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Montana Administrative Register Notice 20-25-71 No. 3   02/11/2022    
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BEFORE THE BOARD OF PARDONS AND PAROLE

OF THE STATE OF MONTANA

 

In the matter of the adoption of NEW RULES I and II; the amendment of ARM 20.25.101, 20.25.102, 20.25.103, 20.25.201, 20.25.306, 20.25.307, 20.25.401, 20.25.402, 20.25.501, 20.25.504, 20.25.601, 20.25.702, 20.25.801, 20.25.901, 20.25.902, 20.25.903, 20.25.904; and the repeal of ARM 20.25.202 and 20.25.505 pertaining to Board of Pardons and Parole paroling decision, early parole consideration, administrative reviews and reappearances, board operating processes, and executive clemency functions

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

 

 

TO: All Concerned Persons

 

            1. On March 3, 2022, at 11:00 a.m., the Board of Pardons and Parole (board) will hold a public hearing via remote conferencing to consider the proposed adoption, amendment, and repeal of the above-stated rules. There will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways:

 

a. Join Zoom meeting, https://mt-gov.zoom.us/j/85608440204?pwd=b1RRL0dBNWM2VldmRmpIckRYY1VYZz09, Meeting ID: 856 0844 0204, Password: 815162; or

 

b. Dial by telephone, +1 406 444 9999 or +1 646 558 8656.

 

The hearing will begin with a brief introduction by board or Department of Corrections staff to explain the use of the videoconference and telephonic platform. All participants will be muted except when it is the participant's time to speak.

 

2. The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Corrections no later than 5:00 p.m. on February 24, 2022, to advise us of the nature of the accommodation that you need. Please contact Griffin Burns, Department of Corrections, P. O. Box 201301, 5 South Last Chance Gulch, Helena, Montana, 59620-1301; telephone (406) 444-1551; or e-mail griffin.burns@mt.gov.

 

3. The rules proposed to be adopted provide as follows:

 

NEW RULE I  EARLY CONSIDERATION (1) Whenever an offender's next scheduled administrative review is more than one year away, the offender may submit to the board a request for early consideration stating new information or change in circumstances that bears on their suitability for parole. An offender may not submit more than one request for early consideration annually.

(2)  The passage of time alone is not considered new information.

(3) The board will screen the request to confirm that one of the following criteria for early consideration is met:

(a) a change in the offender's status since the last parole consideration tending to demonstrate the offender's ability and willingness to fulfill the obligations of a law-abiding member of the public;

(b) the offender has completed treatment or an educational program;

(c)  the offender has fulfilled other conditions ordered by the hearing panel or has been unable to fulfill them due to factors outside the offender's control;

(d) the hearing panel's previous disposition was based on erroneous information or misinformation;

(e) the offender has developed a suitable release plan or there has been a substantial change in the offender's previous release plan to warrant reconsideration;

(f) the victim or community no longer objects to the offender's release; or

(g) correctional staff has made a recommendation for earlier administrative review or reappearance.

(4) If the offender meets one of the criteria in (3) the board will exercise its discretion to determine whether to grant early consideration.

(5) If the request is denied, the notice to the offender will state the reasons for the denial. If the request is granted, the notice will state the date on which the administrative review will be conducted.

 

AUTH: 46-23-201, 46-23-218, MCA

IMP: 46-23-201, 46-23-218, 46-24-212, MCA

 

REASON: The proposed new rule is extracted from ARM 20.25.402 and placed in a separate rule for organizational and clarification purposes. The rule contained several related but distinct topics that made the rule unclear.  Separating the topic of early consideration from the topics of administrative reviews and reappearances was warranted for that reason. The substantive changes from the language contained in ARM 20.25.402 include that NEW RULE I limits the number of requests an offender can submit for early consideration to one per year. In addition, the criterion for early consideration in ARM 20.25.402(6)(c)(ii) is purposely omitted from this break-out rule. Other changes to language extracted from ARM 20.25.402 and inserted into NEW RULE I are of a housekeeping nature or for clarification purposes.

