2006 Regular Session
To: Juvenile Justice; Corrections
By: Representative Hines
AN ACT TO AMEND SECTION 43-21-605, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JUVENILE OFFENDERS MAY BE SENTENCED TO THE INTENSIVE SUPERVISION PROGRAM ADMINISTERED BY THE DEPARTMENT OF CORRECTIONS; TO PROVIDE THAT THE MINIMUM SENTENCE UNDER THIS PROGRAM SHALL BE SIX MONTHS FOR JUVENILE OFFENDERS; TO REQUIRE JUVENILE OFFENDERS TO BE TESTED FOR ALCOHOL AND DRUGS; TO REQUIRE JUVENILE OFFENDERS TO PAY $10.00 FOR THE TEST; TO PROVIDE THAT IF A JUVENILE OFFENDER TESTS POSITIVE FOR ALCOHOL OR DRUGS HE OR SHE SHALL BE REQUIRED TO ATTEND AN ALCOHOL AND DRUG REHABILITATION PROGRAM; TO REENACT SECTIONS 47-5-1001, 47-5-1003, 47-5-1005, 47-5-1007, 47-5-1009, 47-5-1011, 47-5-1013 AND 47-5-1015, MISSISSIPPI CODE OF 1972, WHICH ESTABLISH THE INTENSIVE SUPERVISION PROGRAM AND PERMIT A COURT TO PLACE AN OFFENDER IN THE PROGRAM AS AN ALTERNATIVE TO INCARCERATION, PROVIDE RULES AND GUIDELINES FOR OPERATION OF THE PROGRAM AND PROVIDE PAYMENT OF FEES BY PARTICIPANTS OF THE PROGRAM; TO AMEND REENACTED SECTION 47-5-1007, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JUVENILE OFFENDERS SENTENCED TO THE INTENSIVE SUPERVISION PROGRAM SHALL PAY A MONTHLY FEE TO OFFSET THE COST OF THE INTENSIVE SUPERVISION PROGRAM; TO AMEND REENACTED SECTION 47-5-1013, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT JUVENILE OFFENDERS SHALL NOT PAY A PROGRAM FEE BUT SHALL PAY A MONTHLY FEE; TO AMEND REENACTED SECTION 47-5-1003, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND REENACTED SECTION 47-5-1015, MISSISSIPPI CODE OF 1972, TO EXTEND THE DATE OF REPEAL ON THE REENACTED SECTIONS FROM JUNE 30, 2006, TO JUNE 30, 2008; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-605, Mississippi Code of 1972, is amended as follows:
43-21-605. (1) In delinquency cases, the disposition order may include any of the following alternatives:
(a) Release the child without further action;
(b) Place the child in the custody of the parents, a relative or other persons subject to any conditions and limitations, including restitution, as the youth court may prescribe;
(c) Place the child on probation subject to any reasonable and appropriate conditions and limitations, including restitution, as the youth court may prescribe;
(d) Order terms of treatment calculated to assist the child and the child's parents or guardian which are within the ability of the parent or guardian to perform;
(e) Order terms of supervision which may include participation in a constructive program of service or education or civil fines not in excess of Five Hundred Dollars ($500.00), or restitution not in excess of actual damages caused by the child to be paid out of his own assets or by performance of services acceptable to the victims and approved by the youth court and reasonably capable of performance within one (1) year;
(f) Suspend the child's driver's license by taking and keeping it in custody of the court for not more than one (1) year;
(g) Give legal custody of the child to any of the following:
(i) The Department of Human Services for appropriate placement; or
(ii) Any public or private organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court; or
(iii) The Department of Human Services for placement in a wilderness training program or the Division of Youth Services for placement in a state-supported training school, except that no child under the age of ten (10) years shall be committed to a state training school, and no first-time nonviolent youth offenders shall be committed to a state training school until all other options provided for in this section have been considered and the court makes a specific finding of fact that commitment is appropriate. The training school may retain custody of the child until the child's twentieth birthday but for no longer. When the child is committed to a training school, the child shall remain in the legal custody of the training school until the child has made sufficient progress in treatment and rehabilitation and it is in the best interest of the child to release the child. However, the superintendent of a state training school, in consultation with the treatment team, may parole a child at any time he may deem it in the best interest and welfare of such child. Twenty (20) days prior to such parole, the training school shall notify the committing court of the pending release. The youth court may then arrange subsequent placement after a reconvened disposition hearing, except that the youth court may not recommit the child to the training school or any other secure facility without an adjudication of a new offense or probation or parole violation. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child. No child shall be placed in the custody of a state training school for a status offense or for contempt of or revocation of a status offense adjudication unless the child is contemporaneously adjudicated for having committed an act of delinquency that is not a status offense. A disposition order rendered under this subparagraph shall meet the following requirements:
1. The disposition is the least restrictive alternative appropriate to the best interest of the child and the community;
