MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Corrections; Appropriations
By: Representative Malone
AN ACT TO AMEND SECTION 47-5-103, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DESIGNEE OR DESIGNEES OF THE COMMISSIONER OF CORRECTIONS SHALL APPROVE OR DISAPPROVE EACH CLASSIFICATION MADE BY THE CLASSIFICATION HEARING OFFICER; TO AMEND SECTION 47-5-193, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT IT IS UNLAWFUL FOR ANY PERSON TO FURNISH AN OFFENDER UNAUTHORIZED ELECTRONIC DEVICES THAT SEND OR RECEIVE MESSAGES; TO PROVIDE THAT IT IS UNLAWFUL FOR ANY PERSON TO TAKE UNAUTHORIZED ELECTRONIC DEVICES THAT SEND OR RECEIVE MESSAGES ONTO PROPERTY BELONGING TO THE DEPARTMENT OF CORRECTIONS; TO AMEND SECTION 97-3-104, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROHIBITION REGARDING CARNAL KNOWLEDGE OF AN OFFENDER BY CORRECTIONAL OFFICERS; TO AUTHORIZE THE GOVERNOR TO EXECUTE THE INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION; TO PRESCRIBE ITS PURPOSE; TO DEFINE CERTAIN TERMS; TO ESTABLISH THE COMPACT COMMISSION AND PRESCRIBE ITS POWERS AND DUTIES; TO CREATE A STATE COUNCIL FOR INTERSTATE ADULT OFFENDER SUPERVISION AND PRESCRIBE ITS POWERS AND DUTIES; TO PROVIDE FOR THE ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION; TO AUTHORIZE THE DEPARTMENT OF CORRECTIONS TO CHARGE A FEE FOR OFFENDERS WHO APPLY FOR TRANSFER UNDER THE INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION; TO BRING FORWARD SECTION 47-7-71, MISSISSIPPI CODE OF 1972, WHICH AUTHORIZES THE EXECUTION OF THE UNIFORM ACT FOR OUT-OF-STATE PAROLEE SUPERVISION; TO BRING FORWARD SECTION 47-7-73, MISSISSIPPI CODE OF 1972, WHICH REQUIRES THE DEPARTMENT OF CORRECTIONS TO NOTIFY COUNTY AND MUNICIPAL LAW ENFORCEMENT AGENCIES IN A COUNTY WHEN A PERSON IS PLACED ON PROBATION OR RELEASED ON PAROLE AND RESIDES IN THE COUNTY UNDER THE UNIFORM ACT FOR OUT-OF-STATE PAROLEE SUPERVISION; TO BRING FORWARD SECTION 47-7-47, MISSISSIPPI CODE OF 1972, WHICH AUTHORIZES CIRCUIT AND COUNTY COURTS TO PLACE OFFENDERS IN THE EARNED PROBATION PROGRAM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 47-5-103, Mississippi Code of 1972, is amended as follows:
47-5-103. (1) The classification hearing officer shall be responsible for assigning a classification to each offender within forty (40) days after the offender's commitment to the custody of the department. The classification shall determine the offender's work duties, living quarters, educational, vocational or other rehabilitation programs, and privileges to be accorded the offender while in custody of the department. The classification hearing officer, in assigning classifications, shall consider the offender's age, offense and surrounding circumstances, the complete record of the offender's criminal history including records of law enforcement agencies or of a youth court regarding that offender's juvenile criminal history, family background, education, practical or employment experience, interests and abilities as evidenced by mental and psychological examination and knowledge obtained by the classification hearing officer in personal interview with the offender. The classification hearing officer shall use the above criteria to assign each offender a classification which will serve and enhance the best interests and general welfare of the offender. The designee or designees of the commissioner shall approve or disapprove each classification. The classification hearing officer shall provide the State Parole Board with a copy of the classification assigned to each offender in the custody of the department who is eligible for parole.
(2) The classification board, consisting of the commissioner, or his designee, deputy commissioner of institutions and the director of offender services may change an action of the classification or disciplinary hearing officer if the board makes a determination that the action of the hearing officer was not supported by sufficient factual information. The commissioner, in emergency situations, may suspend the classification of an offender or offenders for a period of not exceeding fifteen (15) days to relieve the emergency situation. The classification of each offender may be reviewed by a classification hearing officer at least once each year. In no case shall an offender serve as a servant in the home of any employee other than authorized by the commissioner.
(3) The classification board shall establish substantive and procedural rules and regulations governing the assignment and alteration of inmate classifications, and shall make such rules and regulations available to any offender upon request.