 

            NEW RULE II BOARD RESPONSES TO PAROLE VIOLATIONS (1) Upon receipt of a report of violation from the department pursuant to 46-23-1024 and 46-23-1025, MCA, the board will:

(a)  review the report and any supporting documentation;

(b) promptly schedule a revocation hearing;

(c) determine whether any violation is established; and

(d) for any established violation, determine the type of violation, either compliance or non-compliance.

(2) For established compliance violation(s), the board will determine whether the Montana incentives and interventions grid (MIIG) was exhausted and, if not, refer the matter back to the department.

(3) For established compliance and non-compliance violations, the board will issue a disposition in accordance with the appropriate subsection(s) of 46-23-1025, MCA or other appropriate order.

 

AUTH: 46-23-201, 46-23-218, MCA

IMP: 46-23-1028, MCA

 

REASON: The rule is reasonably necessary to implement the statutory requirement pertaining to exhaustion of the Montana Incentives and Interventions Grid (MIIG) which, in general, is a prerequisite to revocation.

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

20.25.101  ORGANIZATION OF THE BOARD  (1)  The board is a quasi-judicial body and for the purpose of 2-15-124, MCA, except that board members are full-time employees and are compensated in accordance with 46-23-104 and 46-23-111, MCA. Terms of board members are staggered in accordance with 2-15-2405, MCA, and the provisions of 2-15-124(1), MCA do not apply to the board. The board is allocated administratively attached to the Department of Corrections for administrative purposes only under 2-15-121 and 2-15-2305, MCAThe board consists of seven members who are appointed by the governor. The board shall make recommendations on executive clemency and administer parole processes and procedures, and ensure the effective application of and improvements to the clemency and release system as well as of the laws upon which they are based.

(2) The board chair is specifically designated by the governor in accordance with 2-15-124, MCA.  The governor may designate a different presiding officer at any time and the former presiding officer will continue to serve as a board member unless removed for cause pursuant to 2-15-124(6), MCA and the vice-chair is designated by a majority vote of the board. The vice-chair chair may designate another board member to assume assumes the duties of the chair when the chair is not present. Individual board members shall, prior to hearing a case, disclose any conflict of interest and recuse themselves in cases in which it has been determined that a conflict of interest is clearly identified.

(3) The board's main office is located in Deer Lodge, Montana. Individual board members shall, prior to hearing a case, disclose any conflict of interest and recuse themselves in cases in which it has been determined that a conflict of interest is clearly identified.

(4) The board, by majority vote of all members, hires an executive director, who oversees the day to day financial, administrative, and personnel policies and procedures of the board. The executive director also coordinates board member, hearing panel, and board staff work schedules, and fulfills other duties as assigned by the board chair. The executive director hires board staff as deemed necessary and as provided by legislative appropriation. Board administrative personnel represent the board in official board actions. All board personnel are state employees with all the benefits and protections afforded state employees.

(5)(4)  The board will meet at least monthly to conduct hearings weekly and transact its business daily. The board may conduct meetings and hearings at any location suitable for that purpose.

(6) through (8) remain the same but are renumbered (5) through (7).

            (9)(8) The board executive director chair, in consultation with the board, will maintain, review, and update at least annually a written description and an organizational chart that accurately reflects the structure of authority, responsibility, and accountability within the board.

 

AUTH: 46-23-218, MCA

IMP: 2-15-121, 2-15-124, 2-15-2302, 2-15-2405, 46-23-104, 46-23-111, MCA

 

REASON: Changes to this rule were necessitated by legislative amendments regarding the board itself and the elimination of the executive director position. Information relating to conflict of interest was extracted from a section unrelated to that topic and inserted into a separate section for clarity. An ambiguous and imprecise statement to the effect that administrative personnel represent the board in official board actions was stricken from the rule. One of the current criteria for granting or denying early consideration relates to "clear conduct" of the offender. That criteria has been deleted from the rule because it is a potentially artificial barrier to an otherwise appropriate early consideration.  Elimination of the clear conduct criteria only means that institution conduct will not necessarily disqualify the offender from being granted early consideration but it may still be considered by the board.

