2006 Louisiana Laws - RS 15:574.4 — Parole; eligibility; consideration and hearings; decisions of board; nature, order, and conditions; rules of conduct; offenders convicted of crimes of violence; infectious disease testing

§574.4.  Parole; eligibility; consideration and hearings; decisions of board; nature, order, and conditions; rules of conduct; offenders convicted of crimes of violence; infectious disease testing

A.(1)  Except as provided for in Subsection B of this Section, a person, otherwise eligible for parole, convicted of a first felony offense shall be eligible for parole consideration upon serving one-third of the sentence imposed; upon conviction of a second felony offense, such person shall be eligible for parole consideration upon serving one-half of the sentence imposed.  A person convicted of a third or subsequent felony offense shall not be eligible for parole.

(2)(a)  Notwithstanding the provisions of Paragraph (A)(1) of this Section, a person, otherwise eligible for parole, convicted of a nonviolent first felony offense and committed to the Department of Public Safety and Corrections, or of a nonviolent second felony offense and committed to the Department of Public Safety and Corrections, may be eligible for intensive parole supervision upon successful completion of intensive incarceration.  In addition, any person convicted of a first or second offense for possession of amphetamine or methamphetamine or cocaine or oxycodone or methadone or of a first offense for distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense amphetamine or methamphetamine or cocaine or oxycodone or methadone, in violation of R.S. 40:967(B)(1) or R.S. 40:967(B)(4)(b) when the amount of amphetamine or methamphetamine or cocaine or oxycodone or methadone involved was twenty-eight grams or less, may be eligible to participate in the intensive incarceration program. Notwithstanding the provisions of R.S. 40:967(B)(4)(b), a person otherwise eligible for participation in the intensive incarceration program may be eligible for intensive parole supervision upon successful completion of intensive incarceration.  The intensive incarceration and intensive parole supervision program shall be established and administered by the department.  The offender may be considered for participation in the program if all of the following conditions are met:

(i)  The offender is sentenced to be committed to the Department of Public Safety and Corrections to serve ten years or less.

(ii)  The department, through the division of probation and parole within the office of adult services, recommends to the sentencing court that the offender is particularly likely to respond affirmatively to participation in the program.

(iii)  The court at sentencing recommends that the offender be considered for participation in the program.

(iv)  The secretary of the department, or his designee, finds, after an evaluation, that the offender is particularly likely to respond affirmatively to participation in the program.

(v)  The offender voluntarily enrolls in the program after having been advised by the department of the rules and regulations governing participation in the program.

(b)  Notwithstanding the provisions of Paragraph (A)(1) of this Section, an offender who is otherwise eligible for intensive incarceration and intensive parole supervision, but who has not been recommended for participation in the intensive incarceration and intensive parole supervision program by the division of probation and parole of the office of adult services and the sentencing judge, as provided for in Paragraphs (A)(2)(a)(ii) and (iii) of this Section, may additionally be placed in the intensive incarceration and intensive parole supervision program if all of the following conditions are met:

(i)  The staff at the adult reception and diagnostic center, after a thorough evaluation, determines that the offender is suitable and appropriate for participation.

(ii)  The warden at the adult reception and diagnostic center concurs with the staff recommendation.

(iii)  The warden of the facility where the offender would be placed concurs with the recommendation of the staff and warden of the adult reception and diagnostic center.

(iv)  The offender meets other conditions of participation as set forth in Paragraphs (A)(2)(a)(i), (iv), and (v) of this Section.

(c)(i)  Notwithstanding the provisions of Paragraph (A)(1) of this Section, a person, otherwise eligible for parole, convicted of a first felony offense and committed to the Department of Public Safety and Corrections, or of a second felony offense and committed to the Department of Public Safety and Corrections, may be eligible for intensive parole supervision upon successful completion of intensive incarceration.  The intensive incarceration and intensive parole supervision program shall be established and administered by the department.

(ii)  The court may sentence an offender directly to the program if the court commits the offender to the Department of Public Safety and Corrections to serve seven years or less.

(d)  For purposes of this Section, a "first offender" shall not have been convicted previously of another felony as provided in R.S. 15:572(C) and shall not have been granted an automatic pardon as provided in R.S. 15:572(B).