SECTION 2. Section 47-5-193, Mississippi Code of 1972, is amended as follows:
47-5-193. It is unlawful for any officer or employee of the department, of any county sheriff's department, of any private correctional facility in this state in which offenders are confined or for any other person to furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any weapon, deadly weapon, unauthorized electronic device that sends or receives messages or contraband item. It is unlawful for any person to take, attempt to take, or assist in taking any weapon, deadly weapon, unauthorized electronic device that sends or receives messages or contraband item on property belonging to the department which is occupied or used by offenders, except as authorized by law.
SECTION 3. Section 97-3-104, Mississippi Code of 1972, is amended as follows:
97-3-104. It shall be unlawful for any jailer, guard, employee of the Department of Corrections, sheriff, constable, marshal or other officer to have carnal knowledge of any offender, with or without the offender's consent, who is incarcerated at any jail or any state, county or private correctional facility. Any person who violates this section shall be guilty of a felony and upon conviction shall be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned for a term not to exceed five (5) years, or both.
SECTION 4. The Governor, on behalf of this state, may execute a compact, in substantially the following form, and the Legislature signifies in advance its approval and ratification of such compact:
THE INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION
ARTICLE I
PURPOSE
The compacting states to this interstate compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized, pursuant to the bylaws and rules of this compact, to travel across state lines both to and from each compacting state in such a manner as to: track the location of offenders; transfer supervision authority in an orderly and efficient manner; and when necessary, return offenders to the originating jurisdictions.
The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 USCS Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.
It is the purpose of this compact and the interstate commission created under this compact, through means of joint and cooperative action among the compacting states: to provide the framework for the promotion of public safety and to protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits and obligations of the compact among the compacting states.
In addition, this compact will: create an interstate commission that will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies that will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct noncompliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.
The compacting states recognize that there is no "right" of any offender to live in another state and that duly accredited officers of a sending state may enter a receiving state and apprehend and retake any offender under supervision subject to the provisions of this compact and bylaws and rules promulgated under the compact.
It is the policy of the compacting states that the activities conducted by the interstate commission created in this compact are the formation of public policies and are therefore public business.
ARTICLE II
DEFINITIONS
As used in this compact, the following words and terms have the following meanings, unless a different meaning clearly appears from the context:
(a) "Adult" means individuals legally classified as adults and juveniles treated as adults by court order, statute or operation of law.
(b) "Bylaws" mean those bylaws established by the interstate commission for its governance or for directing or controlling the interstate commission's actions or conduct.
(c) "Compact administrator" means the individual in each compacting state appointed under this compact who is responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact.
(d) "Compacting state" means any state that has enacted the enabling legislation for this compact.
(e) "Commissioner" means the voting representative of each compacting state appointed under Article III of this compact.
(f) "Interstate commission" means the Interstate Commission for Adult Offender Supervision established by this compact.
(g) "Member" means the commissioner of a compacting state or the commissioner's designee, who shall be a person officially connected with the commissioner.
(h) "Noncompacting state" means any state that has not enacted the enabling legislation for this compact.
(i) "Offender" means an adult placed under, or subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies.
(j) "Person" means any individual, corporation, business enterprise or other legal entity, either public or private.
(k) "Rules" mean acts of the interstate commission, duly promulgated pursuant to Article VII of this compact, substantially affecting interested parties in addition to the interstate commission, which shall have the force and effect of law in the compacting states.
(l) "State" means a state of the United States, the District of Columbia and any other territorial possessions of the United States.
(m) "State council" means the resident members of the respective state council for interstate adult offender supervision created by each state under Article III of this compact.
ARTICLE III
THE COMPACT COMMISSION
(A) The compacting states create the "Interstate Commission for Adult Offender Supervision." The interstate commission shall be a body corporate and joint agency of the compacting states. The interstate commission shall have all the responsibilities, powers and duties set forth in this compact, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
(B) The interstate commission shall consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision or the Governor for each state. While each member state may determine the membership of its own state council, its membership must include at least one (1) representative from the legislative, judicial and executive branches of government, victims groups and compact administrators. The Mississippi state council will be appointed by the compact administrator. The compact administrator also may appoint additional representatives to the state council when he deems such appointments necessary. The commissioner of corrections or his designee shall serve as the compact administrator and as the state's commissioner on the interstate commission in such capacity pursuant to applicable law of the member state. Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the Governor.