 

            20.25.102  BOARD TRAINING  (1)  All board members shall receive training in accordance with 46-23-218, MCA, that addresses the following disproportionate representation of American Indians issues: in the legal custody of the department.

            (a)  the cultures and problems of Montana tribes and reservations;

            (b) statistical and comparative data regarding correctional populations;

            (c) distinctions between urban and reservation populations; and

            (d) federal, state, and local community services available to paroled or discharged American Indian offenders.

            (2) A board member who has not received training regarding American Indian issues may not hear or decide American Indian cases until the member has completed the training.

            (3) remains the same but is renumbered (2).

            (4)(3)  Before participating on a hearing panel, a new board member must receive orientation from board staff or board member regarding:

            (a) remains the same.

            (b) offender pathology, treatment, and supervision including American Indian issues as related to each; and

            (c) remains the same.

            (5)(4)  The executive director in consultation with the board chair The board will develop, evaluate, and update training curricula annually based on the board's needs.

 

AUTH: 46-23-218, MCA

IMP: 46-23-218, MCA

 

REASON: The proposed amendments eliminate language that, in violation of 2-4-305, MCA, unnecessarily repeats what is contained in statute.

 

            20.25.103  DISSEMINATION OF INFORMATION  (1)  As a public agency, all board records including any audio/video recordings are public. All board records are subject to disclosure except in cases in which the individual right of privacy clearly exceeds the merits of public disclosure, and in cases in which statute makes the record confidential. The department and board shall keep a record of the board's acts and decisions in accordance with 46-23-110 and 46-23-1025, MCA. A recording may not personally identify the victim without the victim's consent.

            (2) An individual will have a right of privacy if the person has a reasonable expectation of privacy in the material and society is willing to recognize that expectation as reasonable. Members of the public may request a copy of the public records of the board as provided in 2-6-1003, 2-6-1006, 2-6-1007, and 46-23-110, MCA. The board may assert an individual's privacy interest on their behalf relating to content that implicates personal privacy or safety interests that clearly exceed the merits of public disclosure. That information will not be released.

            (3) The board may limit the time and place that records may be inspected or copied in accordance with 46-23-110, MCA. The courts have ruled that the rights society recognizes as reasonable include but are not limited to:

            (a) information that, if released, would create a risk of physical harm to a person;

            (b) information that, if released, would create a safety or security risk to a correctional facility;

            (c)  personal medical information; and

            (d) personal personnel information.

            (4) When someone requests board records, the board's executive director or designee will conduct an analysis of the requested material and determine whether, in the executive director's opinion, any information contains an individual privacy interest that clearly exceeds the merits of public disclosure.

            (5) The executive director or the board may assert a claim of individual privacy on behalf of an individual if the board executive director believes requested information contains a reasonable privacy interest that exceeds the merits of public disclosure. The board executive director will attempt to notify the individual to advise the individual of the request for information and ascertain if the individual agrees with or objects to the release of the information. If notification is not possible, the board executive director will independently weigh the privacy interest against the public's right to know to determine if the board should release the information.

            (6) and (7) remain the same but are renumbered (4) and (5).

            (8)(6) The executive director or the board may not disseminate to the public any information directly or indirectly identifying the victim of the following sex crimes:

            (a) 45-5-502, MCA (Sexual Assault),;

            (b) 45-5-503, MCA (Sexual Intercourse Without Consent),;

            (c) 45-5-504, MCA (Indecent Exposure), or;

            (d) 45-5-507, MCA (Incest), MCA.;

            (e) 45-5-702, MCA (Trafficking);

            (f) 45-5-703, MCA (Involuntary Servitude);

            (g) 45-5-704, MCA (Sexual Servitude); or

            (h) 45-5-705, MCA (Patronizing Victim of Sexual Servitude).

