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PRINTER'S NO. 656
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
642
Session of
2019
INTRODUCED BY KINSEY, BURGOS, KENYATTA, HILL-EVANS, MURT,
CALTAGIRONE, ULLMAN, SCHLOSSBERG, SOLOMON, DALEY, KIRKLAND,
T. DAVIS, NEILSON, WARREN, STRUZZI, KIM AND McCLINTON,
MARCH 1, 2019
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 1, 2019
AN ACT
Amending Title 61 (Prisons and Parole) of the Pennsylvania
Consolidated Statutes, providing for medical parole and early
release of elderly inmates; and imposing duties on the
Department of Corrections, the Pennsylvania Board of
Probation and Parole and the Department of Aging.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 61 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 33A
MEDICAL PAROLE AND EARLY
RELEASE OF CERTAIN INMATES
Sec.
33A01. Legislative findings and declaration.
33A02. Definitions.
33A03. Establishment of program.
33A04. Medical parole.
33A05. Conditional early release of elderly inmates.
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33A06. Provisions applicable to medical parole and early
release.
33A07. Duties of department.
33A08. Duties of board.
33A09. Department of Aging.
33A10. Regulations.
33A11. Applicability and construction.
§ 33A01. Legislative findings and declaration.
The General Assembly:
(1) Finds that:
(i) Statistics reveal that the number of individuals
55 years of age and older who are incarcerated in Federal
and state prisons in the United States has increased by
1,400% since 1981 and is expected to triple by 2030.
(ii) A Department of Corrections report revealed
that in 2001 there were 1,892 inmates 55 years of age or
older. By September 2017, the geriatric population
tripled to 6,458.
(iii) If these geriatric incarceration trends
continue, by 2030 it is estimated that inmates 55 years
of age and older will make up one-third of the United
States prison population.
(iv) The incarceration of aging and elderly inmates
is costly as these inmates require more medical and
supportive services than younger inmates. The average
health care cost of incarcerating aging and elderly
inmates with a chronic illness over the age of 50 is at
least twice as much as the cost of incarcerating younger
inmates.
(v) The incarceration of geriatric inmates forces
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the Commonwealth's correctional system to open more
geriatric-care units and expand existing resources to
house aging and elderly inmates with dementia, diabetes,
heart disease, cancer and other physical, behavioral and
cognitive disabilities associated with aging.
(vi) Contemporary research reveals that aging and
elderly inmates who have served extensive sentences
present the lowest risk of recidivism of any other
population of inmates.
(2) Further finds that providing an avenue for the
review and parole of aging and infirm inmates is both cost-
effective and consistent with public safety.
(3) Declares that any decision to parole an aging and
infirm inmate or elderly inmate shall be based on rigorous
criteria established under this act, which must ensure that
public safety is the highest priority and take into account
rehabilitation, remorse and input from crime victims and the
community.
§ 33A02. 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:
"Aging and infirm inmate." An inmate who is 55 years of age
or older, who has no current or prior convictions for a violent
offense and who has been determined to be a permanently
medically incapacitated inmate or a terminally ill inmate by a
health care practitioner employed by or associated with the
correctional facility where the inmate is incarcerated.
"Commission." The Pennsylvania Commission on Sentencing.
"Correctional facility." A State correctional institution.
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"Early release." The release of an elderly inmate from the
custody of the department before the inmate's original release
date due to the age of the inmate.
"Elderly inmate." An inmate who is 65 years of age or older
and who has no current or prior convictions for a violent
offense.
"Eligible offender." An aging and infirm inmate.
"Health care practitioner." The term shall have the meaning
given to it under section 103 of the act of July 19, 1979
(P.L.130, No.48), known as the Health Care Facilities Act.
"Inmate." An individual committed to a term of imprisonment
or otherwise committed to the custody of the department in a
State correctional facility.
"Medical diagnosis." A diagnosis by a health care
practitioner that an aging and infirm inmate is a permanently
medically incapacitated inmate or a terminally ill inmate. The
diagnosis shall include, but not be limited to:
(1) A description of the injury, disease, syndrome,
illness or terminal condition.
(2) A prognosis concerning the likelihood of recovery
from the disease, syndrome or terminal condition.
(3) A description of the inmate's mental or physical
incapacity.