2. The disposition allows the child to be in reasonable proximity to the family home community of each child given the dispositional alternatives available and the best interest of the child and the state; and
3. The disposition order provides that the court has considered the medical, educational, vocational, social and psychological guidance, training, social education, counseling, substance abuse treatment and other rehabilitative services required by that child as determined by the court;
(h) Recommend to the child and the child's parents or guardian that the child attend and participate in the Youth Challenge Program under the Mississippi National Guard, as created in Section 43-27-203, subject to the selection of the child for the program by the National Guard; however, the child must volunteer to participate in the program. The youth court shall not order any child to apply or attend the program;
(i) (i) Adjudicate the juvenile to the Statewide Juvenile Work Program if the program is established in the court's jurisdiction. The juvenile and his parents or guardians must sign a waiver of liability in order to participate in the work program. The judge will coordinate with the youth services counselors as to placing participants in the work program;
(ii) The severity of the crime, whether or not the juvenile is a repeat offender or is a felony offender will be taken into consideration by the judge when adjudicating a juvenile to the work program. The juveniles adjudicated to the work program will be supervised by police officers or reserve officers. The term of service will be from twenty-four (24) to one hundred twenty (120) hours of community service. A juvenile will work the hours to which he was adjudicated on the weekends during school and weekdays during the summer. Parents are responsible for a juvenile reporting for work. Noncompliance with an order to perform community service will result in a heavier adjudication. A juvenile may be adjudicated to the community service program only two (2) times;
(iii) The judge shall assess an additional fine on the juvenile which will be used to pay the costs of implementation of the program and to pay for supervision by police officers and reserve officers. The amount of the fine will be based on the number of hours to which the juvenile has been adjudicated;
(j) Order the child to participate in a youth court work program as provided in Section 43-21-627; * * *
(k) Order terms of house arrest under the intensive supervision program as created in Sections 47-5-1001 through 47-5-1015. The Department of Corrections shall take bids for the program provided by this act. The Department of Human Services shall promulgate rules regarding the supervision of juveniles placed in the intensive supervision program. There shall be one thousand five hundred (1,500) slots created in the intensive supervision program for juveniles. Any juvenile sentenced to house arrest shall be tested for alcohol and drugs, and if the juvenile tests positive for alcohol or drugs, the juvenile shall be ordered to participate in an alcohol and drug rehabilitation program. The juvenile shall pay Ten Dollars ($10.00) to offset the cost of administering the alcohol and drug test. The juveniles must attend school, alternative school or be in the process of working toward a general educational development (GED) certificate;
(l) Order the child into a juvenile detention center operated by the county or into a juvenile detention center operated by any county with which the county in which the court is located has entered into a contract for the purpose of housing delinquents. The time period for such detention cannot exceed ninety (90) days, and any detention exceeding forty-five (45) days shall be administratively reviewed by the youth court no later than forty-five (45) days after the entry of the order. The youth court judge may order that the number of days specified in the detention order be served either throughout the week or on weekends only. No first-time nonviolent youth offender shall be committed to a detention center for a period of ninety (90) days until all other options provided for in this section have been considered and the court makes a specific finding of fact that commitment to a detention center is appropriate. However, if a child is committed to a detention center ninety (90) consecutive days, the disposition order shall meet the following requirements:
(i) The disposition order is the least restrictive alternative appropriate to the best interest of the child and the community;
(ii) The disposition order allows the child to be in reasonable proximity to the family home community of each child given the dispositional alternatives available and the best interest of the child and the state; and
(iii) The disposition order provides that the court has considered the medical, educational, vocational, social and psychological guidance, training, social education, counseling, substance abuse treatment and other rehabilitative services required by that child as determined by the court; or
(m) Referral to A-team provided system of care services.