            (9) The executive director or the board will disseminate research findings to all appropriate parties. The executive director or designee must approve all dissemination of research data. All research dissemination must consider the potential effect of the security and operation of correctional facilities, the public, and the operational integrity of the board. Privacy interests of offenders and other parties for cases under study will be ensured when research projects are considered.

            (10)(7)  When releasing board records the executive director or the board chair will consult with board legal counsel when as necessary.

            (11) remains the same but is renumbered (8).

            (12) The board may charge 10 cents per page for each page the board produces.

 

AUTH: 46-23-218, MCA

IMP: 2-6-102, 2-6-1003, 2-6-1006, 2-6-1007, 44-5-311, 46-18-243, 46-23-110, 46-23-218, 46-23-1025, MCA

 

REASON: The amendments are primarily of a housekeeping or administrative nature. Additional criminal offenses established by law have been added to (8) which is renumbered (6). Section (12) is being deleted because in violation of 2-4-305, MCA, it unnecessarily repeats what is contained in statute.

 

            20.25.201  OBJECTIVES   (1) and (2) remain the same.

            (3) If the department, after it utilizes its screening process, transfers an offender from prison to prerelease or a community-based treatment program before the offender is eligible for parole, when the offender becomes eligible for parole, a hearing panel, after review of the entire offender file or summary, will conduct an impartial hearing. The board's primary responsibility in making decisions about parole and executive clemency is public safety. The board applies Montana law in affording offenders with impartial hearings, respecting offender rights, and considering the safety of victims and the public.

            (4) remains the same.

 

AUTH: 46-23-218, MCA

IMP:  46-23-201, MCA

 

REASON: Section (3) is being amended to eliminate language regarding transfers of offenders from prison to prerelease centers or to community treatment programs for pre-parole programming or controlled inmate worker assignments. The department initiates those processes under its own distinct legal authority. The board participates in screening and may endorse the transfers, but it is not the source of the legal authority for them. For that reason, the stricken language need not and should not be part of the board's rule.

 

            20.25.306  PAROLE PLAN  (1)  The board through its pre-parole program, will make available to offenders a copy of a packet outlining the parole process and the recommended treatment parole release plan. The board, through its staff, may review and amend an offender's recommended parole release plan as necessary and advise the offender when it changes its recommendations.

            (2) and (3) remain the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-215, 46-23-216, MCA

 

REASON: The proposed amendments are for clarification and administrative processing purposes.

 

            20.25.307  MEDICAL PAROLE  (1)  Except for an offender under sentence of death or of life imprisonment without the possibility of parole, a hearing panel may release an offender on medical parole in accordance with 46-23-210, MCA.:

            (a) a Montana offender confined in a prison or the state hospital;

            (b) a Montana offender confined in prerelease or other community corrections program; or

            (c) an offender for whom the court has restricted parole for a number of years under 46-18-202(2), MCA, but who has obtained the approval of the sentencing court. If the sentencing court does not respond within 30 days to a written request for medical parole consideration from the department, the offender is considered to be approved by the court for medical parole.

            (2) An offender or other party specified in 46-23-210, MCA, may submit an application for the offender's medical parole. The board, the department, the offender, or the offender's spouse, parent, child, grandparent, or sibling may submit an application for medical parole. The application must include the information required in 46-23-210, MCA. contain the following:

            (a) details of the offender's proposed living arrangement on medical parole;

            (b) details of how the offender will acquire and pay for medical care while the offender is on medical parole;

            (c) a report of an examination and written diagnosis by a licensed physician that includes:

            (i) a detailed description of the offender's medical condition and the medical attention required to treat that condition;

            (ii) an assessment of the offender's likelihood of recovery;

            (iii) a description of the offender's most recent past medical condition and treatment; and

            (iv) an assessment of whether, to a reasonable degree of medical certainty, there is a high probability the offender's medical condition will cause death within six months or less.

            (3) through (6) remain the same.