(4) A description of the type of ongoing medical
treatment that would be required if the inmate was released
on medical parole.
"Medical information or data." Information or data, whether
oral or recorded, in any form or medium, created by or derived
from a health care practitioner that relates to:
(1) A medical diagnosis.
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(2) The past, present or future physical, mental or
behavioral health or condition of an aging and infirm inmate.
(3) The provision of health care to an aging and infirm
inmate by a health care practitioner employed by or
associated with a correctional facility.
"Medical parole." The release of an aging and infirm inmate
from the custody of the department due to the inmate's status as
a permanently medically incapacitated inmate or a terminally ill
inmate.
"Permanently medically incapacitated inmate." An aging and
infirm inmate:
(1) Who has a condition caused by injury, disease,
syndrome or illness which, to a reasonable degree of medical
certainty as determined by a health care practitioner,
renders the inmate permanently and irreversibly physically
incapacitated to the extent that the inmate is permanently
unable to perform activities of daily living and results in
the inmate requiring 24-hour care.
(2) Whose incapacitation under paragraph (1) did not
exist at the time of sentencing.
(3) Who is not a danger to the inmate or others.
"Petition." An application submitted to the board by an
aging and infirm inmate or an elderly inmate seeking medical
parole or early release from a correctional facility.
"Program." The Medical Parole and Early Release Program
established under section 33A03 (relating to establishment of
program).
"Terminally ill inmate." An aging and infirm inmate who:
(1) has a condition caused by injury, disease, syndrome
or illness which, to a reasonable degree of medical certainty
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as determined by a health care practitioner, renders the
aging and infirm inmate terminally ill to the extent that
there can be no recovery and death is imminent; and
(2) is not a danger to the inmate or others.
"Violent offense." The term includes:
(1) An offense under 18 Pa.C.S. (relating to crimes and
offenses) which 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 commission.
(2) An offense for which registration is required under
42 Pa.C.S. Ch. 97 Subch. H (relating to registration of
sexual offenders).
(3) A conviction under any of the following:
(i) 18 Pa.C.S. § 2502 (relating to murder).
(ii) 18 Pa.C.S. § 2503 (relating to voluntary
manslaughter).
(iii) 18 Pa.C.S. § 2506 (relating to drug delivery
resulting in death).
(iv) 18 Pa.C.S. § 2507 (relating to criminal
homicide of law enforcement officer).
(v) 18 Pa.C.S. § 2604(c) (relating to murder of
unborn child).
(vi) 18 Pa.C.S. § 2606 (relating to aggravated
assault of unborn child).
(vii) 18 Pa.C.S. § 2702(a)(1) or (2) (relating to
aggravated assault).
(viii) 18 Pa.C.S. § 2702.1 (relating to assault of
law enforcement officer).
(ix) 18 Pa.C.S. § 2716(b) (relating to weapons of
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mass destruction).
(x) 18 Pa.C.S. § 2717(b)(2) (relating to terrorism).
(xi) 18 Pa.C.S. § 2901(a) (relating to kidnapping).
(xii) 18 Pa.C.S. § 3011 (relating to trafficking in
individuals), if the offense is graded as a felony.
(xiii) 18 Pa.C.S. § 3301(a)(1)(i) (relating to arson
and related offenses).
(xiv) 18 Pa.C.S. § 3502 (relating to burglary), if
the offense was committed in a structure adapted for
overnight accommodation and an individual was present.
(xv) 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii)
(relating to robbery).
(xvi) 18 Pa.C.S. § 3702 (relating to robbery of
motor vehicle).
(xvii) 18 Pa.C.S. § 7508 (a)(1)(iii), (2)(iii), (3)
(iii) or (4)(iii) (relating to drug trafficking
sentencing and penalties).
(4) A criminal attempt, a criminal conspiracy or a
criminal solicitation to commit an offense listed under
paragraph (3) or an equivalent offense under the laws of this
Commonwealth in effect at the time of commission of that
offense or an equivalent crime in another jurisdiction.
§ 33A03. Establishment of program.
The department, in consultation with the board and the
Department of Aging, shall establish the Medical Parole and
Early Release Program. In establishing the program, the
department shall:
(1) Examine and consider the needs of aging and infirm
inmates and elderly inmates.
(2) Adopt health care standards unique to aging and
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infirm inmates and elderly inmates.