The commissioner of corrections shall serve as compact administrator and chairperson of the state council for interstate adult offender supervision. If the commissioner of corrections appoints a designee, the designee must be a deputy commissioner of corrections or the division director in the office of community corrections that has operational authority over the interstate compact division.
The term of office for state council members shall be four (4) years. The state council shall meet at least twice a year. The state council may advise the compact administrator on participation in the interstate commission activities and administration of the compact. Members of the council are entitled to reimbursement for travel and expenses related to the interstate commission as provided by state law.
In addition to appointment of its commissioner to the National Interstate Commission, each state council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by each member state, including, but not limited to, development of policy concerning operations and procedures of the compact within that state.
(C) In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners, but who are members of interested organizations; the noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general and crime victims. All noncommissioner members of the interstate commission shall be ex officio (nonvoting) members. The interstate commission may provide in its bylaws for such additional, ex officio (nonvoting) members as it deems necessary.
(D) Each compacting state represented at any meeting of the interstate commission is entitled to one (1) vote. A majority of the compacting states constitutes a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission.
(E) The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven (27) or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
(F) The interstate commission shall establish an executive committee that shall include commission officers, members and others as determined by the bylaws. The executive committee has the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rule-making or amendment to the compact, or both. The executive committee: oversees the day-to-day activities managed by the executive director and interstate commission staff; administers enforcement and compliance with the provisions of the compact, its bylaws and as directed by the interstate commission; and performs other duties as directed by the commission or set forth in the bylaws.
ARTICLE IV
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The interstate commission shall have the following powers:
(1) To adopt a seal and suitable bylaws governing the management and operation of the interstate commission.
(2) To promulgate rules that have the force and effect of statutory law and are binding in the compacting states to the extent and in the manner provided in this compact.
(3) To oversee, supervise and coordinate the interstate movement of offenders subject to the terms of this compact and any bylaws adopted and rules promulgated by the compact commission.
(4) To enforce compliance with compact provisions, interstate commission rules and bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process.
(5) To establish and maintain offices.
(6) To purchase and maintain insurance and bonds.
(7) To borrow, accept or contract for services of personnel, including, but not limited to, members and their staffs.
(8) To establish and appoint committees and hire staff that it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III, which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder.
(9) To elect or appoint such officers, attorneys, employees, agents or consultants and to fix their compensation, define their duties and determine their qualifications; and to establish the interstate commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation and qualifications of personnel.
(10) To accept any and all donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of same.
(11) To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal or mixed.
(12) To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed.
(13) To establish a budget and make expenditures and levy dues as provided in Article IX of this compact.
(14) To sue and be sued.
(15) To provide for dispute resolution among compacting states.
(16) To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
(17) To report annually to the legislatures, governors, judiciary and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. These reports shall include any recommendations that may have been adopted by the interstate commission.
(18) To coordinate education, training and public awareness regarding the interstate movement of offenders for officials involved in that activity.
(19) To establish uniform standards for the reporting, collecting and exchanging of data.
ARTICLE V
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
Section A. Bylaws
The interstate commission, by a majority of the members within twelve (12) months of the first interstate commission meeting, shall adopt such bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
(a) Establishing the fiscal year of the interstate commission;
(b) Establishing an executive committee and such other committees as may be necessary;
(c) Providing reasonable standards and procedures: (i) for the establishment of committees; and (ii) governing any general or specific delegation of any authority or function of the interstate commission;
(d) Providing reasonable procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each commission meeting;
(e) Establishing the titles and responsibilities of the officers of the interstate commission;
(f) Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the interstate commission. Notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall govern exclusively the personnel policies and programs of the interstate commission;
(g) Providing a mechanism for concluding the operations of the interstate commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment or reserving, or both, of all of its debts and obligations;
(h) Providing transition rules for the "start up" administration of the compact; and
(i) Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
Section B. Officers and Staff
(1) The interstate commission shall elect from among its members, by a majority of the members, a chairperson and a vice chairperson, each of whom shall have such authorities and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice chairperson, shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission; however, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission.
(2) The interstate commission, through its executive committee, shall appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, and hire and supervise such other staff as may be authorized by the interstate commission, but the executive director shall not be a member of the interstate commission.
Section C. Corporate Records of the Interstate Commission
The interstate commission shall maintain its corporate books and records in accordance with the bylaws.
Section D. Qualified Immunity, Defense and Indemnification
(1) The members, officers, executive director and employees of the interstate commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities; however, nothing in this paragraph may be construed to protect any such person from suit or liability, or both, for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person.
