THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY CALTAGIRONE, SOLOBAY, O'NEILL, MANDERINO, ARGALL, BEAR, BEYER, BRENNAN, CARROLL, CREIGHTON, CUTLER, DRUCKER, FRANKEL, GIBBONS, JOSEPHS, KORTZ, KOTIK, KULA, LONGIETTI, MANN, MENSCH, MILLARD, MILNE, MOUL, PASHINSKI, PAYNE, PRESTON, SANTONI, SIPTROTH, STABACK, SWANGER, VULAKOVICH, WALKO, WHITE, THOMAS, QUINN AND MURT, FEBRUARY 2, 2009

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, MARCH 17, 2009   

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) and

codifying Title 61 (Penal and Correctional Institutions) of

the Pennsylvania Consolidated Statutes, providing for

temporary release from county correctional institutions, for

parole without board supervision, for judicial power to

release inmates and for transfers of inmates needing medical

care; further providing for State intermediate punishment;

providing for other criminal provisions; amending the heading

of Title 61; adding definitions, provisions relating to

general administration of correctional institutions, State

correctional institutions, county correctional institutions,

the Philadelphia County Prison, house of detention for

untried inmates and witnesses, inmate labor, medical

services, visitation, motivational boot camp, execution

procedure and method, ricidivism recidivism risk reduction

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incentives, miscellaneous matters relating thereto, probation

and parole generally, the Pennsylvania Board of Probation and

Parole, County Probation and Parole Officers' Firearm

Education and Training and correctional institution

interstate compacts; and making conforming amendments,

editorial changes and repeals relating to codification.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 2154.4, 2154.5 and 2154.6 of Title 42 of

the Pennsylvania Consolidated Statutes, amended or added

September 25, 2008 (P.L.1026, No.81), are amended to read:

§ 2154.4.  Adoption of guidelines for resentencing.

The commission shall adopt guidelines that shall be

considered by the court when resentencing an offender following

revocation of probation, county intermediate punishment or State

intermediate punishment. The guidelines shall take into account

[factors]:

(1)  Factors considered in adopting the sentencing

guidelines[, the].

(2)  The seriousness of the violation [and the].

(3)  The rehabilitative needs of the defendant.

§ 2154.5.  Adoption of guidelines for parole.

(a)  Adoption.--The commission shall adopt guidelines that

shall be considered by the board and any other paroling entity

when exercising its power to parole and reparole all persons

sentenced by any court in this Commonwealth to imprisonment in

any [State or county penitentiary, prison or penal institution] 

correctional institution. The guidelines shall do all of the

following:

(1)  Give primary consideration to the protection of the

public and to victim safety.

(2)  Provide for due consideration of victim input.

(3)  Be designed to encourage inmates and parolees to

conduct themselves in accordance with conditions and rules of

conduct set forth by the department or other prison

facilities and the board.

(4)  Be designed to encourage inmates and parolees to 

participate in programs that have been demonstrated to be

effective in reducing recidivism, including appropriate drug

and alcohol treatment programs.

(5)  Provide for prioritization of incarceration,

rehabilitation and other criminal justice resources for

offenders posing the greatest risk to public safety.

(6)  Use validated risk assessment tools, be evidence

based and take into account available research relating to

the risk of recidivism, minimizing the threat posed to public

safety and factors maximizing the success of reentry.

(b)  Discretionary authority.--Notwithstanding any other

provision of law, this section shall not remove the

discretionary parole authority of the board and any other

paroling entity when exercising its power to parole and

reparole.

§ 2154.6.  Adoption of recommitment ranges following revocation

of parole by board.

(a)  Recommitment ranges.--The commission shall adopt

recommitment ranges that shall be considered by the board when

exercising its power to reparole, commit and recommit for

violations of parole any person sentenced by a court in this

Commonwealth to imprisonment in any [prison or penal institution

of this Commonwealth, including State or county penitentiaries,

prisons or penal institutions] correctional institution. The

recommitment ranges shall take into account the seriousness of

the initial conviction offense, the level of seriousness of the

violation and the rehabilitative needs of the defendant. At the

end of the recommittal period, the parole violator shall be

reviewed for parole or, without further review, shall be

reparoled.

(b)  Deviation.--In every case in which the board deviates

from the recommitment ranges, the board shall provide a

contemporaneous written statement of the reasons for the

deviation from the recommitment ranges to the commission as

established under section 2153(a)(14) (relating to powers and

duties).