(3) Examine and evaluate the systemic barriers to
community reintegration by elderly inmates, including the
relevance, accessibility and applicability of prescribed
programming models for elderly inmates.
(4) Determine specific accommodations that elderly
inmates may require to participate in prescribed programming,
including prioritizing reintegrative and rehabilitative
programming or vocational training.
§ 33A04. Medical parole.
(a) Authority to grant.--Notwithstanding any other provision
of this title or any other law, regulation or guideline to the
contrary, if a health care practitioner of a correctional
facility in which an aging and infirm inmate is incarcerated
concludes in a medical diagnosis that the inmate is an eligible
offender, the department shall advise the eligible offender of
the program if the department determines that the medical
diagnosis limits the aging and infirm inmate's ability to pose a
threat to public safety.
(b) Procedure.--
(1) The following apply:
(i) The department shall identify all eligible
inmates committed to the custody of the department.
(ii) The department shall notify the inmate of the
inmate's status as an eligible offender.
(iii) Upon identification of an inmate as an
eligible offender under subparagraph (i) and notification
under subparagraph (ii), the department shall send notice
to the board.
(iv) Upon receipt of the notice under subparagraph
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(iii), the board shall send notice to the prosecuting
attorney and the sentencing court indicating that the
department has preliminarily identified the inmate as an
eligible offender. The notice shall be sent by United
States mail unless the board, the sentencing court and
the prosecuting attorney have consented to receipt of
notice via electronic mail.
(v) Within 30 days of receipt of the notice under
subparagraph (iv), the court or prosecuting attorney may
file a written objection to the department's preliminary
identification of the inmate as an eligible offender.
Notice of the objection shall be provided to both the
department and the board.
(vi) If no notice of objection has been filed under
subparagraph (v), the board or the board's designee may
approve an eligible offender's petition for medical
parole upon a determination that all of the following
apply:
(A) The department has certified that the
eligible offender has a good conduct record and
continues to remain an eligible offender.
(B) The reentry plan for the eligible offender
is adequate.
(C) The eligible offender's conditions and
requirements for medical parole have been
established.
(D) There is no reasonable indication that the
eligible offender poses a risk to public safety.
(vii) If the court or prosecuting attorney files a
timely objection under subparagraph (v), the board shall
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make a determination whether the inmate's status as an
eligible offender shall be rescinded. The board shall
notify the department, the prosecuting attorney and the
sentencing court of the board's determination no later
than 60 days after receipt of the objection.
(viii) If the board determines that the inmate is an
eligible offender under this chapter, the board shall
follow the requirements under subparagraph (vi).
(ix) If the board determines that the inmate is not
an eligible offender, the board shall retain exclusive
jurisdiction to grant parole and shall determine whether
the inmate shall be eligible for medical parole at a
later date or if medical parole should be denied.
(2) Nothing in this subsection shall be construed as
granting a right to medical parole to an eligible offender,
and any decision by the board or the department under this
section shall not be considered an adjudication under 2
Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
Commonwealth agencies) or Ch. 7 Subch. A (relating to
judicial review of Commonwealth agency action).
(3) Except as provided under this subsection, nothing in
this chapter shall otherwise affect the powers and duties of
the board or the department.
(c) Special consideration.--When considering an aging and
infirm inmate for medical parole, the board shall give special
consideration to whether age, time served and diminished
capacity or physical condition have reduced the aging and infirm
inmate's risk for future violence. The board may also consider
whether the inmate demonstrates the following:
(1) Successful participation in programs designed to
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restore the inmate as a productive individual in the
community upon release.
(2) Reform and behavior change over a period of years.
(3) A renunciation of criminal activity and criminal
affiliations, if applicable.
(4) Remorse for criminal activity.
§ 33A05. Conditional early release of elderly inmates.
(a) Authority to petition for early release.--The following
apply:
(1) Notwithstanding any other provision of this title or
any other law, regulation or guideline to the contrary, an
elderly inmate convicted of one or more crimes may petition
the board for early release after serving no less than 20
years of total confinement or reaching 65 years of age,
whichever is later, if the inmate has not committed a
disqualifying serious infraction as defined by the department
in the 12 months prior to filing the petition for early
release and the current sentence was not imposed for the
commission of a violent offense.
