
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of the department for the purpose of evaluating whether the
defendant would benefit from [a drug] an addicted offender
treatment program and whether placement in the [drug]
addicted offender treatment program is appropriate.
(1.1) (i) The prosecuting attorney, in the prosecuting
attorney's sole discretion, may advise the court that the
Commonwealth has elected to waive the eligibility
requirements of this chapter if the victim has been given
notice of the prosecuting attorney's intent to waive the
eligibility requirements and an opportunity to be heard
on the issue.
(ii) The court, after considering victim input, may
refuse to accept the prosecuting attorney's waiver of the
eligibility requirements.
(2) Upon committing a defendant to the department, the
court shall forward to the department:
(i) A summary of the offense for which the defendant
has been convicted.
(ii) Information relating to the defendant's history
of delinquency or criminality, including the information
maintained by the court under 42 Pa.C.S. Ch. 63 (relating
to juvenile matters), when available.
(iii) Information relating to the defendant's
history of drug or alcohol or gambling abuse or
addiction, when available.
(iv) A presentence investigation report, when
available.
(v) Any other information the court deems relevant
to assist the department with its assessment of the
defendant.
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(b) Assessment of addiction.--
(1) The department shall conduct an assessment of the
addiction and other treatment needs of a defendant and
determine whether the defendant would benefit from [a drug]
an addicted offender treatment program. The assessment shall
be conducted using a nationally recognized assessment
instrument or an instrument that has been normed and
validated on the department's inmate population by a
recognized expert in such matters. The assessment instrument
shall be administered by persons skilled in the treatment of
drug and alcohol addiction or gambling addiction and trained
to conduct assessments. The assessments shall be reviewed and
approved by a supervisor with at least three years of
experience providing drug and alcohol or gambling counseling
services.
(2) The department shall conduct risk and other
assessments it deems appropriate and shall provide a report
of its assessments to the court, the defendant, the attorney
for the Commonwealth and the commission within 60 days of the
court's commitment of the defendant to the custody of the
department.
(c) Proposed [drug] addicted offender treatment program.--If
the department in its discretion believes a defendant would
benefit from [a drug] an addicted offender treatment program and
placement in the [drug] addicted offender treatment program is
appropriate, the department shall provide the court, the
defendant, the attorney for the Commonwealth and the commission
with a proposed [drug] addicted offender treatment program
detailing the type of treatment proposed.
(d) Prerequisites for commitment.--Upon receipt of a
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recommendation for placement in [a drug] an addicted offender
treatment program from the department and agreement of the
attorney for the Commonwealth, the court may sentence an
eligible offender to a period of 24 months of State intermediate
punishment if the court finds that:
(1) The eligible offender is likely to benefit from
State intermediate punishment.
(2) Public safety would be enhanced by the eligible
offender's participation in State intermediate punishment.
(3) Sentencing the eligible offender to State
intermediate punishment would not depreciate the seriousness
of the offense.
(e) Resentencing.--The department may make a written request
to the sentencing court that an offender who is otherwise
eligible but has not been referred for evaluation or originally
sentenced to State intermediate punishment be sentenced to State
intermediate punishment. The court may resentence the offender
to State intermediate punishment if all of the following apply:
(1) The department has recommended placement in [a drug]
an addicted offender treatment program.
(2) The attorney for the Commonwealth and the offender
have agreed to the placement and modification of sentence.
(3) The court makes the findings set forth under
subsection (d).
(4) The resentencing has occurred within 365 days of the
date of the defendant's admission to the custody of the
department.
(5) The court has otherwise complied with all other
requirements for the imposition of sentence including victim
notification under the act of November 24, 1998 (P.L.882, No.
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111), known as the Crime Victims Act.
(f) Consecutive probation.--Nothing in this chapter shall
prohibit the court from sentencing an eligible offender to a
consecutive period of probation. The total duration of the
sentence may not exceed the maximum term for which the eligible
offender could otherwise be sentenced.
(g) Applicability and program limitations.--The court may
not modify or alter the terms of the department's proposed
individualized [drug] addicted offender treatment plan without
the agreement of the department and the attorney for the
Commonwealth.
(h) Videoconferencing.--The department shall make
videoconferencing facilities available to allow the court to
conduct proceedings necessary under this section when the
eligible offender has been committed to the custody of the
department pursuant to subsection (b).
(i) Victims.--Victims of personal injury crimes shall be
given the opportunity to receive notice of and to provide prior
comment on any recommendation by the department under subsection
(b) or (d) that the offender participate in the State
Intermediate Punishment Program.
(j) Definitions.--As used in this section, the term
"personal injury crime" shall be defined as in section 103 of
the act of November 24, 1998 (P.L.882, No.111), known as the
Crime Victims Act.
§ 4105. [Drug] Addicted offender treatment program.
(a) Establishment.--The department shall establish and
administer [a drug] an addicted offender treatment program as a
State intermediate punishment. The program shall be designed to
address the individually assessed drug and alcohol or gambling
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abuse and addiction needs of a participant and shall address
other issues essential to the participant's successful
reintegration into the community, including, but not limited to,
educational and employment issues.
(b) Duration and components.--Notwithstanding any credit to
which the defendant may be entitled under 42 Pa.C.S. § 9760
(relating to credit for time served), the duration of the [drug]
addicted offender treatment program shall be 24 months and shall
include the following:
(1) A period in a State correctional institution of not
less than seven months. This period shall include:
(i) The time during which the defendants are being
evaluated by the department under section 4104(b)
(relating to referral to State intermediate punishment
program).
(ii) Following evaluation under subparagraph (i),
not less than four months shall be in an institutional
therapeutic community.