(e)  The duration of intensive incarceration shall not be less than one hundred eighty calendar days.

(f)  The participating offender shall be evaluated by the program staff on a continual basis throughout the entire period of intensive incarceration.  The evaluation shall include the offender's performance while incarcerated, the likelihood of successful adjustment on parole, and other factors deemed relevant by the Board of Parole or the program staff.  The evaluation shall provide the basis for the recommendations by the department to the Board of Parole upon the offender's completion of intensive incarceration.  Violation of any institutional or program rules or regulations may subject the participant to removal from the program by the department.

(g)(i)  If an offender is denied entry into the intensive incarceration program for physical or mental health reasons or for failure to meet the department's suitability criteria, the department shall notify the sentencing court, and based upon the court's order, shall either return the offender to court for resentencing in accordance with the provisions of the Code of Criminal Procedure Article 881.1 or return the offender to a prison to serve the remainder of his sentence as provided by law.

(ii)  If an offender enters the intensive incarceration program and is subsequently removed for physical or mental health reasons or for failure to meet the department's suitability criteria, the department shall notify the sentencing court and, based upon the court's order, shall either return the offender to court for resentencing in accordance with the provisions of Code of Criminal Procedure Article 881.1 or return the offender to a prison to serve the remainder of his sentence as provided by law.  If an offender enters the intensive incarceration program and is removed for violating any institutional or program rules or regulations, the offender shall be assigned to the general population to serve the remainder of his sentence as provided by law.

(h)  When an offender completes intensive incarceration, the Board of Parole shall review the case of the offender and recommend either that the offender be released on intensive parole supervision or that the offender serve the remainder of his sentence as provided by law.  When the offender is released to intensive parole supervision by the board, the board shall require the offender to comply with the following conditions of intensive parole supervision in addition to any other conditions of parole ordered by the board:

(i)  Be subject to multiple monthly visits with his supervising officers without prior notice.

(ii)  Abide by any curfew set by his supervising officers.

(iii)  Perform at least one hundred hours of unpaid community service work during the period of intensive parole supervision and, if unemployed, perform additional hours as instructed by his supervising officers.

(iv)  Refrain from using or possessing any controlled dangerous substance or alcoholic beverage and submit, at his own expense, to screening, evaluation, and treatment for controlled dangerous substance or alcohol abuse as directed by his supervising officers.

(v)  Pay any costs as ordered by the sentencing court or Board of Parole.

(i)  In cases in which the Board of Parole determines that there is victim opposition to parole, that the offender has a questionable disciplinary record, or that other extraordinary circumstances exist, the board may conduct a hearing to consider intensive parole supervision for the offender having successfully completed intensive incarceration, which shall be public and conducted in the same manner as parole hearings as otherwise provided in this Part.  Otherwise the decision shall be made upon the approval or disapproval of a majority of the members of the board without necessity of a hearing, after a review of all available information on the offender, including the pre-parole report prepared by the department.

(3)  Notwithstanding the provisions of Paragraph (A)(1) or any other law to the contrary, unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five.  This provision shall not apply to a person serving a life sentence unless the sentence has been commuted to a fixed term of years.

B.  No person shall be eligible for parole consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S. 14:64.  No prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.  No prisoner sentenced as a serial sexual offender shall be eligible for parole.  No prisoner may be paroled while there is pending against him any indictment or information for any crime suspected of having been committed by him while a prisoner. Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least eighty-five percent of the sentence imposed, before being eligible for parole.  The victim or victim's family shall be notified whenever the offender is to be released provided that the victim or victim's family has completed a Louisiana victim notice and registration form as provided in R.S. 46:1841 et seq., or has otherwise provided contact information and has indicated to the Department of Public Safety and Corrections, Crime Victims Services Bureau, that they desire such notification.

C.(1)  At such intervals as it determines, the board or a member thereof shall consider all pertinent information with respect to each prisoner eligible for parole, including the nature and circumstances of the prisoner's offense, his prison records, the presentence investigation report, any recommendations of the chief probation and parole officer, and any information and reports of data supplied by the staff.  A parole hearing shall be held if, after such consideration, the board determines that a parole hearing is appropriate or if such hearing is requested in writing by its staff.