(c)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Recommitment range."  A range of time within which a parole

violator may be recommitted to serve an additional part of the

term the parole violator would have been compelled to serve had

the parole violator not been paroled.

Section 2.  Title 42 is amended by adding a section to read:

§ 9755.1.  Temporary release from county correctional

institution.

(a)  (Reserved).

(b)  Surrender of wages.--When an inmate is employed for

wages or salary, the chief administrator of the county

correctional institution shall collect the wages or salary or

require the inmate to turn over his wages or salary in full when

received, and the chief administrator shall deposit the same in

a trust checking account and keep a ledger showing the status of

the account of each inmate.

(c)  Liability for board cost.--

(1)  An inmate gainfully employed shall be liable for the

cost of his board in the county correctional institution as

fixed by the county commissioners. If necessarily absent from

jail at a meal time, the inmate shall, at his request, be

furnished with an adequate nourishing lunch to carry to work.

(2)  The chief administrator of the county correctional

institution shall charge the inmate's account if the inmate

has one for such board.

(3)  If the inmate is gainfully self-employed, the inmate

shall pay for such board in default of which his privilege

under this section shall be automatically forfeited.

(4)  If the food in the county correctional institution

is furnished directly by the county, the chief administrator

of the county correctional institution shall account for and

pay over such board payments to the county treasurer.

(d)  Disbursements from inmate accounts.--By order of the

court, the wages or salaries of employed inmates shall be

disbursed for the following purposes in the order stated:

(1)  The board of the inmate.

(2)  Necessary travel expense to and from work and other

incidental expenses of the inmate.

(3)  Support of the inmate's dependents, if any, the

amount to be determined by the court.

(4)  Payment of docket costs connected with the

commitment of the inmate.

(5)  Payment either in full or ratably of the inmate's

obligations acknowledged by him in writing or which have been

reduced to judgment.

(6)  The balance, if any, to the inmate upon discharge.

(e)  Intercounty custody.--The court may by order authorize

the chief administrator of a county correctional institution to

which an inmate is committed to arrange with the chief

administrator of another county correctional institution for the

employment of the prisoner in the other's county and while so

employed to be in the other's custody but in other respects to

be and continue subject to the commitment.

Section 3.  Section 9756(b), (b.1) and (e) of Title 42,

amended or added September 25, 2008 (P.L.1026, No.81), are

amended to read:

§ 9756.  Sentence of total confinement.

* * *

(b)  Minimum sentence.--

(1)  The court shall impose a minimum sentence of

confinement which shall not exceed one-half of the maximum

sentence imposed.

(2)  The minimum sentence imposed under this section may

not be reduced through parole prior to the expiration of the

minimum sentence unless otherwise authorized by this section

or other law.

(3)  Except where the maximum sentence imposed is two

years or more, and except where a mandatory minimum sentence

of imprisonment or total confinement is required by law, the

court shall, at the time of sentencing, state whether or not

the defendant is eligible to participate in a reentry plan at

any time prior to the expiration of the minimum sentence or

at the expiration of a specified portion of the minimum

sentence. For maximum sentences of less than two years as

defined under section 9762(f) (relating to sentencing

proceeding; place of confinement), a court may parole a

defendant prior to the expiration of the minimum sentence

only if the defendant was made eligible to participate in a

reentry plan at the time of sentencing. The court shall

provide at least ten days' written notice and an opportunity

to be heard[, pursuant to the act of June 19, 1911 (P.L.1059,

No.813), referred to as the County Jail and Workhouse Parole

Law,] under section 9776 (relating to judicial power to

release inmates) to the prosecuting attorney before granting

parole [pursuant to] under this subsection. The reentry plan

eligibility shall be considered a part of the sentence and

subject to the requirements relating to the entry, recording

and reporting of sentences.

(b.1)  Recidivism risk reduction incentive minimum

sentence.--The court shall determine if the defendant is

eligible for a recidivism risk reduction incentive minimum

sentence under [44 Pa.C.S. Ch. 53 (relating to recidivism risk

reduction incentive)] 61 Pa.C.S. Ch. 45 (relating to recidivism

risk reduction incentive). If the defendant is eligible, the

court shall impose a recidivism risk reduction incentive minimum

sentence in addition to a minimum sentence and maximum sentence

except, if the defendant was previously sentenced to two or more

recidivism risk reduction incentive minimum sentences, the court

shall have the discretion to impose a sentence with no

recidivism risk reduction incentive minimum.

