Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 63 Second Substitute (2024GS)

Sponsor

Sen. Pitcher, S.

Final action

Governor Signed 3/13/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• clarifies provisions concerning sentencing, credit for time served, and competency proceedings to reflect the existing jurisdiction of the Board of Pardons and Parole (board);
• provides that the board may intervene in certain proceedings;
• modifies provisions relating to offender eligibility for the earned time program;
• modifies provisions relating to when the board may stay the determination of an offender's hearing date for certain proceedings;
• replaces the term "alienist" with "licensed mental health professional" for certain examinations;
• grants the board the ability to appoint counsel or a lay representative for an offender under certain conditions; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

BOARD OF PARDONS AND PAROLE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Stephanie Pitcher
House Sponsor: 
____________
LONG TITLE
General Description:
This bill modifies provisions relating to the Board of Pardons and Parole.
Highlighted Provisions:
This bill:
▸ clarifies provisions concerning sentencing, credit for time served, and competency
proceedings to reflect the existing jurisdiction of the Board of Pardons and Parole
(board);
▸ provides that the board may intervene in certain proceedings;
▸ modifies provisions relating to offender eligibility for the earned time program;
▸ modifies provisions relating to when the board may stay the determination of an
offender's hearing date for certain proceedings;
▸ replaces the term "alienist" with "licensed mental health professional" for certain
examinations;
▸ grants the board the ability to appoint counsel or a lay representative for an offender
under certain conditions; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-3-201
, as last amended by Laws of Utah 2023, Chapters 184, 497
77-15-3
, as last amended by Laws of Utah 2018, Chapter 147
77-18-111
, as renumbered and amended by Laws of Utah 2021, Chapter 260
77-27-5
, as last amended by Laws of Utah 2023, Chapters 151, 173
77-27-5.4
, as last amended by Laws of Utah 2016, Third Special Session, Chapter 4
77-27-7
, as last amended by Laws of Utah 2022, Chapter 430
ENACTS:
77-27-7.1
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-3-201
 is amended to read:
76-3-201.
Sentences or combination of sentences allowed -- Restitution and other
costs -- Civil penalties.
(1) As used in this section:
(a) (i) "Convicted" means:
(A) having entered a plea of guilty, a plea of no contest, or a plea of guilty with a
mental condition; or
(B) having received a judgment of guilty or a judgment of guilty with a mental
condition.
(ii) "Convicted" does not include an adjudication of an offense under Section 
80-6-701
.
(b) "Restitution" means the same as that term is defined in Section 
77-38b-102
.
(2) Within the limits provided by this chapter, a court may sentence an individual
convicted of an offense to any one of the following sentences, or combination of the following
sentences:
(a) to pay a fine;
(b) to removal or disqualification from public or private office;
(c) except as otherwise provided by law, to probation in accordance with Section
77-18-105
;
(d) 
in accordance with Subsection 
77-18-111
(4),
 to imprisonment;
(e) on or after April 27, 1992, to life in prison without parole; or
(f) to death.
(3) (a) This chapter does not deprive a court of authority conferred by law:
(i) to forfeit property;
(ii) to dissolve a corporation;
(iii) to suspend or cancel a license;
(iv) to permit removal of an individual from office;
(v) to cite for contempt; or
(vi) to impose any other civil penalty.
(b) A court may include a civil penalty in a sentence.
