No. 40707 (Emergency Rule): Rule R671-201. Original Hearing Schedule and Notice

DAR File No.: 40707
Filed: 08/25/2016 03:04:45 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule change is to require the Board to set earlier original hearings for individuals who committed a homicide offense as a minor and individuals sentenced to three years to life.

Summary of the rule or change:

Original hearings for individuals who committed a homicide offense as a minor will be set at less than 15 years. Original hearings for individuals sentenced to three years to life will be scheduled after the service of twelve months as opposed to the previous requirement of three years. (Editor's Note: A corresponding proposed amendment to Rule R671-201 is under Filing No. 40708 in this issue, September 15, 2016, Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: Case law requires a certain standard of review when an individual who is sentenced to life in prison for an offense that was committed when the individual was a minor. If the sentence is three years to life, the Board must conduct the original hearing before the minimum sentence, which is less than three years.

Statutory or constitutional authorization for this rule:

• Section 77-27-5
• Art VII Sec 12
• Section 77-27-9
• Section 77-27-7

Anticipated cost or savings to:

the state budget:

Hearings are already required. The change only affects the timing of the hearing and does not create any revenue or increase costs for the agency.

local governments:

Local government does not participate in parole hearings and is not impacted by the proposed change.

small businesses:

Small business does not participate in parole hearings and is not impacted by the proposed change.

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

The inmate benefits by having an earlier review of the inmates' parole status. Parole hearings are at no cost to the inmate. The proposed change does not create any cost to the inmate.

Compliance costs for affected persons:

Parole hearings are at no cost to the inmate. The proposed change does not create any cost to the inmate.

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

Businesses are not involved in parole hearings and will not be impacted. The change only moves up the date of the original hearing.

Angela Micklos, Chair

The full text of this rule may be inspected, during regular business hours, at the Office 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:

• Greg Johnson at the above address, by phone at 801-261-6454, by FAX at 801-261-6481, or by Internet E-mail at [e-mail]

This rule is effective on:

08/25/2016

Authorized by:

Angela Micklos, Chair

RULE TEXT

R671. Pardons (Board of), Administration.

R671-201. Original Hearing Schedule and Notice.

R671-201-1. Schedule and Notice.

(1)(a) Within six months of an offender's commitment to prison the Board shall give notice of the month and year in which the inmate's original hearing will be conducted.

(b) A minimum of seven days prior notice should be given regarding the specific day and approximate time of such hearing.

(2)(a) Homicide offense commitment, for purposes of this rule, means a prison commitment to serve a sentence for a conviction of aggravated murder (if the sentence includes the possibility of parole), murder, felony murder, manslaughter, child abuse homicide, negligent homicide, automobile homicide, homicide by assault, any attempt, conspiracy or solicitation to commit any of these offenses, and any other offense, regardless of title, description or severity, when it is known at the time of sentencing that the offense conduct resulted in the death of any person.

(b) Sexual offense commitment, for purposes of this rule, means a prison commitment to serve a sentence for a conviction of any crime for which an offender is defined as a kidnap offender pursuant to Utah Code Ann. Subsection 77-41-102(9); or for which an offender is defined as a sex offender pursuant to Utah Code Ann. Subsection 77-41-102(16); or any attempt, conspiracy or solicitation to commit any of the offenses listed in those sections.

(3)(a) All homicide offense commitments eligible for parole shall be routed to the Board as soon as practicable for the determination of the month and year for an original hearing.

(b) The Board shall determine, by majority vote, the month and year of an original hearing for an offender serving a homicide offense commitment.

(c) In setting an original hearing for a homicide offense commitment, the Board shall only consider information available to the court or offender at the time of sentencing.

(d) Homicide offense commitments not eligible for parole , [(]including sentences of life without parole or death[)], [shall]may not be scheduled for original hearings.

(e) If the offender is less than 18 years of age at the time of the homicide offense and the offense is eligible for parole, the original hearing shall be scheduled no later than 15 years after the date of sentencing.

(4) If the offender is less than 18 years of age at the time of commitment and the offense is eligible for parole, the case shall be routed to the Board as soon as practicable for the determination, by majority vote, of the month and year for an original hearing.

(5) When an offender's prison commitment does not include a homicide offense commitment, an offender is eligible to have an original hearing before the Board as follows:

(a) After the service of fifteen years for first degree felony commitments when the most severe sentence imposed and being served is a sentence greater than 15 years to life, excluding enhancements.

(b) After the service of seven years for first degree felony commitments when the most severe sentence imposed and being served is a sentence of 10 years to life, or 15 years to life, excluding enhancements.

(c) After the service of three years for all other first degree felony commitments.

(d) After the service of twelve months if the most serious offense of incarceration is: (i) a second degree felony sexual offense commitment; or (ii) a first degree felony which is three to life.

(e) After the service of six months for all other second degree felony commitments.

(f) After the service of six months if the most serious offense of incarceration is a third degree felony sexual offense commitment.

(g) After the service of three months for all other third degree felony and class A misdemeanor commitments.

(6)(a) An offender may request that their original appearance and hearing before the Board be scheduled other than as provided by this rule. An offender's request shall specify the extraordinary circumstances or reasons which give rise to the request. The Board may grant or deny the offender's request in its sole discretion.

(b) The Board may, in its discretion, depart from the schedule as provided by this rule if:

(i) an offender requests a continuance due to extraordinary circumstances;

(ii) an offender has unadjudicated criminal charges pending at the time a hearing would normally be scheduled;

(iii) a Class A misdemeanor commitment has expired prior to an original hearing; or

(iv) the Board determines that other unusual or extraordinary circumstances impact the setting of an original hearing.

 

KEY: parole, inmates, hearings

Date of Enactment or Last Substantive Amendment: August 25, 2016

Notice of Continuation: September 22, 2014

Authorizing, and Implemented or Interpreted Law: Art VII Sec 12; 77-27-5; 77-27-7; 77-27-9

---