            (7) The hearing panel shall require as a condition of medical parole that the offender agree to placement in a setting chosen by the department during the parole period, including but not limited to a hospital, nursing home, or family home. The hearing panel may require as a condition of parole that the offender agree to periodic examinations and diagnosis at the offender's expense. Reports of each examination and diagnosis must be submitted to the board and department by the examining physician.  If either the board or department determines that the offender's physical capacity has improved to the extent that the offender is likely to pose a possible detriment to society, a hearing panel may revoke the medical parole and return the offender to the custody of the department.

            (8)(7) Prior to the medical parole hearing, the board, through its staff, shall gather for a hearing panel's deliberations, all pertinent information on the offender, including but not limited to the nature of the offense, social history, criminal history, institutional performance, and any medical and mental examinations which may have been made while in custody.  

            (9) through (13) remain the same but are renumbered (8) through (12).

 

AUTH: 46-23-218, MCA

IMP: 46-23-210, MCA

 

REASON: Amendments eliminate provisions that, in violation of 2-4-305, MCA, unnecessarily repeat what is in statute.

 

            20.25.401  HEARING PROCEDURE   (1) An eligible offender may apply and come before a hearing panel or an out-of-state releasing authority for nonmedical parole consideration within two months of time fixed by law as calculated by the prison records department. During the parole hearing the hearing panel will consider all pertinent information regarding each eligible offender, including the factors set forth in ARM 20.25.505(2).

(2)(1)  The presiding hearing panel member shall conduct hearings informally and shall have discretion to allow or not allow any proposed testimony witness statements on recognized legal groundsBoard staff The board shall make a video and audio record recording of all hearings in accordance with 46-23-110, MCA.

            (3)(2)  Interested persons who wish to appear before the hearing panel must: comply with board requirements as posted on its website including:

            (a) and (b) remain the same.

            (4) through (13) remain the same but are renumbered (3) through (12).

 

AUTH: 46-23-218, MCA

IMP: 46-23-202, 46-23-203, 46-23-204, MCA

 

REASON: The proposed amendments are of a housekeeping or operational nature, e.g., describing how the board conducts business. The amendments do not represent substantive changes to the current rule.

 

            20.25.402  ADMINISTRATIVE REVIEW, AND REAPPEARANCE, AND EARLY REVIEW  (1) After the initial parole hearing, if the hearing panel does not grant a parole it may set a date on which the offender may reappear for a subsequent parole hearing. If the hearing panel does not set a reappearance date, an administrative review of the offender's case will be conducted at intervals as outlined below: If the hearing panel does not grant parole at the initial parole hearing, the hearing panel shall set either a reappearance or an administrative review in accordance with 46-23-201(5), MCA. If an administrative review is set, it will be conducted in accordance with the following:

            (a) remains the same. 

            (b) For the administrative review, board prison staff will prepare and submit to the board, a report outlining the offender's developments, including the offender's progress and conduct since the last consideration and present the information to the board.

            (2) Unless the offender presents good cause for earlier administrative review pursuant to (6), the reviews will be conducted according to the following schedule or as otherwise ordered by the hearing panel, but in any case, not to exceed six years.

            (a) If the offender's prison discharge date is less than five years away, the offender's case will be reviewed no less than annually.

            (b) If the offender's prison discharge date is between five and ten years away, the offender's case will be reviewed no less than every three years.

            (3) If the offender's prison discharge date is ten or more years away, the offender will be scheduled for a hearing before the board no less than every six years.

            (4) and (5) remain the same but are renumbered (2) and (3).

            (6)  Whenever the scheduled administrative review is over one year away, the offender may submit to board staff a request for early administrative review if the offender can show new information or a change in circumstances that would affect suitability for parole.

            (a) The passage of time alone is not considered new information.

            (b) The offender may not submit more than one request every six months for earlier administrative review.