(4) In addition to any other sentence that a sentencing court may impose, the court shall
order an individual to:
(a) pay restitution in accordance with Title 77, Chapter 38b, Crime Victims Restitution
Act;
(b) subject to Section 
77-32b-104
, pay the cost expended by an appropriate
governmental entity under Section 
77-30-24
 for the extradition of the individual if the
individual:
(i) was extradited to this state, under Title 77, Chapter 30, Extradition, to resolve
pending criminal charges; and
(ii) is convicted of an offense in the county for which the individual is returned;
(c) subject to Subsection (5) and Subsections 
77-32b-104
(2), (3), and (4), pay the cost
of medical care, treatment, hospitalization, and related transportation, as described in Section
17-50-319
, that is provided by a county to the individual while the individual is in a county
correctional facility before and after sentencing if:
(i) the individual is convicted of an offense that results in incarceration in the county
correctional facility; and
(ii) (A) the individual is not a state prisoner housed in the county correctional facility
through a contract with the Department of Corrections; or
(B) the reimbursement does not duplicate the reimbursement under Section 
64-13e-104
if the individual is a state probationary inmate or a state parole inmate; and
(d) pay any other cost that the court determines is appropriate under Section
77-32b-104
.
(5) The cost of medical care under Subsection (4)(c) does not include expenses
incurred by the county correctional facility in providing reasonable accommodation for an
inmate qualifying as an individual with a disability as defined and covered by the Americans
with Disabilities Act, 42 U.S.C. 12101 through 12213, including medical and mental health
treatment for the inmate's disability.
Section 2. Section 
77-15-3
 is amended to read:
77-15-3.
Petition for inquiry regarding defendant -- Filing -- Contents.
(1) When a defendant charged with a public offense [
or serving a sentence of
imprisonment
] is incompetent to proceed, an individual described in Subsection (2)(b) may file
a petition in the district court of the county where the charge is pending or where the defendant
is confined.
(2) (a) 
(i)
 The petition shall contain a certificate that it is filed in good faith and on
reasonable grounds to believe the defendant is incompetent to proceed.
(ii)
 The petition shall contain a recital of the facts, observations, and conversations
with the defendant that have formed the basis for the petition.
(iii)
 If filed by defense counsel, the petition may not disclose information in violation
of the attorney-client privilege.
(b) The petition may be based upon knowledge or information and belief and may be
filed by the defendant, any person acting on behalf of the defendant, the prosecuting attorney,
or any person having custody or supervision over the defendant.
Section 3. Section 
77-18-111
 is amended to read:
77-18-111.
Sentence -- Term -- Construction.
(1) If an individual is convicted of a crime and the judgment provides for a
commitment to the state prison, the court shall not fix a definite term of imprisonment unless
otherwise provided by law.
(2) The sentence and judgment of imprisonment shall be for an indeterminate term of
not less than the minimum and not to exceed the maximum term provided by law for the
particular crime.
(3) Except as otherwise expressly provided by law, every sentence, regardless of the
sentence's form or terms, which purports to be for a shorter or different period of time, shall be
construed to be a sentence for the term between the minimum and maximum periods of time
provided by law and shall continue until the maximum period has been reached unless sooner
terminated or commuted by authority of the board.
(4) (a) A court may not order that a term of imprisonment commences before the day
upon which the sentence of imprisonment is imposed.
(b) The board may grant an individual credit for time served or other credit against a
sentence, including as provided in Subsection 
76-3-208
(1)(b) or Section 
76-3-403
 or 
77-27-5.4
.
Section 4. Section 
77-27-5
 is amended to read:
77-27-5.
Board of Pardons and Parole authority.
(1) (a) Subject to this chapter and other laws of the state, and except for a conviction
for treason or impeachment, the board shall determine by majority decision when and under
what conditions an offender's conviction may be pardoned or commuted.
(b) The [
Board of Pardons and Parole
] 
board
 shall determine by majority decision
when and under what conditions an offender committed to serve a sentence at a penal or
correctional facility, which is under the jurisdiction of the department, may:
(i) be released upon parole;
(ii) have a fine or forfeiture remitted;
(iii) have the offender's criminal accounts receivable remitted in accordance with
Section 
77-32b-105
 or 
77-32b-106
;
(iv) have the offender's payment schedule modified in accordance with Section
77-32b-103
; or
(v) have the offender's sentence terminated.
(c) The board shall prioritize public safety when making a determination under
Subsection (1)(a) or (1)(b).
(d) (i) The board may sit together or in panels to conduct hearings.