(2) A period of treatment in a community-based
therapeutic community of at least two months.
(3) A period of at least six-months' treatment through
an outpatient addiction treatment facility. During the
outpatient addiction treatment period of the [drug] addicted
offender treatment program, the participant may be housed in
a community corrections center or group home or placed in an
approved transitional residence. The participant must comply
with any conditions established by the department regardless
of where the participant resides during the outpatient
addiction treatment portion of the [drug] addicted offender
treatment program.
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(4) A period of supervised reintegration into the
community for the balance of the [drug] addicted offender
treatment program, during which the participant shall
continue to be supervised by the department and comply with
any conditions imposed by the department.
(c) Program management.--
(1) Consistent with the minimum time requirements set
forth in subsection (b), the department may transfer, at its
discretion, a participant between a State correctional
institution, an institutional therapeutic community, a
community-based therapeutic community, an outpatient
addiction treatment program and an approved transitional
residence. The department may also transfer a participant
back and forth between less restrictive and more restrictive
settings based upon the participant's progress or regression
in treatment or for medical, disciplinary or other
administrative reasons.
(2) This subsection shall be construed to provide the
department with the maximum flexibility to administer the
[drug] addicted offender treatment program both as a whole
and for individual participants.
(d) Right of refusal to admit.--The administrator of a
community-based therapeutic community or outpatient addiction
treatment facility may refuse to accept a participant whom the
administrator deems to be inappropriate for admission and may
immediately discharge to the custody of the department any
participant who fails to comply with facility rules and
treatment expectations or refuses to constructively engage in
the treatment process.
(e) Notice to court of completion of program.--When the
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department determines that a participant has successfully
completed the [drug] addicted offender treatment program, it
shall notify the sentencing court, the attorney for the
Commonwealth and the commission.
(f) Expulsion from program.--
(1) A participant may be expelled from the [drug]
addicted offender treatment program at any time in accordance
with guidelines established by the department, including
failure to comply with administrative or disciplinary
procedures or requirements set forth by the department.
(2) The department shall promptly notify the court, the
defendant, the attorney for the Commonwealth and the
commission of the expulsion of a participant from the [drug]
addicted offender treatment program and the reason for such
expulsion. The participant shall be housed in a State
correctional institution or county jail pending action by the
court.
(3) The court shall schedule a prompt State intermediate
punishment revocation hearing pursuant to 42 Pa.C.S. § 9774
(relating to revocation of State intermediate punishment
sentence).
§ 4106. Written guidelines and regulations.
The department shall develop written guidelines for
participant selection criteria and the establishment of [drug]
addicted offender treatment program selection committees within
each diagnostic and classification center of the department and
shall address suspensions and expulsions from the drug offender
treatment program. The guidelines shall not be subject to the
act of June 25, 1982 (P.L.633, No.181), known as the Regulatory
Review Act, and shall be effective for a period of two years
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upon publication in the Pennsylvania Bulletin. The guidelines
shall be replaced by regulations promulgated by the department
consistent with the Regulatory Review Act within the two-year
period during which the guidelines are effective. The
regulations shall include a requirement that community-based
therapeutic communities utilized in the [drug] addicted offender
treatment program be accredited as a therapeutic community for
treatment of drug and alcohol or gambling abuse and addiction by
the Commission on Accreditation of Rehabilitation Facilities or
other nationally recognized accreditation organization for
community-based therapeutic communities for drug and alcohol or
gambling addiction treatment.
§ 4107. Reports.
(a) Final report.--The department shall provide a final
report to the court, the defendant, the attorney for the
Commonwealth and the commission on a participant's progress in
the [drug] addicted offender treatment program.
(b) Evaluation and report to General Assembly.--The
department and the commission shall monitor and evaluate the
drug offender treatment program to ensure that the programmatic
objectives are met. In odd-numbered years, the department shall
present a report of its evaluation to the Judiciary Committee of
the Senate and the Judiciary Committee of the House of
Representatives no later than February 1. In even-numbered
years, the commission shall present a report of its evaluation
to the Judiciary Committee of the Senate and the Judiciary
Committee of the House of Representatives no later than February
1. The report shall include:
(1) The number of offenders evaluated for the [drug]
addicted offender treatment program.
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(2) The number of offenders sentenced to the [drug]
addicted offender treatment program.
(3) The number of offenders sentenced to a State
correctional institution who may have been eligible for the
[drug] addicted offender treatment program.
(4) The number of offenders successfully completing the
[drug] addicted offender treatment program.
(5) The six-month, one-year, three-year and five-year
recidivism rates for offenders who have completed the [drug]
addicted offender treatment program and for a comparison
group of offenders who were not placed in the [drug] addicted
offender treatment program.
(6) Any changes the department or the commission
believes will make the [drug] addicted offender treatment
program more effective.
§ 4108. Construction.
Notwithstanding any other provision of law to the contrary,
this chapter shall not be construed to:
(1) Confer any legal right upon any individual,
including an individual participating in the [drug] addicted
offender treatment program, to:
(i) participate in [a drug] an addicted offender
treatment program;
(ii) continue participation in [a drug] an addicted
offender treatment program;
(iii) modify the contents of the [drug] addicted
offender treatment program; or
(iv) file any cause of action in any court
challenging the department's determination that a
participant is to be suspended or expelled from or that a
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participant has successfully completed or failed to
successfully complete treatment to be provided during any
portion of [a drug] an addicted offender treatment
program.
(2) Enlarge or limit the right of a participant to
appeal the participant's sentence.
Section 4. This act shall take effect in 60 days.
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