            (c) Staff will screen the request and determine if one of the following criteria is met:

            (i) a change in the offender's status since the last administrative review that would demonstrate that the offender is able and willing to fulfill the obligations of a law-abiding citizen; 

            (ii) the offender has maintained good conduct and if not, the nature and severity of the misconduct is negligible;

            (iii) the offender has completed treatment or educational programs;

            (iv)  the offender has fulfilled other conditions ordered by the hearing panel or has been unable to fulfill them due to factors outside the offender's control;

            (v) the hearing panel's previous disposition was based on erroneous information or misinformation;

            (vi) the offender has developed a suitable release plan or there has been a substantial change in the offender's previous release plan to warrant reconsideration;

            (vii) the victim or community no longer objects to the offender's release; or

            (viii) correctional staff has made a recommendation for earlier administrative review.

            (d) If the board staff determines the offender meets one of the above listed criteria, it will refer the request for early review to the board chair or designee to determine whether to schedule an early review. Board staff may not refer an offender for early administrative review if the offender has been involved in multiple or major misconduct since a hearing panel's last hearing or administrative review or a hearing panel has specifically prohibited early administrative review.

            (e) Board staff will notify the offender in writing if early review has been granted or denied.  If the request is denied the notice to the offender will state the reasons for the denial. If the request is granted, the notice will state the date on which the review will be conducted.

 

AUTH: 46-23-201, 46-23-218, MCA

IMP:  46-23-201, 46-23-218, 46-24-212, MCA

 

REASON: The proposed amendments are primarily for operational, housekeeping, or clarification purposes. Section (6) has been deleted altogether from ARM 20.25.402 and has been inserted into NEW RULE I with minor modifications for the reason stated therein.

 

            20.25.501 DECISION AND RECONSIDERATION  (1) A final decision of the hearing panel must be by a majority vote, must be in writing, and must be signed by at least two panel members. The board will not grant early consideration.

            (2) through (2)(c) remain the same.

            (d) continue the offender to a subsequent reconsideration hearing at an interval consistent with ARM 20.25.402 or [NEW RULE I]; (2) and (3), but in any case not to exceed six years. The hearing panel may order that the offender is not subject to administrative review except as provided in ARM 20.25.402(6).

            (e) remains the same. 

            (f) pass the offender to discharge in accordance with the schedule listed in 46-23-201, MCA, if the date of discharge is less than six years away or if the offender has requested to serve to discharge.

            (3) through (5) remain the same.

            (6) If a two-member hearing panel is unable to reach a unanimous decision, the board chair shall appoint a third member to consider all pertinent information and render a final decision.

            (7) remains the same but is renumbered (6).

            (8)(7)  A duly constituted hearing panel will make the following administrative decisions at the board's monthly business meeting after panel members have reviewed the offender's case record. These decisions do not require the approval of the members who made the most recent parole determination:

            (a) through (f) remain the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-104, 46-23-201, 46-24-212, MCA

 

REASON: The amendments are of a housekeeping nature and are made to maintain consistency with amendments being made to ARM 20.25.402.

 

            20.25.504 INVESTIGATION  (1)  Before a hearing panel considers an offender for release on parole, the board staff will make shall consider, at a minimum, the following information provided by the department pursuant to 46-23-203, MCA, and outlined in 46-23-208(4), MCA. available for the panel's consideration:

            (a) the offender's previous social history and criminal record;

            (b) the offender's education, conduct, and associations;

            (c) the offender's occupation or prospects for employment;

            (d) the offender's treatment record in prison;

            (e) facts and circumstances of the crime for which the offender was sentenced;

            (f) information received from the community where the crime was committed; and

            (g) any reports of physical or mental examinations which have been made of the offender.

            (2) remains the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-107, 46-23-203, 46-23-208, MCA

 

REASON: The rule is being amended to eliminate language that, in violation of 2-4-305, MCA, unnecessarily repeats what is in statute.  Additional implementation citations that had been previously overlooked are included.

 

            20.25.601  RECISSION HEARING (1) through (3) remain the same.

            (4) In lieu of scheduling a rescission hearing the board, through its staff, may delay the offender's release from confinement for up to 120 days for the reasons listed in (1).

