No. 36560 (Amendment): Rule R671-203. Victim Input and Notification

(Amendment)

DAR File No.: 36560
Filed: 07/30/2012 03:47:53 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes procedure for notifying victims of hearings in accordance with state laws. Agency action, and this administrative rule, are authorized and required by Utah Constitution, Art I, Sec 28; Sections 77-27-9.5, 77-37-3, 77-37-4, and 77-38-1 et seq.; and Subsection 63G-3-201(3). The Board has statutory authority to enact administrative rules, pursuant to Section 77-27-1 et seq. and Subsection 77-27-9(4).

Summary of the rule or change:

This rule change clarifies procedure for notifying victims of offender hearings, as well as setting up victim impact hearings, in accordance with state laws.

State statutory or constitutional authorization for this rule:

• Art I, Sec 28
• Section 77-37-3
• Section 77-38-1 et seq.
• Section 77-27-9.5
• Section 77-27-1 et seq.
• Section 77-37-4
• Subsection 77-27-9(4)
• Subsection 63G-3-201(3)

Anticipated cost or savings to:

the state budget:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to the state budget. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

local governments:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to local governments. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

small businesses:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to small businesses. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

persons other than small businesses, businesses, or local governmental entities:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to any other person. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Compliance costs for affected persons:

There is no compliance cost for affected persons. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Chairman of the Board of Pardons and Parole has considered this rule amendment, and finds that there is no fiscal impact on businesses because of this rule amendment. Interested persons may present their views on the rule pursuant to Division of Administrative Rules process and procedures. A public meeting was scheduled, noticed, and held regarding this rule amendment on Monday, 07/16/2012, at 8:00 a.m. No person attended the hearing to comment on this rule amendment, and no comments have been received by the Board.

Clark A. Harms, Chairman

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

09/14/2012

This rule may become effective on:

09/21/2012

Authorized by:

Clark Harms, Chairman

RULE TEXT

R671. Pardons (Board of), Administration.

R671-203. Victim Input and Notification.

R671-203-1. General Provisions.

Pursuant to statute, the Department of Corrections shall provide the Board of Pardons with all available information concerning the impact a crime may have had upon the victim or victim's family. Pursuant to statute, the prosecutor of the case, and upon request of the Board, any other law enforcement official responsible for offender's arrest, conviction, and sentence, shall forward to the Board a victim impact statement referring to physical, mental or economic loss suffered by the victim or victim's family.

If a victim does not wish to give testimony or is unable to do so, a victim representative may be appointed by the victim, or if the victim is a minor, by the victim's parent(s) or lawful guardian or custodian, to speak on the victim's behalf. A family member of the victim may also testify if the victim is deceased as a result of the offense or if the victim is a child.

"Victim" for purposes of this Rule means:

A. [a]Any person, of any age, against whom an offender committed a felony or class A misdemeanor offense either personally or as a party to the offense, for which a prison sentence was imposed or for which the hearing is being held;

B. [i]In the discretion of the Board, any person, of any age, against whom a related crime or act is alleged to have been perpetrated or attempted;

C. [a]Any victim originally named in an allegation of criminal conduct who is not a victim of the offense to which the defendant entered a negotiated plea of guilty; and

D. [a]Any victim representative and family member as provided herein.

"Victim Representative" means a person who is designated by the victim or designated by the Board, who represents the victim in the best interests of the victim.

A victim or victim representative, who is appearing at a hearing where photographic equipment is being used by the media, will not be photographed without the approval of the victim and the individual presiding at the hearing.

Victims may contact the Board of Pardons, after any parole hearing, for information concerning the outcome of that hearing. Victims are advised that they may also contact the Utah State Prison Records Unit Supervisor for information on offender releases.

All persons attending hearings must comply with the security and clearance regulations of the facility where the hearing is held. These regulations include [a ]picture identification, appropriate dress, and no contraband. Contraband for this purpose includes but is not limited to purses/bags, cell phones, and other electronic devices. Visitors should arrive at the facility 15 to 20 minutes prior to the scheduled hearing to allow adequate time for the security clearance.

 

R671-203-2. Notification.

A. Notice of an offender's original parole hearing shall be timely sent to the victim at his most recent address of record with the board. The notice shall include:

(1) the date, time, and location of the hearing;

(2) a clear statement of the reason for the hearing, including all offenses involved;

(3) the statutes and rules applicable to the victim's participation in the hearing;

(4) the address and telephone number of an office or person the victim may contact for further explanation of the procedure regarding victim participation in the hearing;

(5) specific information about how, when, and where the victim may obtain the results of the hearing; and

(6) notification that the victim must maintain current contact information with the Board in order to receive future notifications of hearings affecting the offender's incarceration or parole.

B. If the victim is [dead]deceased, or the Board is otherwise unable to contact the victim, the Board shall make reasonable efforts to notify the victim's immediate family of the hearing.