(2) No later than five years prior to the date that an
elderly inmate will be eligible to petition for early
release, the department shall conduct an assessment of the
elderly inmate and identify programming and services that
would be appropriate to prepare the inmate for and assist the
inmate with reentry into the community. To the extent
possible, the department shall make programming available as
identified by the assessment.
(3) No later than 90 days from receipt of a petition for
early release from an elderly inmate, the department shall
conduct, and the elderly inmate shall participate in, an
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examination of the inmate, incorporating methodologies that
are recognized by experts in the prediction of dangerousness,
including a prediction of the probability that the elderly
inmate will engage in future criminal behavior, if released
on conditions to be set by the board.
(b) Submission of information to board.--The results of all
assessments, examinations, evaluations and any other information
pertaining to an elderly inmate who files a petition in
accordance with subsection (a) shall be transmitted to the board
at such time and in such form or manner as the board, in
consultation with the department, requires.
(c) Procedure.--The board:
(1) Shall give public safety considerations the highest
priority when making all decisions regarding early release
and conditions of early release. The board's decision to
grant early release to an elderly inmate under this section
is discretionary based on consideration of the criteria
established under section 33A08 (relating to duties of
board).
(2) Shall, before reviewing a petition, give written
notice of the petition to all interested parties, including,
but not limited to, the following:
(i) Law enforcement.
(ii) Any department personnel involved in the case.
(iii) The sentencing court.
(iv) The county district attorney's office which
prosecuted the case.
(v) The victims of a crime perpetrated by an elderly
inmate, if any, who have indicated a desire to be
notified.
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(vi) The Office of Victim Advocate.
(vii) The Attorney General, if determined necessary
and appropriate.
(3) Shall conduct a hearing on each petition filed under
this section for early release in accordance with rules and
regulations adopted under section 6139(a)(4) (relating to
parole procedure). In conducting the hearing, the board shall
provide an opportunity for victims and for survivors of
victims of any crimes for which an elderly inmate has been
convicted to present victim statements. The procedures to
govern the presentation of victim statements shall be in
accordance with section 6140 (relating to victim statements,
testimony and participating in hearing). To facilitate victim
and survivor of victim involvement, each district attorney
shall ensure that any victim statements and known contact
information for victims of record and survivors of victims
are forwarded as part of the judgment and sentence.
(4) May, after a hearing conducted under paragraph (3),
order the elderly inmate released under conditions the board
determines appropriate. If the board grants or denies a
petition, it may specify the reasons for the decision. An
elderly inmate granted early release by the board shall be
subject to supervision by the board for a period to be
determined by the board. The board shall monitor the elderly
inmate's compliance with conditions of early release imposed
by the sentencing court or board and promptly report any
violations to the department. Any violation of conditions of
early release established or modified by the board shall be
subject to section 6138 (relating to violation of terms of
parole).
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(5) When making a decision for early release, shall
consider any written statement addressing the appropriateness
of early release from the department, the prosecuting
attorney, the sentencing judge, law enforcement and
correctional personnel involved in the case, if applicable,
the victim and any survivor of the victim and any other
interested party.
(6) Shall impose appropriate conditions of early release
and provide appropriate supervision for the elderly inmate in
the same manner as inmates given supervised release in
accordance with the rules and regulations adopted by the
board under section 6141 (relating to general rules and
special regulations).
(7) May refuse to review a petition for any reason and
may not be required to state a reason for the board's refusal
to review.
(d) Denial of petition and violations.--The following apply:
(1) An elderly inmate whose petition for early release
is denied may file a new petition for early release three
years from the date of denial or at an earlier date as may be
established by the board.
(2) An elderly inmate granted early release in
accordance with this section may be returned to a
correctional facility at the discretion of the board if the
released inmate is found to have violated a condition of
early release. The released elderly inmate shall be entitled
to a hearing under 2 Pa.C.S. Ch. 5 Subch. A (relating to
practice and procedure of Commonwealth agencies). If the
board finds that the elderly inmate has reoffended, the board
may recommit the elderly inmate for up to the remainder of
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the court-imposed term of incarceration. The elderly inmate
may file a new petition for early release five years from the
date of return to a correctional facility or at an earlier
date as may be set by the board.
§ 33A06. Provisions applicable to medical parole and early
release.