(2) The interstate commission shall defend the commissioner of a compacting state, or the commissioner's representatives or employees, or the interstate commission's representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or which the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from intentional wrongdoing on the part of such person.
(3) The interstate commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the interstate commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or which such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person.
ARTICLE VI
ACTIVITIES OF THE INTERSTATE COMMISSION
(1) The interstate commission shall meet and take such actions as are consistent with this compact.
(2) Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the interstate commission, the act must be taken at a meeting of the interstate commission and must receive an affirmative vote of a majority of the members present.
(3) Each member of the interstate commission has the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person on behalf of the state and may not delegate a vote to another member state. However, the compact administrator shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person.
(4) The interstate commission shall meet at least once during each calendar year. The chairperson of the interstate commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
(5) The interstate commission's bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent that they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the interstate commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
(6) Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission shall promulgate rules consistent with the principles contained in the "Government in Sunshine Act," 5 USCS Section 552(b), as may be amended. The interstate commission and any of its committees may close a meeting to the public where it determines, by two-thirds (2/3) vote, that an open meeting would be likely to: (a) relate solely to the interstate commission's internal personnel practices and procedures; (b) disclose matters specifically exempted from disclosure by statute; (c) disclose trade secrets or commercial or financial information which is privileged or confidential; (d) involve accusing any person of a crime or formally censuring any person; (e) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (f) disclose investigatory records compiled for law enforcement purposes; (g) disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the interstate commission with respect to a regulated entity for the purpose of regulation or supervision of such entity; (h) disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; (i) specifically relate to the interstate commission's issuance of a subpoena, or its participation in a civil action or proceeding.
(7) For every meeting closed pursuant to this provision, the interstate commission's chief legal officer shall certify publicly that, in the legal officer's opinion, the meeting may be closed to the public and shall reference each relevant exemptive provision. The interstate commission shall keep minutes that shall describe fully and clearly, all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken and the reasons therefor, including, a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
(8) The interstate commission shall collect standardized data concerning the interstate movement of offenders as directed through its bylaws and rules, which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.
ARTICLE VII
RULE-MAKING FUNCTIONS OF THE INTERSTATE COMMISSION
(1) The interstate commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact, including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states.
(2) Rule-making shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rule-making shall substantially conform to the principles of the federal Administrative Procedure Act, 5 USCS Section 551 et seq., and the Federal Advisory Committee Act, 5 USCS App. 2, Section 1 et seq., as may be amended (hereinafter "APA").
(3) All rules and amendments shall become binding as of the date specified in each rule or amendment.
(4) If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then that rule shall have no further force and effect in any compacting state.
(5) When promulgating a rule, the interstate commission shall: (a) publish the proposed rule stating with particularity the text of the rule that is proposed and the reason for the proposed rule; (b) allow persons to submit written data, facts, opinions and arguments, which information shall be publicly available; (c) provide an opportunity for an informal hearing; and (d) promulgate a final rule and its effective date, if appropriate, based on the rule-making record.
(6) Not later than sixty (60) days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of the rule. If the court finds that the interstate commission's action is not supported by substantial evidence (as defined in the APA) in the rule-making record, the court shall hold the rule unlawful and set it aside.
(7) Subjects to be addressed within twelve (12) months after the first meeting must include, at a minimum: (a) notice to victims and opportunity to be heard; (b) offender registration and compliance; (c) violations and returns; (d) transfer procedures and forms; (e) eligibility for transfer; (f) collection of restitution and fees from offenders; (g) data collection and reporting; (h) the level of supervision to be provided by the receiving state; (i) transition rules governing the operation of the compact and the interstate commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; and (j) mediation, arbitration and dispute resolution.
The existing rules governing the operation of the previous compact superceded by this act shall be null and void twelve (12) months after the first meeting of the interstate commission created under this compact.
(8) Upon determination by the interstate commission that an emergency exists, the interstate commission may promulgate an emergency rule that shall become effective immediately upon adoption; however, the usual rule-making procedures provided under this compact shall be applied retroactively to that rule as soon as reasonably possible, and in no event, later than ninety (90) days after the effective date of the rule.
ARTICLE VIII
OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY THE
INTERSTATE COMMISSION
Section A. Oversight
(1) The interstate commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which significantly may affect compacting states.
(2) The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate commission, the interstate commission shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes.
Section B. Dispute Resolution
(1) The compacting states shall report to the interstate commission on issues or activities of concern to them and shall cooperate with and support the interstate commission in the discharge of its duties and responsibilities.
(2) The interstate commission shall attempt to resolve any disputes or other issues that are subject to the compact and which may arise among compacting states and noncompacting states.