* * *

(e)  Definitions.--As used in this section, the term "reentry

plan" is a release plan that may include drug and alcohol

treatment, behavioral health treatment, job training, skills

training, education, life skills or any other [conditions]

condition deemed relevant by the court.

Section 4.  Title 42 is amended by adding sections to read:

§ 9775.  Parole without board supervision.

A sentencing court shall grant parole from a term of

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imprisonment for less than a maximum period of two years, and,

together with all probations except probation as to which

supervision is specially ordered by the court as provided for in

section 9721 (relating to sentencing generally), parole shall be

without supervision by the board.Parole from imprisonment for

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less than a maximum period of two years shall be granted only by

the sentencing court and shall, together with all probation

except probation as to which supervision is specially ordered by

the court as provided for in section 9721 (relating to

sentencing generally), be without supervision by the board.

§ 9776.  Judicial power to release inmates.

(a)  General rule.--Except as otherwise provided under this

chapter or if the Pennsylvania Board of Probation and Parole has

exclusive parole jurisdiction, a court of this Commonwealth or

other court of record having jurisdiction may, after due

hearing, release on parole an inmate in the county correctional

institution of that judicial district.

(b)  Petition required.--No inmate may be paroled under this

section except on petition verified by the oath of the inmate or

by the inmate's representative and presented and filed in the

court in which the inmate was convicted.

(c)  Hearing.--On presentation of the petition, the court

shall fix a day for the hearing. A copy of the petition shall be

served on the district attorney and prosecutor in the case at

least ten days before the day fixed for the hearing. Proof of

service on the district attorney, and the prosecutor shall be

produced at the hearing.

(d)  Order.--After the hearing, the court shall make such

order as it may deem just and proper. In case the court paroles

the inmate, it shall place the inmate in the charge of and under

the supervision of a designated probation officer.

(e)  Recommit.--The court may, on cause shown by the

probation officer that the inmate has violated his parole,

recommit and reparole the inmate in the same manner and by the

same procedure as in the case of the original parole if, in the

judgment of the court, there is a reasonable probability that

the inmate will benefit by being paroled. The court may also

recommit for violation of that parole.

(f)  Limitation.--

(1)  Subject to the provisions of paragraph (2), the

power of a court to parole an inmate under this section shall

extend for a period not to exceed the maximum sentence

provided by law for the offense of which the inmate was

convicted.

(2)  A court may release on parole, on petition to any

other court, an inmate committed to a correctional

institution by any magisterial district judge and shall have

the same power to recommit an inmate paroled under this

section.

§ 9777.  Transfer of inmates in need of medical treatment.

(a)  Inmates committed to custody of department.--If an

inmate is committed to the custody of the department, the

department, the inmate or a person to whom the court grants

standing to act on behalf of the inmate may petition the

sentencing court to temporarily defer service of the sentence of

confinement and temporarily remove the inmate committed to the

custody of the department, or other facilities, for placement in

a hospital, long-term care nursing facility or hospice care

location. The following shall apply:

(1)  The sentencing court may approve the petitioner's

request to temporarily defer service of the sentence of

confinement and place the inmate in a hospital or long-term

care nursing facility under electronic monitoring by the

department upon clear and convincing proof that all of the

following apply:

(i)  The medical needs of the inmate can be more

appropriately addressed in the hospital or long-term care

nursing facility.

(ii)  The hospital or long-term care nursing facility

requested by the petitioner has agreed to accept the

placement of the inmate and to provide necessary medical

care.

(iii)  The inmate is seriously ill and is expected by

a treating physician to not live for more than one year.

(iv)  There are no writs filed or detainers lodged

against the inmate and the inmate is not subject to any

court order requiring the inmate's presence.

(v)  The placement in the hospital or long-term care

nursing facility does not pose an undue risk of escape or

danger to the community. In making this determination the

sentencing court shall consider the inmate's

institutional conduct record, whether the inmate was ever

convicted of a crime of violence, the length of time that

the inmate has been imprisoned and any other factors the

sentencing court deems relevant.

(vi)  The hospital or long-term care nursing facility

has agreed to notify the department and the court of any

material changes in the health status of the inmate, the

nature of the care provided or other information required

by the department.

(vii)  Each agency representing the Commonwealth at a

proceeding which resulted in an order committing or

detaining the inmate, the State or local correctional

facility housing the inmate and any registered crime

victim have been given notice and an opportunity to be

heard on the petition.