(2) In addition to any of the disposition alternatives authorized under subsection (1) of this section, the disposition order in any case in which the child is adjudicated delinquent for an offense under Section 63-11-30 shall include an order denying the driver's license and driving privileges of the child as required under Section 63-11-30(9).
(3) If the youth court places a child in a state-supported training school, the court may order the parents or guardians of the child and other persons living in the child's household to receive counseling and parenting classes for rehabilitative purposes while the child is in the legal custody of the training school. A youth court entering an order under this subsection (3) shall utilize appropriate services offered either at no cost or for a fee calculated on a sliding scale according to income unless the person ordered to participate elects to receive other counseling and classes acceptable to the court at the person's sole expense.
(4) Fines levied under this chapter shall be paid into the general fund of the county but, in those counties wherein the youth court is a branch of the municipal government, it shall be paid into the municipal treasury.
(5) Any institution or agency to which a child has been committed shall give to the youth court any information concerning the child as the youth court may at any time require.
(6) The youth court shall not place a child in another school district who has been expelled from a school district for the commission of a violent act. For the purpose of this subsection, "violent act" means any action which results in death or physical harm to another or an attempt to cause death or physical harm to another.
(7) The youth court may require drug testing as part of a disposition order. If a child tests positive, the court may require treatment, counseling and random testing, as it deems appropriate. The costs of such tests shall be paid by the parent, guardian or custodian of the child unless the court specifically finds that the parent, guardian or custodian is unable to pay.
(8) The Mississippi Department of Human Services, Division of Youth Services, shall operate and maintain services for youth adjudicated delinquent at Columbia and Oakley Training Schools. The program shall be designed for children committed to the training schools by the youth courts. The purpose of the program is to promote good citizenship, self-reliance, leadership and respect for constituted authority, teamwork, cognitive abilities and appreciation of our national heritage. The Division of Youth Services shall issue credit towards academic promotions and high school completion. The Division of Youth Services may award credits to each student who meets the requirements for a general education development certification. The Division of Youth Services must also provide to each special education eligible youth the services required by that youth's individualized education plan.
SECTION 2. Section 47-5-1001, Mississippi Code of 1972, is reenacted as follows:
47-5-1001. For purposes of Sections 47-5-1001 through 47-5-1015, the following words shall have the meaning ascribed herein unless the context shall otherwise require:
(a) "Approved electronic monitoring device" means a device approved by the department which is primarily intended to record and transmit information regarding the offender's presence or nonpresence in the home.
(b) "Correctional field officer" means the supervising probation and parole officer in charge of supervising the offender.
(c) "Court" means a circuit court having jurisdiction to place an offender to the intensive supervision program.
(d) "Department" means the Department of Corrections.
(e) "House arrest" means the confinement of a person convicted or charged with a crime to his place of residence under the terms and conditions established by the department or court.
(f) "Operating capacity" means the total number of state offenders which can be safely and reasonably housed in facilities operated by the department and in local or county jails or other facilities authorized to house state offenders as certified by the department, subject to applicable federal and state laws and rules and regulations.
(g) "Participant" means an offender placed into an intensive supervision program.