(2)(a)  In cases where the offender has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of a violation of a sex offense as defined in R.S. 15:541(14.1) and parole is permitted by law and the offender is otherwise eligible, the board shall consider reports, assessments, and clinical information, as available, including any testing and recommendations by mental health professionals, as to all of the following:

(i)  Whether the offender has successfully completed the sex offender program.

(ii)  Whether, in the expert's opinion, there is a likelihood that the offender will or will not repeat the criminal conduct and that the offender will or will not be a danger to society.

(b)  The board shall render its decision ordering or denying the release of the prisoner on parole only after considering this clinical evidence where such clinical evidence is available.

D.(1)  The parole hearings shall be conducted in a formal manner in accordance with the rules formulated by the board and with the provisions of this Part.  Before the parole of any prisoner is ordered, such prisoner shall appear before and be interviewed by the board, except those incarcerated in parish prisons or parish correctional centers, in which case one board member may conduct the interview.  The board may order a reconsideration of the case or a rehearing at any time.

(2)  The crime victim or the victim's family, a victim advocacy group, and the district attorney or his representatives, may appear before the Board of Parole by means of telephone communication from the office of the local district attorney.

E.  The board shall render its decision ordering or denying the release of the prisoner on parole within thirty days after the hearing.  A parole shall be ordered only for the best interest of society, not as an award of clemency, and upon determination by the board that there is reasonable probability that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen so that he can be released without detriment to the community or to himself.

F.  All paroles shall issue upon order of the board and each order of parole shall recite the conditions thereof; provided, however, that before any prisoner is released on parole he shall be provided with a certificate of parole that enumerates the conditions of parole.  These conditions shall be explained to the prisoner and the prisoner shall agree in writing to such conditions.

G.  The release date of the prisoner shall be fixed by the board, but such date shall not be later than six months after the parole hearing or the most recent reconsideration of the prisoner's case.

H.(1)  The Board of Parole may make rules for the conduct of persons heretofore or hereafter granted parole.  When a prisoner is released on parole, the board shall require as a condition of his parole that he refrain from engaging in criminal conduct.

(2)  In cases where the offender has been convicted of or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of a violation of a sex offense as defined in R.S. 15:541(14.1), including criminal sexual offenders under the supervision and legal authority of the Department of Public Safety and Corrections pursuant to the terms and conditions of the interstate compact agreement provided for in R.S. 15:574.14, and parole is permitted by law and the offender is otherwise eligible, and when the board releases an offender on parole, the board shall order the offender to register as a sex offender and provide notification in accordance with the provisions of R.S. 15:540 et seq.

(3)  The board shall mail notice within three days after it makes a decision to release a sexual offender, as enumerated and pursuant to the circumstances in Paragraph (2) of this Subsection, on parole.  The notice shall contain the address where the defendant will reside, a statement that the offender will be released on parole, and the date he will be released and shall be mailed to the victim or the victim's parent or guardian if the victim or a relative was not present at the parole hearing of the offender, and the notice shall be sent to their last known address by registered or certified letter, unless the victim or relative has signed a written waiver of notification.

(4)  The board may also require, either at the time of his release on parole or at any time while he remains on parole, that he conform to any of the following conditions of parole which are appropriate to the circumstances of the particular case:

(a)  Report immediately to the division of probation and parole office, Department of Public Safety and Corrections, which is listed on the face of the certificate of parole.

(b)  Remain within the limits fixed by the certificate of parole.  If he has good cause to leave these limits, he will obtain written permission from the parole officer and the approval of the division of probation and parole before doing so.

(c)  Between the first and fifth days of each month, until his final release, and also on the final day of his parole, make a full and truthful written report upon the form provided for that purpose and that he will take or mail his report to his parole officer.  He will report to the probation and parole officer when directed to do so.

(d)  Avoid injurious or vicious habits and places of disreputable or harmful character.

(e)  Will not associate with persons known to be engaged in criminal activities or with persons known to have been convicted of a felony, without written permission of his parole officer.

(f)  In all respects conduct himself honorably, work diligently at a lawful occupation, and support his dependents, if any, to the best of his ability.

(g)  Promptly and truthfully answer all inquiries directed to him by the probation and parole officer.

(h)  Live and remain at liberty and refrain from engaging in any type of criminal conduct.