(ii) The chair shall appoint members to the panels in any combination and in
accordance with rules made 
by the board
 in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act[
, by the board
].
(iii) The chair may participate on any panel and when doing so is chair of the panel.
(iv) The chair of the board may designate the chair for any other panel.
(e) (i) Except after a hearing before the board, or the board's appointed examiner, in an
open session, the board may not:
(A) remit a fine or forfeiture for an offender or the offender's criminal accounts
receivable;
(B) release the offender on parole; or
(C) commute, pardon, or terminate an offender's sentence.
(ii) An action taken under this Subsection (1) other than by a majority of the board
shall be affirmed by a majority of the board.
(f) A commutation or pardon may be granted only after a full hearing before the board.
(2) (a) In the case of [
any hearings
] 
a hearing
, timely prior notice of the time and
location of the hearing shall be given to the offender.
(b) The county or district attorney's office responsible for prosecution of the case, the
sentencing court, and law enforcement officials responsible for the defendant's arrest and
conviction shall be notified of any board hearings through the board's website.
(c) Whenever possible, the victim or the victim's representative, if designated, shall be
notified of original hearings and any hearing after that if notification is requested and current
contact information has been provided to the board.
(d) (i) Notice to the victim or the victim's representative shall include information
provided in Section 
77-27-9.5
, and any related rules made by the board under that section.
(ii) The information under Subsection (2)(d)(i) shall be provided in terms that are
reasonable for the lay person to understand.
(3) (a) A decision by the board is final and not subject for judicial review if the
decision is regarding:
(i) a pardon, parole, commutation, or termination of an offender's sentence;
(ii) the modification of an offender's payment schedule for restitution; or
(iii) the remission of an offender's criminal accounts receivable or a fine or forfeiture.
(b) Deliberative processes are not public and the board is exempt from Title 52,
Chapter 4, Open and Public Meetings Act, when the board is engaged in the board's
deliberative process.
(c) Pursuant to Subsection 
63G-2-103
(25)(b)(xi), records of the deliberative process
are exempt from Title 63G, Chapter 2, Government Records Access and Management Act.
(d) Unless it will interfere with a constitutional right, deliberative processes are not
subject to disclosure, including discovery.
(e) Nothing in this section prevents the obtaining or enforcement of a civil judgment.
(4) (a) This chapter may not be construed as a denial of or limitation of the governor's
power to grant respite or reprieves in all cases of convictions for offenses against the state,
except treason or conviction on impeachment.
(b) Notwithstanding Subsection (4)(a), respites or reprieves may not extend beyond the
next session of the [
Board of Pardons and Parole
] 
board
.
(c) At the next session of the board, the board:
(i) shall continue or terminate the respite or reprieve; or
(ii) may commute the punishment or pardon the offense as provided.
(d) In the case of conviction for treason, the governor may suspend execution of the
sentence until the case is reported to the Legislature at the Legislature's next session.
(e) The Legislature shall pardon or commute the sentence or direct the sentence's
execution.
(5) (a) In determining when, where, and under what conditions an offender serving a
sentence may be paroled or pardoned, have a fine or forfeiture remitted, have the offender's
criminal accounts receivable remitted, or have the offender's sentence commuted or terminated,
the board shall:
(i) consider whether the offender has made restitution ordered by the court under
Section 
77-38b-205
, or is prepared to pay restitution as a condition of any parole, pardon,
remission of a criminal accounts receivable or a fine or forfeiture, or a commutation or
termination of the offender's sentence;
(ii) except as provided in Subsection (5)(b), develop and use a list of criteria for
making determinations under this Subsection (5);
(iii) consider information provided by the [
Department of Corrections
] 
department
regarding an offender's individual case action plan; and
(iv) review an offender's status within 60 days after the day on which the board
receives notice from the [
Department of Corrections
] 
department
 that the offender has
completed all of the offender's case action plan components that relate to activities that can be
accomplished while the offender is imprisoned.