SECTION 3. Section 47-5-1003, Mississippi Code of 1972, is reenacted and amended as follows:
47-5-1003. (1) An intensive supervision program may be used as an alternative to incarceration for offenders who are low risk and nonviolent as selected by the department or court and for juvenile offenders as provided in Section 43-21-605(k). Any offender convicted of a sex crime or a felony violation of Section 41-29-139(a)(1) shall not be placed in the program.
(2) The court placing an offender in the intensive supervision program may, acting upon the advice and consent of the commissioner and not later than one (1) year after the defendant has been delivered to the custody of the department, suspend the further execution of the sentence and place the defendant on intensive supervision, except when a death sentence or life imprisonment is the maximum penalty which may be imposed or if the defendant has been confined for the conviction of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof or has been convicted of a felony involving the use of a deadly weapon.
(3) To protect and to ensure the safety of the state's citizens, any offender who violates an order or condition of the intensive supervision program may be arrested by the correctional field officer and placed in the actual custody of the Department of Corrections. Such offender is under the full and complete jurisdiction of the department and subject to removal from the program by the classification hearing officer.
(4) When any circuit or county court places an offender in an intensive supervision program, the court shall give notice to the Mississippi Department of Corrections within fifteen (15) days of the court's decision to place the offender in an intensive supervision program. Notice shall be delivered to the central office of the Mississippi Department of Corrections and to the regional office of the department which will be providing supervision to the offender in an intensive supervision program.
The courts may not require an offender to complete the intensive supervision program as a condition of probation or post-release supervision.
SECTION 4. Section 47-5-1005, Mississippi Code of 1972, is reenacted as follows:
47-5-1005. (1) The department shall promulgate rules that prescribe reasonable guidelines under which an intensive supervision program shall operate. These rules shall include, but not be limited to, the following:
(a) The participant shall remain within the interior premises or within the property boundaries of his or her residence at all times during the hours designated by the correctional field officer.
(b) Approved absences from the home may include, but are not limited to, the following:
(i) Working or employment approved by the court or department and traveling to or from approved employment;
(ii) Unemployed and seeking employment approved for the participant by the court or department;
(iii) Undergoing medical, psychiatric, mental health treatment, counseling or other treatment programs approved for the participant by the court or department;
(iv) Attending an educational institution or a program approved for the participant by the court or department;
(v) Participating in community work release or community service program approved for the participant by the court or department; or
(vi) For another compelling reason consistent with the public interest, as approved by the court or department.
(2) The department shall select and approve all electronic monitoring devices used under Sections 47-5-1001 through 47-5-1015.
(3) The department may lease the equipment necessary to implement the intensive supervision program and to contract for the monitoring of such devices. The department is authorized to select the lowest price and best source in contracting for these services.
SECTION 5. Section 47-5-1007, Mississippi Code of 1972, is reenacted and amended as follows:
47-5-1007. (1) Any participant in the intensive supervision program who engages in employment shall pay a monthly fee to the department for each month such person is enrolled in the program. The department may waive the monthly fee if the offender is a full-time student or is engaged in vocational training. Juvenile offenders shall pay a monthly fee of not less than Ten Dollars ($10.00) but not more than Fifty Dollars ($50.00) based on a sliding scale using the standard of need for each family that is used to calculate TANF benefits. Money received by the department from participants in the program shall be deposited into a special fund which is hereby created in the State Treasury. It shall be used, upon appropriation by the Legislature, for the purpose of helping to defray the costs involved in administering and supervising such program. Unexpended amounts remaining in such special fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned on amounts in such special fund shall be deposited to the credit of the special fund.
(2) The participant shall admit any correctional officer into his residence at any time for purposes of verifying the participant's compliance with the conditions of his detention.
(3) The participant shall make the necessary arrangements to allow for correctional officers to visit the participant's place of education or employment at any time, based upon the approval of the educational institution or employer, for the purpose of verifying the participant's compliance with the conditions of his detention.
