§ 42-56-20.2 - Community confinement.
SECTION 42-56-20.2
§ 42-56-20.2 Community confinement. –(a) Persons subject to this section. Every person who shall have beenadjudged guilty of any crime after trial before a judge, a judge and jury, orbefore a single judge entertaining the person's plea of nolo contendere orguilty to an offense ("adjudged person") and every person sentenced toimprisonment in the adult correctional institutions ("sentenced person")including those sentenced or imprisoned for civil contempt, and every personawaiting trial at the adult correctional institutions ("detained person") whomeets the criteria set forth in this section shall be subject to the terms ofthis section except:
(1) Any person who is unable to demonstrate that a permanentplace of residence ("eligible residence") within this state is available tothat person; or
(2) Any person who is unable to demonstrate that he or shewill be regularly employed, or enrolled in an educational or vocationaltraining program within thirty (30) days following the institution of communityconfinement; or
(3) Any adjudged person or sentenced person or detainedperson who has been convicted, within the five (5) years next preceding thedate of the offense for which he or she is currently so adjudged or sentencedor detained, of a violent felony.
A "violent felony" as used in this section shall mean any oneof the following crimes or an attempt to commit that crime: murder,manslaughter, sexual assault, mayhem, robbery, burglary, assault with adangerous weapon, assault or battery involving serious bodily injury, arson,breaking and entering into a dwelling, child molestation, kidnapping, DWIresulting in death or serious injury, driving to endanger resulting in death orserious injury.
(ii) Any person currently adjudged guilty of or sentenced foror detained on any capital felony; or
(iii) Any person currently adjudged guilty of or sentencedfor or detained on a felony offense involving the use of force or violenceagainst a person or persons.
These shall include, but are not limited to, those offenseslisted in subsection (a)(3)(i); or
(iv) Any person currently adjudged guilty, sentenced, ordetained for the sale, delivery, or possession with intent to deliver acontrolled substance in violation of § 21-28-4.01(a)(4)(i) or possessionof a certain enumerated quantity of a controlled substance in violation of§§ 21-28-4.01.1 or 21-28-4.01.2.
(v) Any person currently adjudged guilty of or sentenced foror detained on an offense involving the illegal possession of a firearm.
(b) Findings prior to sentencing to communityconfinement. In the case of adjudged persons, if the judge intends toimpose a sentence of community confinement, he or she shall first make specificfindings, based on evidence regarding the nature and circumstances of theoffense and the personal history, character, record, and propensities of thedefendant which are relevant to the sentencing determination, and thesefindings shall be placed on the record at the time of sentencing. Thesefindings shall include, but are not limited to:
(1) A finding that the person does not demonstrate a patternof behavior indicating a propensity for violent behavior;
(2) A finding that the person meets each of the eligibilitycriteria set forth in subsection (a);
(3) A finding that simple probation is not an appropriatesentence;
(4) A finding that the interest of justice requires, forspecific reasons, a sentence of non-institutional confinement; and
(5) A finding that the person will not pose a risk to publicsafety if placed in community confinement.
The facts supporting these findings shall be placed on therecord, and shall be subject to review on appeal.
(1) There shall be established within the department ofcorrections, a community confinement program to serve that number of adjudgedpersons, sentenced persons and detainees, that the director of the departmentof corrections ("director") shall determine on or before July 1 of each year.Immediately upon that determination, the director shall notify the presidingjustice of the superior court of the number of adjudged persons, sentencedpersons, and detainees that can be accommodated in the community confinementprogram for the succeeding twelve (12) months. One-half (1/2) of all personssentenced to community confinement shall be adjudged persons, and the balanceshall be detainees and sentenced persons. The director shall provide to thepresiding justice of the superior court and the family court on the first dayof each month a report to set forth the number of adjudged persons, sentencedpersons and detainees participating in the community confinement program as ofeach reporting date. Notwithstanding any other provision of this section, if onApril 1 of any fiscal year less than one-half ( 1/2) of all persons sentencedto community confinement shall be adjudged persons, then those availablepositions in the community confinement program may be filled by sentencedpersons or detainees in accordance with the procedures set forth in subdivision(c)(2) of this section.
(2) In the case of inmates other than those classified tocommunity confinement under subsection (h), the director may make writtenapplication ("application") to the sentencing judge for an order ("order")directing that a sentenced person or detainee be confined within an eligibleresidence for a period of time, which in the case of a sentenced person, shallnot exceed the term of imprisonment. This application and order shall contain arecommendation for a program of supervision and shall contain the findings setforth in subsections (b)(1), (b)(2), (b)(3), (b)(4), and (b)(5) and factssupporting these findings. The application and order may contain arecommendation for the use of electronic surveillance or monitoring devices.The hearing on this application shall be held within ten (10) business daysfollowing the filing of this application. If the sentencing judge isunavailable to hear and consider the application the presiding justice of thesuperior court shall designate another judge to do so.
(3) In lieu of any sentence, which may be otherwise imposedupon any person subject to this section, the sentencing judge may cause anadjudged person to be confined within an eligible residence for a period oftime not to exceed the term of imprisonment otherwise authorized by the statutethe adjudged person has been adjudged guilty of violating.