(3) The interstate commission shall enact a bylaw or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
Section C. Enforcement
The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in Article XI, Section B, of this compact.
Section D. Retaking Cases From Another Jurisdiction
The duly accredited officers of a sending state may enter a receiving state and apprehend and retake any person on probation or parole according to the laws of the United States. For that purpose, the sending state must establish the authority of the officer and the identity of the person or persons to be retaken. The person or persons must be afforded a preliminary hearing consistent with due process requirements under the United States Constitution as interpreted by the Supreme Court of the United States. All legal requirements to extradition of fugitives from justice are waived expressly on the part of states that are parties to this compact as to such persons. The decision of the sending state to retake a person on probation or parole is conclusive and not reviewable within the receiving state; however, if, at the time a state seeks to retake a probationer or parolee, there is pending against him within the receiving state a criminal charge or if he is suspected of having committed within that state a criminal offense, the probationer or parolee may not be retaken without the consent of the receiving state until the probationer or parolee is discharged from prosecution or from imprisonment for such offense. The duly accredited officers of the sending state may transport prisoners being retaken through any state that is a party to this compact without interference.
ARTICLE IX
FINANCE
(1) The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.
(2) The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff, which levy must be in a total amount sufficient to cover the interstate commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state. The interstate commission shall promulgate a rule binding upon all compacting states which governs the assessment.
(3) The interstate commission shall not incur any obligations of any kind before securing the funds adequate to meet the obligations. The interstate commission may not pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
(4) The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the interstate commission.
ARTICLE X
COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
(1) Any state, as defined in Article II of this compact, is eligible to become a compacting state.
(2) The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five (35) of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter, it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of nonmember states or their designees will be invited to participate in interstate commission activities on a nonvoting basis before adoption of the compact by all states and territories of the United States.
(3) Amendments to the compact may be proposed by the interstate commission for enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless it is enacted into law by unanimous consent of the compacting states.
ARTICLE XI
WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL ENFORCEMENT
Section A. Withdrawal
(1) Once effective, the compact shall continue in force and remain binding upon every compacting state; however, a compacting state may withdraw from the compact ("withdrawing state") by enacting a statute specifically repealing the statute that enacted the compact into law.
(2) The effective date of withdrawal is the effective date of the repeal.
(3) The withdrawing state shall notify immediately the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state.
(4) The interstate commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt of the notification.
(5) The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
(6) Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.
Section B. Default
(1) If the interstate commission determines that any compacting state has at any time defaulted ("defaulting state") in the performance of any of its obligations or responsibilities under this compact, the bylaws or any duly promulgated rules, the interstate commission may impose any or all of the following penalties:
(a) Fines, fees and costs in such amounts as are deemed to be reasonable, as fixed by the interstate commission;
(b) Remedial training and technical assistance as directed by the interstate commission;
(c) Suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted. Immediate notice of suspension shall be given by the interstate commission: to the Governor, the Chief Justice or chief judicial officer of the state; the majority and minority leaders of the defaulting state's Legislature; and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, interstate commission bylaws or duly promulgated rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission on the defaulting state pending a cure of the default. The interstate commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, in addition to any other penalties imposed, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of suspension.
(2) Within sixty (60) days of the effective date of termination of a defaulting state, the interstate commission shall notify the governor, the chief justice or chief judicial officer and the majority and minority leaders of the defaulting state's legislature and the state council of such termination.
(3) The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.
(4) The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the interstate commission and the defaulting state.
(5) Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules.
Section C. Judicial Enforcement
The interstate commission by majority vote of the members, may initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices to enforce compliance with the compact, its duly promulgated rules and bylaws against any compacting state in default. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of the litigation, including reasonable attorney's fees.
Section D. Dissolution of Compact
(1) The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one (1) compacting state.
(2) Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.
ARTICLE XII
SEVERABILITY AND CONSTRUCTION
(1) The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
(2) The provisions of this compact shall be liberally construed to effectuate its purposes.
ARTICLE XIII
BINDING EFFECT OF COMPACT AND OTHER LAWS
Section A. Other Laws
(1) Nothing in this compact prevents the enforcement of any other law of a compacting state which is not inconsistent with this compact.
(2) All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.
Section B. Binding Effect of the Compact
(1) All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states.
(2) All agreements between the interstate commission and the compacting states are binding in accordance with their terms.
(3) Upon the request of a party to a conflict over the meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation.
(4) If any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective, and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency of that state to which the obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.