            (5) remains the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-218, MCA

 

REASON: The representation in (4) that staff is allowed to delay an offender release from confinement is erroneous and is being deleted.

 

            20.25.702  CONDITIONS OF SUPERVISION  (1) remains the same.

            (2) A parolee shall pay a supervisory supervision fee in accordance with 46-23-1021, MCA of at least $10 a month for each month under supervision. A hearing panel may reduce or waive the fee or suspend the monthly payment if payment would cause the parolee significant financial hardship.

            (3) through (5) remain the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-215, 46-23-1021, MCA

 

REASON: The proposed amendment in (2) eliminates language that merely duplicates what is in statute contrary to 2-4-305, MCA. An additional implementation citation that was previously overlooked is being included now by amendment.

 

20.25.801 ON-SITE HEARING AND REVOCATION OF PAROLE 

(1) through (11) remain the same.

           (12)  Unless the parolee waives the revocation hearing, the board will schedule a revocation hearing within 90 days of receipt of the on-site hearing summary or of receipt of notice of conviction or return to Montana custody. If the parolee waives the revocation hearing the parolee must sign a waiver that clearly specifies the rights the parolee is relinquishing. Once the hearing is scheduled, the parolee may request a continuance and board staff may grant the continuance if the parolee can show has shown good and substantial cause for the continuance.

            (13) and (14) remain the same.

            (15)  The presiding hearing panel member will conduct the revocation hearing and will make an audio and or video record of the hearing. Violations warranting a revocation decision must have been established by a preponderance of the evidence. The decision of the board in a revocation hearing is by a preponderance of the evidence. The board may consider:

            (a) through (c) remain the same.

            (16)  If the board decides the parolee has violated parole, the hearing panel may, considering the nature of the violations and the criteria for release grant decision, take any of the following actions:

            (a) continue the parolee on parole with release to the community;

            (b)  continue the parolee on parole, but authorize the parolee's detention in custody until the parolee satisfies conditions imposed by the board;

            (c) revoke the parole and set no re-parole date;

            (d) revoke the parole, but order the offender's re-parole on a date certain;

            (e) revoke the parole and set a date within one year when a board hearing panel will conduct an administrative review of the offender's case; or

            (f) make any other appropriate order.

            (16) When conducting on-site hearings and other activities preparatory to a parole revocation hearing, probation and parole officers remain the employees of and under the supervision of the Montana Department of Corrections and not of the Board of Pardons and Parole.

 

AUTH: 46-23-218, MCA

IMP: 46-23-215; 46-23-1024; 46-23-1025, MCA

 

REASON: On-site hearings are a function of the Department of Corrections (department). On-site hearings conducted by department personnel are an integral part of the board's parole revocation process and are included with the board's administrative rules for that reason. A new (16) has been added to clarify that irrespective of their parole revocation-related activities, probation and parole officers remain the employees of and under the supervision of the department and not the Board of Pardons and Parole.

 

20.25.901  APPLICATIONS FOR CLEMENCY  (1) through (4)(a) remain the same.

            (i) Board staff will first assess whether an application is substantively similar to a previous application. The staff shall submit a report to the hearing panel with its assessment of whether the application is substantively similar to a previous application.

            (ii) through (b) remain the same.

            (c) Upon completion of its assessment, the board shall within ten working days forward to the Governor's office its recommendation to grant or deny clemency, together with all relevant documents. The board shall also forward to the Governor's office a proposed executive order if its recommendation is to grant clemency. If the board's recommendation is to deny clemency, it shall forward to the Governor's office and the applicant a board-recommended disposition summarizing the reasons for denial.

            (d) through (6) remain the same.

           

AUTH: 46-23-218, MCA

IMP: 46-23-301, MCA

 

REASON: The proposed amendments are housekeeping in nature and pertain to internal operating processes of the board.

 

20.25.902 INVESTIGATIONS FOR CLEMENCY AND ORDER FOR HEARING (1) In cases in which the death penalty has not been imposed, a hearing panel of the board staff will shall conduct a preliminary review of the application for clemency and submit a report to a hearing panel for its consideration.