(4) With authorization by the sentencing judge, or, in thecase of sentenced persons classified to community confinement under subsection(h) by the director of corrections, or in accordance with the order, personsconfined under the provisions of this chapter may be permitted to exit theeligible residence in order to travel directly to and from their place ofemployment or education or training and may be confined in other terms orconditions consistent with the basic needs of that person that justice maydemand, including the right to exit the eligible residence to which that personis confined for certain enumerated purposes such as religious observation,medical and dental treatment, participation in an education or vocationaltraining program, and counseling, all as set forth in the order.
(d) Administration. (1) Community confinement. Thesupervision of persons confined under the provisions of this chapter shall beconducted by the director, or his or her designee.
(2) Intense surveillance. The application and ordershall prescribe a program of intense surveillance and supervision by thedepartment of corrections. Persons confined under the provisions of thissection shall be subject to searches of their persons or of their property whendeemed necessary by the director, or his or her designee, in order to ensurethe safety of the community, supervisory personnel, the safety and welfare ofthat person and/or to ensure compliance with the terms of that person's programof community confinement; provided, however, that no surveillance, monitoringor search shall be done at manifestly unreasonable times or places nor in amanner or by means that would be manifestly unreasonable under thecircumstances then present.
(3) The use of any electronic surveillance or monitoringdevice which is affixed to the body of the person subject to supervision isexpressly prohibited unless set forth in the application and order or, in thecase of sentenced persons classified to community confinement under subsection(h), otherwise authorized by the director of corrections.
(4) Regulatory authority. The director shall have fullpower and authority to enforce any of the provisions of this section byregulation, subject to the provisions of the Administrative Procedures Act,chapter 35 of title 42. Notwithstanding any provision to the contrary, thedepartment of corrections may contract with private agencies to carry out theprovisions of this section. The civil liability of those agencies and theiremployees, acting within the scope of their employment, and carrying out theprovision of this section, shall be limited in the same manner and dollaramount as if they were agencies or employees of the state.
(e) Violations. Any person confined pursuant to theprovisions of this section, who is found to be a violator of any of the termsand conditions imposed upon him or her according to the order, or in the caseof sentenced persons classified to community confinement under subsection (h),otherwise authorized by the director of corrections, this section, or anyrules, regulations, or restrictions issued pursuant hereto shall be ineligiblefor parole, and shall serve the balance of his or her sentence in aclassification deemed appropriate by the director. If that conduct constitutesa violation of § 11-25-2, the person, upon conviction, shall be subject toan additional term of imprisonment of not less than one year and not more thantwenty (20) years. However, it shall be a defense to any alleged violation thatthe person was at the time of the violation acting out of a necessary responseto an emergency situation. An "emergency situation" shall be construed to meanthe avoidance by the defendant of death or of substantial personal injury, asdefined above, to him or herself or to others.
(f) Costs. Each person confined according to thissection shall reimburse the state for the costs or a reasonable portion thereofincurred by the state relating to the community confinement of those persons.Costs shall be initially imposed by the sentencing judge or in the order andshall be assessed by the director prior to the expiration of that person'ssentence. Once assessed, those costs shall become a lawful debt due and owingto the state by that person. Monies received under this section shall bedeposited as general funds.
(g) Severability. Every word, phrase, clause, section,subsection, and any of the provisions of this section are hereby declared to beseverable from the whole, and a declaration of unenforceability orunconstitutionality of any portion of this section, by a judicial court ofcompetent jurisdiction, shall not affect the portions remaining.
(h) Sentenced persons approaching release.Notwithstanding the provisions set forth within this section, any sentencedperson committed under the direct care, custody, and control of the adultcorrectional institutions, who is within six (6) months of the projected goodtime release date, provided that the person shall have completed at leastone-half ( 1/2) of the full term of incarceration, or any person who issentenced to a term of six (6) months or less of incarceration, provided thatthe person shall have completed at least three-fourths ( 3/4) of the term ofincarceration, may in the discretion of the director of corrections beclassified to community confinement. This provision shall not apply to anyperson whose current sentence was imposed upon conviction of murder, firstdegree sexual assault or first degree child molestation.
(i) Notification to police departments. The director,or his or her designee, shall notify the appropriate police department when asentenced, adjudged or detained person has been placed into communityconfinement within that department's jurisdiction. That notice will include thenature of the offense and the express terms and conditions of that person'sconfinement. That notice shall also be given to the appropriate policedepartment when a person in community confinement within that department'sjurisdiction is placed in escape status.
(j) No incarceration credit for persons awaitingtrial. No detainee shall be given incarceration credit by the director fortime spent in community confinement while awaiting trial.
(k) No confinement in college or university housingfacilities. Notwithstanding any provision of the general laws to thecontrary, no person eligible for community confinement shall be placed in anycollege or university housing facility, including, but not limited to,dormitories, fraternities or sororities. College or university housingfacilities shall not be considered an "eligible residence" for "communityconfinement."
(l) A sentencing judge shall have authority to waiveovernight stay or incarceration at the adult correctional institution after thesentencing of community confinement. Such a waiver shall be binding upon theadult correctional institution and the staff thereof, including, but notlimited to the community confinement program.