(2)  The sentencing court may approve the petitioner's

request to temporarily defer service of the sentence of

confinement in order for the inmate to receive care from a

licensed hospice care provider, proposed by the petitioner

and subject to electronic monitoring by the department if all

of the following are established by clear and convincing

proof:

(i)  The inmate is terminally ill, not ambulatory and

likely to die in the near future.

(ii)  The licensed hospice care provider can provide

the inmate with more appropriate care.

(iii)  Appropriate medical care and palliative and

supportive services will be provided by the licensed

hospice care provider at the proposed hospice care

location.

(iv)  The placement of the inmate in the proposed

licensed hospice care location does not pose an undue

risk of escape or danger to the community. In making this

determination the sentencing court shall consider the

inmate's institutional conduct record, whether the inmate

was ever convicted of a crime of violence, the length of

time that the inmate has been imprisoned and any other

factors the sentencing court deems relevant.

(v)  The licensed hospice care provider has agreed to

notify the department and the sentencing court of any

material changes in the health status of the inmate, the

nature of the hospice care provided or other information

required by the department or the sentencing court.

(vi)  Each agency representing the Commonwealth at a

proceeding which resulted in an order committing or

detaining the inmate, the State or local correctional

facility housing the inmate and any registered crime

victim have been given notice and an opportunity to be

heard on the petition.

(3)  Any order entered under this subsection temporarily

deferring service of a inmate's sentence of confinement shall

include a provision that the department or prosecuting

attorney may at any time petition the sentencing court for an

order directing that the inmate be recommitted to the custody

of the department if the circumstances under which the inmate

was released change or for any previously unknown

circumstances, including a change in the inmate's medical

status, the inmate's risk of escape, the inmate's danger to

the community or the nature of the medical or other care

provided by the hospital, long-term care nursing facility or

hospice care provider.

(4)  The sentencing court may terminate at any time its

order authorizing the temporary deferral of the service of an

inmate's sentence of confinement entered pursuant to this

subsection. An inmate taken into custody pursuant to an order

directing the inmate's detention or recommitment under this

subsection shall be delivered to the nearest State

correctional institution pending a hearing on the matter.

(b)  Inmates committed to custody of other facilities.--An

inmate not committed to the custody of the department but

confined in an institution authorized to incarcerate or detain

persons for criminal sentences, violations of criminal law or

orders of parole, probation, bail or other order related to a

civil or criminal matter may have service of the sentence of

confinement deferred and may be placed in a hospital, long-term

care nursing facility or licensed hospice care location, subject

to electronic monitoring, by order of the judge that committed

the inmate to the facility or institution or by another

available judge designated to preside if all of the following

are established by clear and convincing proof:

(1)  The chief administrator, the chief administrator's

designee, the inmate or a person to whom the court grants

standing to act on behalf of the inmate petitions the court

or has given written consent to the grant of a petition under

this section filed on behalf of the inmate.

(2)  There is sufficient proof to establish the

requirements for a placement to a hospital or long-term care

nursing facility under subsection (a)(1) or a placement to a

hospice care location under subsection (a)(2).

(3)  An entry of an order under this subsection

temporarily deferring service of an inmate's sentence of

confinement shall include a provision that the chief

administrator or the prosecuting attorney may at any time

petition the sentencing court seeking the issuance of a bench

warrant directing that the inmate be recommitted to the

custody of the appropriate correctional institution if the

circumstances under which the inmate was released change or

for previously unknown circumstances, including a change in

the inmate's medical status, the inmate's risk of escape, the

inmate's danger to the community or the nature of the medical

or other care provided by the hospital, long-term care

nursing facility or hospice care provider.

(4)  The sentencing court may terminate at any time its

order authorizing the temporary deferral of the service of an

inmate's sentence of confinement entered under this

subsection. An inmate taken into custody under an order

directing detention or recommitment under this subsection

shall be delivered to the county correctional institution or

other institution at which the inmate was confined prior to

the entry of the order deferring the service of the sentence

of confinement pending a hearing on the matter.

(c)  Service.--Any petition filed under this section shall be

served on each agency representing the Commonwealth at each

proceeding which resulted in an order by which the inmate is

committed or detained and to the correctional institution or

institution responsible for housing the inmate. Each party shall

have an opportunity to object and be heard as to the petition

for alternative placement, the circumstances of placement, the

conditions of return or any other relevant issue. The court

shall ensure that any crime victim entitled to notification

under section 201(7) or (8) of the act of November 24, 1998

(P.L.882, No.111), known as the Crime Victims Act, has been

given notice and the opportunity to be heard on the petition.