SECTION 5. Pursuant to the Interstate Compact for Adult Offender Supervision, the Department of Corrections may assume the duties of supervision over offenders of any sending state who were convicted of misdemeanors. The Department of Corrections may not supervise offenders convicted of misdemeanors of states that are not participating in the compact.
SECTION 6. Pursuant to the Interstate Compact for Adult Offender Supervision, the Department of Corrections may charge a one-time application fee in the amount of Thirty-five Dollars ($35.00) to each offender applying for out-of-state transfer under the Interstate Compact for Adult Offender Adult Supervision. Payments received under this section shall be deposited into a special fund which is created in the State Treasury. Monies in the fund shall be expended by the Department of Corrections, upon appropriation by the Legislature, to defray costs incurred by the department under the Interstate Compact for Adult Offender Supervision. Unexpended amounts remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned or investment earnings on amounts in the special fund shall be deposited to the credit of the special fund.
SECTION 7. Section 47-7-71, Mississippi Code of 1972, is brought forward as follows:
47-7-71. I. The Governor of this state is hereby authorized and directed to execute a compact on behalf of the State of Mississippi with any of the United States legally joining therein in the form substantially as follows:
A Compact
Entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an act entitled "An act granting the consent of Congress to any two (2) or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes."
The contracting states solemnly agree:
(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called "sending state"), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called "receiving state"), while on probation or parole, if
(a) Such person is in fact a resident of or has his family residing within the receiving state and can obtain employment there;
(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.
Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.
A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commission of the offense for which he has been convicted.
(2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.
(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state; provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.
(4) That the duly accredited officers of the sending state will be permitted to transport prisoners being retaken through any and all states parties to this compact, without interference.
(5) That the governor of each state may designate an officer who, acting jointly with like officers of other contracting states, if and when appointed, shall promulgate such rules and regulations as may be deemed necessary to more effectively carry out the terms of this compact.
(6) That this compact shall become operative immediately upon its execution by any state as between it and any other state or states so executing. When executed it shall have the full force and effect of law within such state, the form of execution to be in accordance with the laws of the executing state.
(7) That this compact shall continue in force and remain binding upon each executing state until renounced by it. The duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until retaken or finally discharged by the sending state. Renunciation of this compact shall be by the same authority which executed it, by sending six (6) months' notice in writing of its intention to withdraw from the compact to the other state party hereto.
II. This section may be cited as the uniform act for out-of-state parolee supervision.
SECTION 8. Section 47-7-73, Mississippi Code of 1972, is brought forward as follows:
47-7-73. The Department of Corrections shall notify the sheriff of the county and the police chief of each municipality in the county when a person is placed on probation or released on parole to reside in the county under the Uniform Act for Out-of-state Parolee Supervision.
SECTION 9. Section 47-7-47, Mississippi Code of 1972, is brought forward as follows:
47-7-47. (1) The judge of any circuit court may place an offender on a program of earned probation after a period of confinement as set out herein and the judge may seek the advice of the commissioner and shall direct that the defendant be under the supervision of the department.
(2) (a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered to the custody of the department, to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation, except when a death sentence or life imprisonment is the maximum penalty which may be imposed or if the defendant has been confined two (2) or more times 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.
(b) The authority granted in this subsection shall be exercised by the judge who imposed sentence on the defendant, or his successor.
(c) The time limit imposed by paragraph (a) of this subsection is not applicable to those defendants sentenced to the custody of the department prior to April 14, 1977. Persons who are convicted of crimes that carry mandatory sentences shall not be eligible for earned probation.
(3) When any circuit or county court places an offender on earned probation, the court shall give notice to the Mississippi Department of Corrections within fifteen (15) days of the court's decision to place the offender on earned probation. 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 on earned probation.
(4) If the court places any person on probation or earned probation, the court may order the person, as a condition of probation, to a period of confinement and treatment at a private or public agency or institution, either within or without the state, which treats emotional, mental or drug-related problems. Any person who, as a condition of probation, is confined for treatment at an out-of-state facility shall be supervised pursuant to Section 47-7-71, and any person confined at a private agency shall not be confined at public expense. Time served in any such agency or institution may be counted as time required to meet the criteria of subsection (2)(a).
(5) If the court places any person on probation or earned probation, the court may order the person to make appropriate restitution to any victim of his crime or to society through the performance of reasonable work for the benefit of the community.
(6) If the court places any person on probation or earned probation, the court may order the person, as a condition of probation, to submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States.
SECTION 10. This act shall take effect and be in force from and after July 1, 2004.