Assembly Bill A10349

                                BILL NUMBER:A10349

TITLE  OF  BILL:    An  act  to amend the correction law, in relation to
certain persons sentenced to parole supervision

SUMMARY OF PROVISIONS: Section 1 of the bill would amend Correction  Law
§  2(20)  to provide procedures for placement of parolees sentenced to a
drug treatment campus into an alternative treatment site, and would make
a technical correction to the statute.

Section 2 of the bill would establish an immediate effective date.

EXISTING LAW: Criminal Procedure Law § 410.91 and Correction Law § 2(20)
provide that when an eligible offender  receives  a  parole  supervision
sentence,  such  person  shall  first be transferred to a drug treatment
campus operated by DOCS to receive an intensive  90-day  drug  treatment
program.  Upon successful completion of that program, the offender is to
be released into the community to  continue  under  supervision  by  the
Division of Parole.

LEGISLATIVE HISTORY: This is a new proposal.

STATEMENT IN SUPPORT: DOCS operates Willard, in Seneca County, as a drug
treatment   campus  for  offenders  who  receive  a  parole  supervision
sentence, as well as for certain parole violators. Willard, like all  of
the  institutions  operated  by DOCS, has a health services rating and a
              

mental health services rating. It is crucial that each inmate be  placed
in  an  institution  that has the capability of delivering the requisite
level of medical services actually needed. Thus, for example, an  inmate
who  is  identified  as  a  level. 1, which means that he or she has the
highest level of mental health needs, could not be sent  to  a  facility
that  is  only  rated  as a level 2. In terms of mental health services,
Willard is rated as a level 2 facility.   Therefore, an  inmate  who  is
rated  as a level 1 could not have his or her mental health needs met at
Willard.

Furthermore, in terms of health services, physicians make individualized
medical assessments as to whether an inmate could safely participate  in
the  rigorous  program  that  is  part of the Willard regime. If a court
sentences a defendant to parole supervision,  but  a  physician  decides
that he or she could not safely participate in the Willard program, then
DOCS must arrange for an alternative placement.

In all cases involving medical or mental health needs that cannot be met
at  Willard,  DOGS'  practice  has  been  to  transfer such inmates to a
correctional facility where their needs could be  adequately  addressed,
while  also  providing  them  with  an alternative 90-day drug treatment
program. DOCS also sends written notice to the sentencing court in  each
case  advising  of  the  need  for  this  alternative  placement. At the
successful conclusion of the alternative  drug  treatment  program,  the
inmate  is  released  into the community to continue under parole super-
vision.

A number of inmates who were placed in these alternative  programs  have
filed  writs  of  habeas  corpus seeking immediate release. They contend
that DOCS lacks the statutory authorization  to  place  anyone  who  has
received  a  parole  supervision  sentence at any institution other than
Willard. One judge has agreed with these contentions and has granted all
such writs, essentially finding that DOCS has no authority to make these
alternative placements.

As  a  result,  even  though  the  sentencing court has imposed a parole
supervision sentence that required the inmate  to  successfully  partic-
ipate in a 90-day drug treatment program, and even though DOCS has noti-
fied  the  sentencing  court  of  the  alternative placement, the habeas
corpus judge has been ordering the immediate release of  these  offender
into  the  community even though they have not completed the alternative
90-day drug treatment program at the alternative facility.

This bill would grant DOCS  the  authority  to  make  these  alternative
placements,  so  that  the intent of the sentencing court's order may be
fulfilled. It will allow DOCS to provide the court-imposed  90-day  drug
treatment  even  to  those  inmates whose health and mental health needs
cannot be met at Willard.

Consistent with a comparable change to Penal Law Section  60.04(7)  that
the  Legislature recently enacted as a part of Chapter 56 of the laws of
2009, this bill would set up a formal process whereby individuals  whose
medical  or  mental  health  needs  could not be met at a drug treatment
campus would be provided with  a  written  notification  describing  the
alternative drug treatment program being proposed and advising them that
they  may  object  in writing to such a placement. If an individual then
objects, DOCS will notify the sentencing court  and  submit  to  it  the
proposed  alternative  placement proposal, which shall then be forwarded
by the court to the appropriate prosecutor  and  defense  attorney.  The
court  will  then  conduct  a  proceeding to include the prosecutor, the
defense attorney and the individual and then modify its sentencing order
accordingly.

Finally, the sentence being deleted  was  only  applicable  in  1995  to
certain  predicate drug offenders who were sentenced prior to October 1,
1995. This was set forth in Section 45 of Chapter 3 of the Laws of  1995
and is no longer applicable.

BUDGET IMPLICATIONS: None.

EFFECTIVE DATE: This bill would take effect immediately.