All parties served or notified under this subsection shall

receive a copy of the final order adjudicating the petition.

(d)  Notice.--

(1)  Any order entered under this section placing an

inmate in a hospital, long-term care nursing facility or

hospice care location which provides care to persons who were

not placed therein under an order entered under this section

shall direct the individual in charge of the hospital, long-

term care nursing facility or hospice care location to ensure

that each person receiving care at, and each employee or

contractor working in, the hospital, long-term care nursing

facility or hospice care location is notified that the

placement was ordered if it is foreseeable that the person,

employee or contractor will come into contact with the inmate

during the placement.

(2)  The sentencing court shall forward notice of any

order entered under this section placing an inmate in a

hospital, long-term care nursing facility or hospice care

location to the hospital, long-term care nursing facility or

hospice care location and to the Department of Public

Welfare.

(e)  Petition requirements.--Any petition filed under this

section must aver:

(1)  The name of the hospital, long-term care nursing

facility or hospice care location proposed for placement.

(2)  That the petitioner reasonably believes the named

hospital, long-term care nursing facility or hospice care

location has agreed to accept the placement of the inmate and

the facts upon which that belief is based.

(f)  Removal from placement.--If an inmate placed in a

hospital, long-term care nursing facility or hospice care

location under this chapter removes himself from the hospital,

long-term care nursing facility or hospice care location, the

inmate shall be subject to arrest upon probable cause and shall,

upon conviction thereof, be guilty of criminal contempt.

(g)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Chief administrator."  The term as defined under 61 Pa.C.S.

§ 102 (relating to definitions).

"Department."  The Department of Corrections of the

Commonwealth.

"Hospice care location."  A home, independent living

environment or inpatient setting that provides a coordinated

program of palliative and supportive services through a licensed

hospice care provider.

"Hospital."  An entity licensed as an acute-care general

hospital, a specialty hospital or a rehabilitation hospital

under the act of July 19, 1979 (P.L.130, No.48), known as the

Health Care Facilities Act.

"Licensed hospice care provider."  A hospice as defined under

section 802.1 of the act of July 19, 1979 (P.L.130, No.48),

known as the Health Care Facilities Act.

"Long-term care nursing facility."  A long-term care nursing

facility as defined under section 802.1 of the act of July 19,

1979 (P.L.130, No.48), known as the Health Care Facilities Act.

"Prosecuting attorney."  The Office of Attorney General or

the office of a district attorney of a county who represented

the Commonwealth at the most recent sentencing of an inmate.

"Sentencing court."  The trial judge who most recently

sentenced an inmate or, if the trial judge is no longer serving

as a judge of that court, the president judge of the county

court of common pleas.

Section 5.  Chapter 99 of Title 42 is repealed:

[CHAPTER 99

STATE INTERMEDIATE PUNISHMENT

Sec.

9901.  Scope of chapter.

9902.  Findings and purpose.

9903.  Definitions.

9904.  Referral to State intermediate punishment program.

9905.  Drug offender treatment program.

9906.  Written guidelines and regulations.

9907.  Reports.

9908.  Construction.

9909.  Evaluation.

§ 9901.  Scope of chapter.

This chapter relates to State intermediate punishment.

§ 9902.  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, 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.

(3)  Many persons commit crimes while under the influence

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 addiction or

abuse.

(6)  The purpose of this chapter is to create a program

that punishes person who commit crimes, but also provides

treatment that offers the opportunity for those persons to

address their drug or alcohol addiction or abuse and thereby

reduce the incidents of recidivism and enhance public safety.

§ 9903.  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:

"Commission."  The Pennsylvania Commission on Sentencing.

"Community-based therapeutic community."  A long-term

residential addiction treatment program licensed by the

Department of Health to provide addiction treatment services

using a therapeutic community model and determined by the

Department of Corrections to be qualified to provide addiction

treatment to eligible offenders.

"Community corrections center."  A residential program that

is supervised and operated by the Department of Corrections for

inmates with prerelease status or who are on parole.

"Court."  The trial judge exercising sentencing jurisdiction

over an eligible offender under this chapter or the president

judge if the original trial judge is no longer serving as a

judge of the sentencing court.

"Defendant."  An individual charged with a drug-related

offense.

"Department."  The Department of Corrections of the

Commonwealth.