(b) The board shall determine whether to remit an offender's criminal accounts
receivable under this Subsection (5) in accordance with Section 
77-32b-105
 or 
77-32b-106
.
(6) In determining whether parole may be terminated, the board shall consider:
(a) the offense committed by the parolee; and
(b) the parole period under Section 
76-3-202
, and in accordance with Section
77-27-13
.
(7) For an offender placed on parole after December 31, 2018, the board shall
terminate parole in accordance with the supervision length guidelines established by the Utah
Sentencing Commission under Section 
63M-7-404
, to the extent the guidelines are consistent
with the requirements of the law.
(8) The board may intervene in any judicial or administrative proceeding, including a
criminal action, in which the board's jurisdiction may be affected.
Section 5. Section 
77-27-5.4
 is amended to read:
77-27-5.4.
Earned time program.
(1) The board shall establish an earned time program that reduces the period of
incarceration for offenders who successfully complete specified programs, the purpose of
which is to reduce the risk of recidivism.
(2) The earned time program shall:
(a) provide not less than four months of earned time credit each for the completion of
up to two programs that:
(i) are approved by the board in collaboration with the [
Department of Corrections
]
department
; and
(ii) are recommended programs that are part of the offender's case action plan; and
(b) allow the board to grant in [
its
] 
the board's
 discretion earned time credit in addition
to the earned time credit provided under Subsection (2)(a).
(3) The earned time program may not provide earned time credit for [
offenders
] 
an
offender
:
(a) whose previously ordered release date does not provide enough time, including time
for transition services, for the [
Board of Pardons and Parole
] 
board
 to grant the earned time
credit;
(b) who [
have
] 
has
 been sentenced by the court to a term of life without the possibility
of parole;
(c) who [
have
] 
has
 been ordered by the [
Board of Pardons and Parole
] 
board
 to serve
until the expiration of the offender's sentence, including
 a life sentence;
(d) who [
do
] 
does
 not have a current release date; [
or
]
(e) who [
have
] 
has
 not met a contingency requirement for release that has been ordered
by the board[
.
]
; or
(f) who has been given a termination date by the board.
(4) The board may order the forfeiture of earned time credits under this section if [
it
]
the board
 determines a rescission hearing is necessary.
(5) The department shall notify the board not more than 30 days after an offender
completes a program as defined in Subsection [
77-27-5.4
(2)(a)
] 
(2)(a)
.
(6) The board shall collect data for the fiscal year regarding the operation of the earned
time credit program, including:
(a) the number of offenders who have earned time credit under this section in the prior
year;
(b) the amount of time credit earned in the prior year;
(c) the number of offenders who forfeited earned time credit; and
(d) additional related information as requested by the Commission on Criminal and
Juvenile Justice.
(7) The board shall collaborate with the [
Department of Corrections
] 
department
 in the
establishment of the earned time credit program.
(8) To the extent possible, programming and hearings shall be provided early enough
in an offender's incarceration to allow the offender to earn time credit.
Section 6. Section 
77-27-7
 is amended to read:
77-27-7.
Parole or hearing dates -- Interview -- Hearings -- Report of licensed
mental health professional -- Mental competency -- Rulemaking authority.
[
(1) The Board of Pardons and Parole shall determine within six months after the date
of an offender's commitment to the custody of the Department of Corrections, for serving a
sentence upon conviction of a felony or class A misdemeanor offense, a date upon which the
offender shall be afforded a hearing to establish a date of release or a date for a rehearing, and
shall promptly notify the offender of the date.
]
(1) (a) For an offender serving a sentence upon conviction of a felony or class A
misdemeanor offense, the board shall:
(i) within six months after the day on which the offender is committed to the custody of
the department, set a hearing date to establish the offender's release date or date for rehearing;
and
(ii) promptly notify the offender of the date described in Subsection (1)(a)(i).