(i)  Live and work at the places stated in his parole plan and not change residence or employment until after he has permission to do so from his parole officer.

(j)  Shall not have in his possession or control any firearms or dangerous weapons.

(k)  Submit himself to available medical, psychiatric, mental health, or substance abuse examination or treatment or both when deemed appropriate and ordered to do so by the probation and parole officer.

(l)  Waive extradition to the state of Louisiana from any jurisdiction in or outside the United States where he may be found and also agree that he will not contest any effort by any jurisdiction to return him to the state of Louisiana.

(m)  Will be subject to visits by his parole officer at his home or place of employment without prior notice.

(n)  Such other specific conditions as are appropriate, stated directly and without ambiguity so as to be understandable to a reasonable man.

(o)  Defray the cost, or any portion thereof, of his parole supervision by making payments to the Board of Parole in a sum and manner determined by the board, based upon his ability to pay.

(p)  Perform at least one hundred hours of unpaid community service work during the period of parole supervision and, if unemployed, perform additional hours as instructed by his supervising officers.

(q)  Devote himself to an approved reading program at his cost if he is unable to read the English language.

(r)  Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on parole is engaged in or has been engaged in criminal activity since his release on parole.

(5)  No offender, who is the parent, stepparent, or has legal custody and physical custody of the child who is the victim, shall be released on parole unless the victim has received psychological counseling prior to the offender's release if the offender is returning to the residence or community in which the child resides.  Such psychological counseling shall include an attempt by the health care provider to ease the psychological impact upon the child of the notice required under Paragraph (2) of this Subsection, including assisting the child in coping with potential insensitive comments and actions by the child's neighbors and peers.  The cost of such counseling shall be paid by the offender.

I.  At the time these written conditions are given, the board shall notify the parolee that:

(1)  If he is arrested while on parole, the board has the authority to place a detainer against him which will in effect prevent him from making bail pending any new charges against him; and

(2)  Should his parole be revoked for any reason, good time earned prior to parole and good time that would have been earned if parole had not been granted will be forfeited, as required by R.S. 15:571.4.

J.(1)  When a victim of the crime for which parole is being considered has suffered a direct pecuniary loss other than damage to or loss of property, the parole board may impose as a condition of parole that restitutions to the victim be made.  When such a condition is imposed, the board shall take into account the defendant's ability to pay and shall not revoke parole based upon this condition unless the parolee has willfully failed to comply.  When the victim's loss consists of damage to or loss of property, the board shall impose as a condition of parole payment of restitution, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.  If the victim was paid for such property loss or damage with monies from the Crime Victims Reparations Fund, the board shall order the parolee to make such payments as reimbursement to the fund in the same amount as was paid from the fund to the victim.  This condition of parole shall continue until such time as the restitution is paid or the parolee is discharged from parole in accordance with R.S. 15:574.6.

(2)  Nothing herein shall affect a victim's civil remedy except that funds actually received shall be credited to any civil judgment arising out of the same offense.

K.  If the prisoner has not paid and is liable for any costs of court or costs of the prosecution or proceeding in which he was convicted or any fine imposed as a part of his sentence, the board of parole shall require as a condition of parole the payment of such costs or fine, either in a lump sum or according to a schedule of payments established by the board and based upon the prisoner's ability to pay.

L.  Repealed by Acts 1993, No. 678, §2, eff. June 21, 1993.

M.  Before the Board of Parole places a person on parole, the board shall determine if he has a high school degree or its equivalent and, if he does not, the board shall condition parole upon the parolee's enrolling in and attending an adult education or reading program until he obtains a GED, or until he completes such educational programs required by the board, and has attained a sixth grade reading level, or until his term of parole expires, whichever occurs first.  All costs shall be paid by the parolee.  If the board finds that there are no adult education or reading programs in the parish in which the parolee is domiciled, the parolee is unable to afford such a program, or attendance would create an undue hardship on the parolee, the board may suspend this condition of parole.  The provisions of this Subsection shall not apply to those parolees who are mentally, physically, or by reason of age, infirmity, dyslexia, or other such learning disorders, unable to participate.

N.  The collection of the supervision fee imposed pursuant to Paragraph (H)(15) of this Section shall be suspended upon the transfer of an offender to another state for parole supervision in that state, pursuant to the interstate compact for out of state parolee supervision as provided in R.S. 15:574.14.