"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 9905

(relating to drug offender treatment program).

"Drug-related offense."  A criminal offense for which a

defendant is convicted and that the court determines was

motivated by the defendant's consumption of or addiction to

alcohol or a controlled substance, counterfeit, designer drug,

drug, immediate precursor or marihuana, as those terms are

defined in the act of April 14, 1972 (P.L.233, No.64), known as

The Controlled Substance, Drug, Device and Cosmetic Act.

"Eligible offender."  Subject to section 9721(a.1) (relating

to sentencing generally), a defendant designated by the

sentencing court as a person convicted of a drug-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 addiction

treatment and would benefit from commitment to a drug

offender treatment program and that placement in a drug

offender treatment program would be appropriate.

(2)  Does not demonstrate a history of present or past

violent behavior.

(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 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, or a defendant who has been convicted of a

personal injury crime as defined in section 103 of the act of

November 24, 1998 (P.L.882, No.111), known as the Crime Victims

Act, or an attempt or conspiracy to commit such a crime or who

has been convicted of violating 18 Pa.C.S. § 4302 (relating to

incest), 5901 (relating to open lewdness), 6312 (relating to

sexual abuse of children), 6318 (relating to unlawful contact

with minor) or 6320 (relating to sexual exploitation of

children) or Ch. 76 Subch. C (relating to Internet child

pornography).

"Expulsion."  The permanent removal of a participant from a

drug offender treatment program.

"Group home."  A residential program that is contracted out

by the Department of Corrections to a private service provider

for inmates with prerelease status or who are on parole.

"Individualized drug offender treatment plan."  An

individualized addiction treatment plan within the framework of

the drug offender treatment program.

"Institutional therapeutic community."  A residential drug

treatment program in a State correctional institution,

accredited as a therapeutic community for treatment of drug and

alcohol abuse and addiction by the American Correctional

Association or other nationally recognized accreditation

organization for therapeutic community drug and alcohol

addiction treatment.

"Outpatient addiction treatment facility."  An addiction

treatment facility licensed by the Department of Health and

designated by the Department of Corrections as qualified to

provide addiction treatment to criminal justice offenders.

"Participant."  An eligible offender actually sentenced to

State intermediate punishment pursuant to section 9721(a)(7)

(relating to sentencing generally).

"Transitional residence."  A residence investigated and

approved by the Department of Corrections as appropriate for

housing a participant in a drug offender treatment program.

§ 9904.  Referral to State intermediate punishment program.

(a)  Referral for evaluation.--

(1)  Prior to imposing a sentence, the court may, upon

motion of the Commonwealth and agreement of the defendant,

commit a defendant to the custody of the department for the

purpose of evaluating whether the defendant would benefit

from a drug offender treatment program and whether placement

in the drug offender treatment program is appropriate.

(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 pursuant to Chapter 63 (relating

to juvenile matters), when available.

(iii)  Information relating to the defendant's

history of drug or alcohol 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.

(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

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 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

counseling services.

(2)  The department shall conduct risk and other

assessments it deems appropriate and shall provide a report

of its assessment 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 offender treatment program.--If the

department in its discretion believes a defendant would benefit

from a drug offender treatment program and placement in the drug

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 offender

treatment program detailing the type of treatment proposed.

(d)  Prerequisites for commitment.--Upon receipt of a

recommendation for placement in a drug offender treatment

program from the department and agreement of the attorney for

the Commonwealth and the defendant, 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)  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.

(f)  Applicability and program limitations.--The court may

not modify or alter the terms of the department's proposed

individualized drug offender treatment plan without the

agreement of the department and the attorney for the

Commonwealth.

(g)  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).

§ 9905.  Drug offender treatment program.

(a)  Establishment.--The department shall establish and

administer a drug offender treatment program as a State

intermediate punishment. The program shall be designed to

address the individually assessed drug and alcohol 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 section 9760 (relating

to credit for time served), the duration of the drug 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 9904(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 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 offender treatment

program.

(4)  A period of supervised reintegration into the

community for the balance of the drug 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 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

department determines that a participant has successfully

completed the drug 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 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

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 section 9774

(relating to revocation of State intermediate punishment

sentence).

§ 9906.  Written guidelines and regulations.

The department shall develop written guidelines for

participant selection criteria and the establishment of drug

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

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 offender treatment

program be accredited as a therapeutic community for treatment

of drug and alcohol 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 addiction

treatment.

§ 9907.  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 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

offender treatment program.