(b) (i) The board may delay setting the hearing date described in Subsection (1)(a)(i) if
the offender has an additional pending criminal case at the time of the offender's commitment
to the custody of the department.
(ii) For purposes of Subsection (1)(b)(i), a pending criminal case includes:
(A) uncharged conduct that is being screened for prosecution; and
(B) charged conduct that has not reached resolution.
(c) If the board delays setting the hearing date as described in Subsection (1)(b), the
board shall set a hearing date no later than six months after the day on which the final criminal
case described in Subsection (1)(b) has been resolved.
(2) 
(a)
 Before reaching a final decision to release [
any
] 
an
 offender under this chapter,
the chair shall cause the offender to appear before the board, [
its
] 
the board's
 panel, or [
any
] 
an
appointed hearing officer, who shall personally interview the offender to consider the
offender's fitness for release and verify as far as possible information furnished from other
sources.
(b)
 [
Any
] 
An
 offender may waive a personal appearance before the board. [
Any
]
(c) (i) An
 offender outside of the state shall, if ordered by the board, submit to a
courtesy hearing to be held by the appropriate authority in the jurisdiction in which the offender
is housed in lieu of an appearance before the board.
(ii)
 The offender shall be promptly notified in writing of the board's decision.
(3) (a) In the case of an offender convicted of violating or attempting to violate any of
the provisions of Section 
76-5-301.1
, Subsection 
76-5-302
(2)(b)(vi), Section 
76-5-402
,
76-5-402.1
, 
76-5-402.2
, 
76-5-402.3
, 
76-5-403
, 
76-5-403.1
, 
76-5-404
, 
76-5-404.1
, 
76-5-404.3
,
or 
76-5-405
, the chair may appoint one or more [
alienists
] 
licensed mental health professionals
who shall examine the offender within six months prior to a hearing at which an original parole
date is granted on any offense listed in this Subsection (3).
(b) 
(i)
 The [
alienists
] 
licensed mental health professional
 shall report in writing the
results of the examination to the board prior to the hearing.
(ii)
 The report of the appointed [
alienists
] 
licensed mental health professional
 shall
specifically address the question of the offender's current mental condition and attitudes as they
relate to any danger the offender may pose to children or others if the offender is released on
parole.
(4) A parolee may petition the board for termination of lifetime parole as provided in
Section 
76-3-202
 in the case of a parolee convicted of a first degree felony violation, or
convicted of attempting to violate Section 
76-5-301.1
, Subsection 
76-5-302
(2)(b)(vi), Section
76-5-402
, 
76-5-402.1
, 
76-5-402.2
, 
76-5-402.3
, 
76-5-403
, 
76-5-403.1
, 
76-5-404.1
, 
76-5-404.3
,
or 
76-5-405
, and released on parole before January 1, 2019.
(5) In [
any
] 
a
 case [
where
] 
in which
 an offender's mental competency is questioned by
the board, the chair may appoint one or more [
alienists
] 
licensed mental health professionals
 to
examine the offender and report in writing to the board, specifically addressing the issue of
competency.
(6) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
board shall make rules governing:
(a) the hearing process;
(b) [
alienist examination
] 
licensed mental health professional examinations
; and
(c) parolee petitions for termination of parole.
Section 7. Section 
77-27-7.1
 is enacted to read:
 77-27-7.1.
Appointment of counsel or lay representative -- Procedures.
(1) If the board in the board's discretion determines that an offender within the board's
jurisdiction is unable, due to physical, mental, or other circumstances, to meaningfully
participate in a board hearing or other board proceeding, the board may appoint, at the board's
own expense, legal counsel or a lay representative to assist the offender.
(2) The board shall determine the scope of the representation described in Subsection
(1) based on a review of the totality of the circumstances.
(3) This section does not prevent the board from:
(a) appointing a licensed mental health professional in accordance with Section
77-27-7
; or
(b) otherwise seeking information concerning the offender from the department or
another entity.
Section 8. 
Effective date.
This bill takes effect on May 1, 2024.