O.(1)  Before having a parole hearing for any offender who has been convicted of a violation of a sex offense as defined in R.S. 15:541(14.1), when the law permits parole consideration for that offense, and when according to law an offender convicted of one of those offenses is otherwise eligible for parole, the board shall give written notice of the date and time of the parole hearing at least three days prior to the hearing to the victim or the victim's parent or guardian, unless the victim, parent, or guardian has advised the board of parole in writing that such notification is not desired.

(2)  The victim or the victim's parent or guardian who desires to do so shall be given a reasonable opportunity to attend the hearing and to be heard.

P.  If a person who is otherwise eligible for intensive parole supervision pursuant to Paragraph (2) of Subsection A of this Section, has been convicted of one of the sexual offenses enumerated in Paragraph (2) of Subsection H and Paragraph (1) of Subsection O of this Section and the intensive parole supervision is applicable to any of those enumerated crimes, then Subsections H and O of this Section shall apply.

Q.  If a person, who is otherwise eligible for diminution of sentence for good behavior pursuant to R.S. 15:571.3, has been convicted of one of the sexual offenses enumerated in Paragraph (2) of Subsections H and O of this Section and the diminution of sentence for good behavior is applicable to any of those enumerated crimes, then Paragraphs (2) and (3) of Subsection H of this Section shall apply.

R.(1)  Before placing a person on parole, the Board of Parole shall require that person to submit to a test designed to determine whether he is infected with a sexually transmitted disease, acquired immune deficiency syndrome (AIDS), the human immunodeficiency virus (HIV), HIV-1 antibodies, or any other probable causative agent of AIDS, and viral hepatitis.

(2)  The procedure or test shall be performed by a qualified physician or other qualified person who shall notify the parolee of the test results.

(3)  If the person tested under the provisions of this Subsection tests positive for a sexually transmitted disease, AIDS, HIV, HIV-1 antibodies, or any other probable causative agent of AIDS, and viral hepatitis, he shall be referred to the appropriate health care and support services.  If the person tested positive, the granting of the parole shall be conditioned upon the person seeking advice and counseling from the appropriate health care and support services.  Failure to seek or follow that advice shall result in the revocation of that person's parole.

(4)  The costs associated with this testing shall be paid by the person tested.

(5)  The provisions of this Subsection shall not apply to inmates released because of diminution of sentence under R.S. 15:571.3.

S.(1)  In cases where parole is permitted by law and the offender is otherwise eligible, the Board of Parole shall not grant parole to any sex offender either by an order of the Board of Parole or office of adult services pursuant to R.S. 15:571.3 until the Department of Public Safety and Corrections, division of probation and parole, has assessed and approved the suitability of the residence plan of such offender.  In approving the residence plan of the offender, the department shall consider the likelihood that the offender will be able to comply with all of the conditions of his parole.

(2)  For purposes of this Subsection, "sex offender" shall mean any offender who has been convicted of, or where adjudication has been deferred or withheld for, the perpetration or attempted perpetration of a violation of a sex offense as defined in R.S. 15:541(14.1).

Amended by Acts Acts 1994, 3rd Ex. Sess., No. 58, §1, eff. July 7, 1994; Acts 1995, No. 605, §2, eff. June 18, 1995; Acts 1995, No. 1099, §1, eff. Jan. 1, 1997; Acts 1995, No. 1290, §2; Acts 1995, No. 1303, §1; Acts 1997, No. 134, §2; Acts 1997, No. 137, §2; Acts 1997, No. 820, §1; Acts 1997, No. 870, §1; Acts 1997, No. 1148, §2, eff. July 14, 1997; Acts 1997, No. 1396, §1, eff. July 15, 1997; Acts 1999, No. 119, §1; Acts 1999, No. 359, §1; Acts 1999, No. 923, §1; Acts 1999, No. 1150, §1; Acts 1999, No. 1209, §1; Acts 2001, No. 253, §1; Acts 2001, No. 611, §1; Acts 2001, No. 1206, §1; Acts 2003, No. 587, §1; Acts 2003, No. 868, §1; Acts 2005, No. 337, §1; Acts 2006, No. 26, §1; Acts 2006, No. 59, §1; Acts 2006, No. 68, §1.