C. Following the notice of the original hearing, a victim may elect to receive notice of any future parole grant hearing, parole revocation hearing or re-hearing. In order to do so, the victim shall notify the Board of the desire to receive future notices, and shall thereafter maintain current contact information with the Board.

D. For victims who elect to receive future notices, the Board will mail such notice to the victim's last current address of record or most recent contact information as provided to the Board.

 

R671-203-3. Right to Attend; Right to Testify.

As used in this section, "hearing" means a hearing for a parole grant or revocation, or a rehearing of either of these if the offender is present.

A victim may attend any hearing regarding the offender. A victim may testify during any hearing regarding the impact of the offense(s) upon the victim, and may present any[his views concerning] concerns or statements regarding any decision to be made regarding the offender.

The victim may request a re-scheduling or continuance of the hearing if travel or other significant conflict prohibits their attendance at the hearing.

 

R671-203-4. Victim Statements and Testimony.

A. A victim, victim representative or victim's family member (if the victim is a child, deceased or unable to attend due to physical incapacity), may testify regarding the impact of the offense(s) upon the victim, and may present any[his views concerning] concerns or statements regarding any decision to be made regarding the offender.

B. The testimony may be presented as a written statement, which may also be read aloud, if the presenter desires; or as oral testimony.

C. Oral testimony at hearings will be limited to five minutes in length per victim or representative. If a family member testifies, testimony should be limited to one family representative from the marital family (i.e. spouse or children) and/or one family representative from the nuclear/extended family (i.e. parent, sibling or grandparent). Under exceptional or extraordinary circumstances a victim may formally petition the Board to request additional testimony.

D. [The]A victim may present testimony during the hearing outside the presence of the offender. The offender will be excused from the hearing room so that the victim can give testimony, however, the offender may be able to hear the victim speak, depending on the facility where the hearing is conducted. The victim's testimony will be recorded or otherwise made available to the offender. At the conclusion of the testimony, the offender will be returned to the hearing room, and the Board will allow the offender to respond. A separate hearing will not be scheduled to allow for testimony outside the presence of the offender.

E. Victims who desire to testify at hearings shall notify the Board as far in advance of the hearing as possible so that appropriate arrangements can be made and adequate time allocated.

F. Victims or representatives should bring a written copy of their remarks to the hearing or send a copy to the Victim Coordinator for the Board file.

G. In cases where multiple victims desire to testify, the Board may reschedule the hearing to accommodate the extra time required to hear all victims. If Board business is not concluded by 5:00 p.m. on a hearing day, all remaining hearings may be rescheduled and visitors required to return.

 

R671-203-5. Victim Impact Hearings.

A. In any case where an offender's original parole hearing is set by Board administrative determination more than three years from the offender's commitment to prison, the victim, as defined by R671-203-1, may request that the Board conduct a victim impact hearing, in order to preserve victim impact testimony and victim statements for future use and reference by the Board.

B. The sole purpose of a victim impact hearing is to afford an opportunity for victim impact testimony and victim statements to be made in cases where an offender's original hearing is scheduled more than three years following commitment to prison, so that the victim is not denied an opportunity to participate in the offender's original hearing, simply because of the passage of time between the offender's commitment to prison and original hearing. A victim impact hearing is not a substitute for an original hearing. A victim impact hearing will not result in a review, re-scheduling or re-determination of an original hearing date.

C. Victims who request, and for whom victim impact hearings are conducted, retain all rights afforded pursuant to constitutional provision, statute or Board rule, including: the right to notice of the original hearing and any future hearings, as provided by R671-203-1 and R671-203-2; the right to attend any hearing for the offender, as provided by R671-203-1 and R671-203-3; and the right to testify and make future statements to the Board at ant hearing for the offender, as provided by R671-203-1 and R671-203-4.

D. Upon such a request from a victim, the Board shall schedule and conduct a victim impact hearing. In scheduling and conducting a victim impact hearing:

(1) All notice provisions of R671-202-1 and R671-203 et seq. shall apply.

(2) All victim appearance, testimony and statement provisions of R671-203 shall apply.

(3) The offender shall be present, pursuant to the provisions of R671-301, and shall be afforded an opportunity to respond to the victim's testimony or statement. However, this is not an opportunity for the offender to discuss his/her conviction or potential release.

(4) The victim impact hearing shall be recorded, pursuant to the provisions of R671-304.

 

KEY: victims of crimes

Date of Enactment or Last Substantive Amendment: [September 27, 2007]2012

Notice of Continuation: January 31, 2012

Authorizing, and Implemented or Interpreted Law: Art. I, Sec. 28; 77-27-9.5; 77-37-3; 77-37-4; 77-38-1 et seq.; 63G-3-201(3); 77-27-1 et seq.; 77-27-9(4)[77-27-13; 64-13-20]

 

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