(4) The participant shall acknowledge and participate with the approved electronic monitoring device as designated by the department at any time for the purpose of verifying the participant's compliance with the conditions of his detention.
(5) The participant shall be responsible for and shall maintain the following:
(a) A working telephone line in the participant's home;
(b) A monitoring device in the participant's home, or on the participant's person or both; and
(c) A monitoring device in the participant's home and on the participant's person in the absence of a telephone.
(6) The participant shall obtain approval from the correctional field officer before the participant changes residence.
(7) The participant shall not commit another crime during the period of home detention ordered by the court or department.
(8) Notice shall be given to the participant that violation of the order of home detention shall subject the participant to prosecution for the crime of escape as a felony.
(9) The participant shall abide by other conditions as set by the department.
SECTION 6. Section 47-5-1009, Mississippi Code of 1972, is reenacted as follows:
47-5-1009. (1) The department shall have absolute immunity from liability for any injury resulting from a determination by a judge or correctional officer that an offender shall be allowed to participate in the electronic home detention program.
(2) The Department of Audit shall annually audit the records of the department to ensure compliance with Sections 47-5-1001 through 47-5-1015.
SECTION 7. Section 47-5-1011, Mississippi Code of 1972, is reenacted as follows:
47-5-1011. (1) Before entering an order for commitment for electronic house arrest, the department shall inform the participant and other persons residing in the home of the nature and extent of the approved electronic monitoring devices by doing the following:
(a) Securing the written consent of the participant in the program to comply with the rules and regulations of the program.
(b) Advising adult persons residing in the home of the participant at the time an order or commitment for electronic house arrest is entered and asking such persons to acknowledge the nature and extent of approved electronic monitoring devices.
(c) Insuring that the approved electronic devices are minimally intrusive upon the privacy of other persons residing in the home while remaining in compliance with Sections 47-5-1001 through 47-5-1015.
(2) The participant shall be responsible for the cost of equipment and any damage to such equipment. Any intentional damage, any attempt to defeat monitoring, any committing of a criminal offense or any associating with felons or known criminals, shall constitute a violation of the program.
(3) Any person whose residence is utilized in the program shall agree to keep the home drug and alcohol free and to exclude known felons and criminals in order to provide a noncriminal environment.
SECTION 8. Section 47-5-1013, Mississippi Code of 1972, is reenacted and amended as follows:
47-5-1013. Participants enrolled in an intensive supervision program shall be required to:
(a) Maintain employment if physically able, or full-time student status at an approved school or vocational trade, and make progress deemed satisfactory to the correctional field officer, or both, or be involved in supervised job searches.
(b) Pay restitution and program fees as directed by the department. Program fees shall not be less than Seventy-five Dollars ($75.00) per month. The sentencing judge may charge a program fee of less than Seventy-five Dollars ($75.00) per month in cases of extreme financial hardship, when such judge determines that the offender's participation in the program would provide a benefit to his community. Juvenile offenders shall not pay a program fee, but shall pay a monthly fee as provided in Section 47-5-1007. Program fees shall be deposited in the special fund created in Section 47-5-1007.
(c) Establish a place of residence at a place approved by the correctional field officer, and not change his residence without the officer's approval. The correctional officer shall be allowed to inspect the place of residence for alcoholic beverages, controlled substances and drug paraphernalia.
(d) Remain at his place of residence at all times except to go to work, to attend school, to perform community service and as specifically allowed in each instance by the correctional field officer.
(e) Allow administration of drug and alcohol tests as requested by the field officer.
(f) Perform not less than ten (10) hours of community service each month.
(g) Meet any other conditions imposed by the court to meet the needs of the offender and limit the risks to the community.
SECTION 9. Section 47-5-1015, Mississippi Code of 1972, is reenacted and amended as follows:
47-5-1015. Sections 47-5-1001 through 47-5-1015 shall stand repealed after June 30, 2008.
SECTION 10. This act shall take effect and be in force from and after July 1, 2006.