Relates to certain persons sentenced to parole supervision

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 assessments as to whether an inmate, from a medical perspective, could safely participate in the rigorous program that is part of the Willard regime. If a court sentences a defendant to a parole supervision sentence, 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, DOCS' 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 supervision.

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 participate in a 90-day drug treatment program, and even though DOCS has notified the sentencing court of the alternative placement, the habeas corpus judge has been ordering the immediate release into the community of these offenders 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 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.