(2)  The number of offenders sentenced to the drug

offender treatment program.

(3)  The number of offenders sentenced to a State

correctional institution who may have been eligible for the

drug offender treatment program.

(4)  The number of offenders successfully completing the

drug offender treatment program.

(5)  The six-month, one-year, three-year and five-year

recidivism rates for offenders who have completed the drug

offender treatment program and for a comparison group of

offenders who were not placed in the drug offender treatment

program.

(6)  Any changes the department or the commission

believes will make the drug offender treatment program more

effective.

§ 9908.  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 offender

treatment program, to:

(i)  participate in a drug offender treatment

program;

(ii)  continue participation in a drug offender

treatment program;

(iii)  modify the contents of the drug offender

treatment program; or

(iv)  file any cause of action in any court

challenging the department's determination that a

participant be suspended or expelled from or that a

participant has successfully completed or failed to

successfully complete treatment to be provided during any

portion of a drug offender treatment program.

(2)  Enlarge or limit the right of a participant to

appeal the participant's sentence.

§ 9909.  Evaluation.

The department and the commission shall monitor and evaluate

the motivational boot camp program under the act of December 19,

1990 (P.L.1391, No.215), known as the Motivational Boot Camp

Act, to ensure that the programmatic objectives are met. In

even-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 odd-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.]

Section 6.  Title 42 is amended by adding a chapter to read:

CHAPTER 99

OTHER CRIMINAL PROVISIONS

Subchapter

A.  County Probation Officers

B.  (Reserved)

SUBCHAPTER A

COUNTY PROBATION OFFICERS

Sec.

9911.  Definitions.

9912.  Supervisory relationship to offenders.

9913.  Peace officer power for probation officers.

§ 9911.  Definitions.

The following words and phrases when used in this subchapter

shall have the meanings given in this section unless the context

clearly indicates otherwise:

"ARD."  Accelerated Rehabilitative Disposition.

"Conditions of supervision."  Any terms or conditions of an

offender's supervision whether imposed by the court or an

officer, including compliance with all requirements of Federal,

State and local law.

"Contraband."  Any item that an offender is not permitted to

possess under the conditions of supervision, including any item

whose possession is forbidden by any Federal, State or local

law.

"Court."  The court of common pleas or any judge thereof, the

Philadelphia Municipal Court or any judge thereof, the

Pittsburgh Magistrates Court or any judge thereof or any

magisterial district judge.

"Exigent circumstances."  The term includes, but is not

limited to, suspicion that contraband or other evidence of

violations of the conditions of supervision might be destroyed

or suspicion that a weapon might be used. Exigent circumstances

always exist with respect to a vehicle.

"Offender."  A person released on county probation,

intermediate punishment or county parole. The term shall not

include any person serving a period of probation under

Accelerated Rehabilitative Disposition, except as authorized

under section 9912(b) (relating to supervisory relationship to

offenders).

"Officer."  A probation or parole officer appointed or

employed by any court or by any county department of probation

and parole to supervise persons released on county probation or

parole.

"Personal search."  A warrantless search of an offender's

person, including, but not limited to, the offender's clothing

and any personal property which is in the possession, within the

reach or under the control of the offender.

"Property search."  A warrantless search of real property,

vehicle or personal property which is in the possession or under

the control of an offender.

"Real property."  Any residence or business property of an

offender, including all portions of the property to which the

offender has access.

"Supervisor."  An individual acting in a supervisory or

administrative capacity.

§ 9912.  Supervisory relationship to offenders.

(a)  General rule.--Officers are in a supervisory

relationship with their offenders. The purpose of this

supervision is to assist the offenders in their rehabilitation

and reassimilation into the community and to protect the public.

(b)  Searches and seizures authorized.--

(1)  Officers and, where they are responsible for the

supervision of county offenders, State parole agents may

search the person and property of offenders in accordance

with the provisions of this section.

(2)  (i)  Officers may search, in accordance with the

provisions of this section, the person and property of

any offender who accepts ARD as a result of a charge of a

violation of 18 Pa.C.S. Ch. 31 (relating to sexual

offenses) if the court has determined that the offender

shall be subject to personal and property searches as a

condition of the offender's participation in the ARD

program.

(ii)  The court shall notify each offender so offered

ARD, prior to admission to an ARD program, that the

offender shall be subject to searches in accordance with

this section.

(iii)  Nothing in this section shall be construed to

permit searches or seizures in violation of the

Constitution of the United States or section 8 of Article

I of the Constitution of Pennsylvania.