If an inmate is granted medical parole or early release under
this chapter, the board may require, as a condition precedent to
medical parole or early release, that the inmate's release plan
include:
(1) The identification of a family member or community
sponsor who will assist the aging and infirm inmate or
elderly inmate with the activities of daily living.
(2) Verification of the availability of appropriate
medical services sufficient to meet any ongoing treatment
requirements, if any.
(3) Verification of appropriate housing, which may
include, but not be limited to, a hospital, hospice, nursing
home or other housing accommodation suitable to an aging and
infirm inmate's medical needs.
§ 33A07. Duties of department.
The department shall:
(1) Develop and implement procedures to identify inmates
who may be eligible for medical parole. The procedures shall:
(i) be based upon all available medical information
or data; and
(ii) include a process for identified inmates to
submit a petition for medical parole.
(2) Establish criteria for reviewing petitions for
medical parole. The criteria must include consideration of:
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(i) Public safety.
(ii) The seriousness of any offense committed by an
aging and infirm inmate.
(iii) The victims and survivors of victims of crime
for which the aging and infirm inmate was convicted and
sentenced to incarceration.
(iv) The aging and infirm inmate's remorse and
atonement for the offense for which the inmate was
convicted and sentenced or the absence of remorse and
atonement.
(v) The aging and infirm inmate's productivity and
life changes while incarcerated.
(vi) The aging and infirm inmate's infraction
history while incarcerated, if any.
(vii) The aging and infirm inmate's involvement in,
completion of and responsiveness to programs and services
made available to the inmate while incarcerated.
(viii) The aging and infirm inmate's behavioral
health history, if applicable.
(ix) Any other criteria determined necessary and
appropriate by the department and the board.
(3) Establish a uniform method for submitting petitions
to the board in accordance with the requirements of this
chapter.
(4) Consult with the board in developing the uniform
method for submitting petitions to the board in accordance
with paragraph (3).
(5) Consider and incorporate recommendations provided by
the Department of Aging.
§ 33A08. Duties of board.
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The board shall establish criteria for reviewing petitions
under section 33A05 (relating to conditional early release of
elderly inmates), which shall include consideration of the
criteria established in accordance with section 33A03 (relating
to establishment of program). In establishing the criteria, the
board shall include an elderly inmate's failure to participate
in an evaluation under section 33A05.
§ 33A09. Department of Aging.
(a) Consultations with the Department of Aging.--The
department shall consult with the Department of Aging to
determine the resources an eligible offender may need to
transition from being an inmate to being a member of the
community. The consultations shall focus on the role of the
Department of Aging's area agencies on aging in assisting the
department in determining the community-based options and
factors necessary for successful reentry by eligible offenders
who are granted medical parole, including, but not limited to,
the following:
(1) Access to services such as transportation and
housing, connection with a social support system, access to
physical and mental health care and help with signing up for
benefits.
(2) Finding appropriate placement for an eligible
offender granted medical parole who is terminally ill.
(3) Help with identifying health care practitioners and
securing medical records to safely manage illness or disease.
(b) Cooperation.--The Department of Aging shall cooperate
with the department and the board in carrying out the
requirements of this subsection.
§ 33A10. Regulations.
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The following apply:
(1) The department and the board shall collaborate and
each agency shall adopt and promulgate regulations necessary
to carry out their respective duties under this chapter.
(2) Any rules, regulations or guidelines adopted by the
board under this title or under 42 Pa.C.S. § 2154.5 (relating
to adoption of guidelines for parole) may be used by the
board to carry out its duties under this chapter.
§ 33A11. Applicability and construction.
(a) Applicability.--The provisions of this chapter shall not
apply to an inmate who is sentenced to a term of imprisonment
after a conviction for a violent offense.
(b) Construction.--Nothing in this chapter shall be
construed to:
(1) Alter or diminish the rights conferred to victims
under the act of November 24, 1998 (P.L.882, No.111), known
as the Crime Victims Act.
(2) Limit the authority of the board to address
violations of a condition of medical parole or early release
under Subchapter C of Chapter 61 (relating to powers and
duties).
(3) Convey a right to:
(i) medical parole;
(ii) an assessment for medical parole or any
examination or evaluation to determine eligibility for
medical parole; or
(iii) petition the board for early release from the
custody of the department.
Section 2. This act shall take effect in 60 days.
20190HB0642PN0656 - 18 -
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