(c)  Effect of violation.--No violation of this section shall

constitute an independent ground for suppression of evidence in

any probation and parole or criminal proceeding.

(d)  Grounds for personal search.--

(1)  A personal search of an offender may be conducted by

an officer:

(i)  if there is a reasonable suspicion to believe

that the offender possesses contraband or other evidence

of violations of the conditions of supervision;

(ii)  when an offender is transported or taken into

custody; or

(iii)  upon an offender entering or leaving the

securing enclosure of a correctional institution, jail or

detention facility.

(2)  A property search may be conducted by an officer if

there is reasonable suspicion to believe that the real or

other property in the possession of or under the control of

the offender contains contraband or other evidence of

violations of the conditions of supervision.

(3)  Prior approval of a supervisor shall be obtained for

a property search absent exigent circumstances. No prior

approval shall be required for a personal search.

(4)  A written report of every property search conducted

without prior approval shall be prepared by the officer who

conducted the search and filed in the offender's case record.

The exigent circumstances shall be stated in the report.

(5)  The offender may be detained if he is present during

a property search. If the offender is not present during a

property search, the officer in charge of the search shall

make a reasonable effort to provide the offender with notice

of the search, including a list of the items seized, after

the search is completed.

(6)  The existence of reasonable suspicion to search

shall be determined in accordance with constitutional search

and seizure provisions as applied by judicial decision. In

accordance with such case law, the following factors, where

applicable, may be taken into account:

(i)  The observations of officers.

(ii)  Information provided by others.

(iii)  The activities of the offender.

(iv)  Information provided by the offender.

(v)  The experience of the officers with the

offender.

(vi)  The experience of officers in similar

circumstances.

(vii)  The prior criminal and supervisory history of

the offender.

(viii)  The need to verify compliance with the

conditions of supervision.

(e)  Nonresident offenders.--No officer shall conduct a

personal or property search of an offender who is residing in a

foreign state except for the limited purposes permitted under

the Interstate Compact for the Supervision of Parolees and

Probationers. The offender is held accountable to the rules of

both the sending state and the receiving state. Any personal or

property search of an offender residing in another state shall

be conducted by an officer of the receiving state.

(f)  When authority is effective.--The authority granted to

the officers under this section shall be effective upon

enactment of this section, without the necessity of any further

regulation by the board.

§ 9913.  Peace officer power for probation officers.

An officer is declared to be a peace officer and shall have

police powers and authority throughout this Commonwealth to

arrest with or without warrant, writ, rule or process any person

on probation, intermediate punishment or parole under the

supervision of the court for failing to report as required by

the terms of that person's probation, intermediate punishment or

parole or for any other violation of that person's probation,

intermediate punishment or parole.

SUBCHAPTER B

(Reserved)

Section 7.  The heading of Title 61 is amended and the title

is amended by adding parts to read:

TITLE 61

[PENAL AND CORRECTIONAL INSTITUTIONS]

PRISONS AND PAROLE

PART I

GENERAL PROVISIONS

Chapter

1.  Preliminary Provisions

CHAPTER 1

PRELIMINARY PROVISIONS

Sec.

101.  Short title of title.

102.  Definitions.

§ 101.  Short title of title.

This title shall be known and may be cited as the Prisons and

Parole Code.

§ 102.  Definitions.

The following words and phrases when used in this title shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Board."  The Pennsylvania Board of Probation and Parole.

"Chief administrator."  The warden, superintendent or other

officer in charge of a correctional institution.

"City department."  The department of human services of a

<--

city of the first class or such other agency of a city of the

first class as shall be determined by a mayor of the city.

"Commission."  The Pennsylvania Commission on Sentencing.

"Correctional institution."  A State correctional institution

or a county correctional institution.

"Corrections officer."  A person employed at a correctional

institution to provide any security or custodial service for

inmates.

"County correctional institution."  A correctional facility,

prison or jail owned or operated by a county.

"Department."  The Department of Corrections of the

Commonwealth.

"Inmate."  A person committed to a term of imprisonment or

otherwise confined under the custody of the Commonwealth or a

county in a correctional institution in accordance with law.

"Prosecuting attorney."  The Office of Attorney General or

<--

the office of a district attorney of a county who represented

the Commonwealth at the most recent sentencing of an inmate.

"Secretary."  The Secretary of Corrections of the

Commonwealth.

"State correctional institution."  A correctional facility,