(a) The hearing panel, based on its the staff's preliminary review, may accept or reject the application. The panel will base its decision to accept or reject an application on:

(i) through (b) remain the same.

(c) If a hearing panel decides to accept the application, it will request the department to conduct an investigation within 90 days of its request. The hearing panel may request a psychological evaluation of the applicant and any other reports the panel deems necessary as part of the investigation.

(i) Within 90 days of receiving the investigation report, board staff will compile all the information for a hearing panel's consideration and make a recommendation to the panel that the panel either reject the application or order a hearing on the application.

(ii) The panel may require other reports that, in the panel's opinion, are necessary.

(d) After receipt of the investigation report, the board staff's recommendation, and any other reports the panel has required, investigation, a hearing panel shall will consider the application and decide whether to hold a hearing on the application.

(e) through (2) remain the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-301, 46-23-302, MCA

 

REASON: The amendments are of a housekeeping nature to properly reflect the board's operational processes. The amendments do not represent substantive changes to the current rule.

 

20.25.903 HEARING PROCEDURE FOR CLEMENCY (1) through (3) remain the same.

(4) Applicants may be represented by counsel at their own expense. An indigent applicant may request counsel if difficult or complex issues are present and if the applicant is unable to articulate the issues. A decision on the request for appointed counsel will be rendered by the presiding hearing panel member after due consideration.

            (5) remains the same.

 

AUTH: 46-23-218, MCA

IMP: 46-23-301, 46-23-306, MCA

 

REASON: The board has neither the legislative authority nor the budget to appoint counsel for offenders appearing before it. Representations to the contrary in (4) are being eliminated from the rule. Section 46-23-301, MCA is being added as an implementation citation because it was previously overlooked and omitted in error.

 

20.25.904 RECOMMENDATION CONCERNING CLEMENCY (1) and (1)(a) remain the same.

(b) The hearing panel shall within ten working days forward to the Governor's office its recommendation to grant or deny clemency, together with all relevant documents for the Governor's final determination. If the hearing panel makes a recommendation that the Governor grant clemency, it shall also forward a proposed executive order to the Governor's office. If the panel does not recommend clemency, it will forward a board-recommended disposition summarizing the reasons for denial.

(c) and (2) remain the same.

 

AUTH: 46-23-218, MCA

IMP:  46-23-301, 46-23-307, MCA

 

REASON: The proposed amendment pertains to internal operating processes of the board and is ministerial in nature.

  

            5. The board proposes to repeal the following rules:

 

            20.25.202  DEFINITIONS

 

AUTH: 46-23-218, MCA

IMP: 46-23-103, 46-23-104, 46-23-218, MCA

 

REASON: ARM 20.25.202 is proposed to be repealed because, contrary to 2-4-305, MCA, it unnecessarily repeats statutory definitions and the remaining terms defined in the rule have ordinary, everyday meanings that require no definitions.

 

            20.25.505  CRITERIA FOR RELEASE GRANT DECISIONS ON NONMEDICAL PAROLE

 

AUTH: 46-23-218, MCA  

IMP:  46-23-201, 46-23-202, MCA

 

REASON: ARM 20.25.505 is proposed to be repealed because, contrary to 2-4-305, MCA, it unnecessarily repeats statutory language from 46-23-208, MCA.

 

            6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Griffin Burns, Department of Corrections,5 South Last Chance Gulch, Helena, Montana, 59601; telephone (406) 444-1551; or e-mail griffin.burns@mt.gov, and must be received no later than 5:00 p.m., March 11, 2022.

 

7.  Lorraine Schneider, Department of Corrections, has been designated to preside over and conduct this hearing.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.  

 

10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been satisfied. The bill sponsor was contacted on January 26, 2022, by email.

 

11. With regard to the requirements of 2-4-111, MCA, the board has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Colleen E. Ambrose                              /s/ Steve Hurd                    

Colleen E. Ambrose                                   Steve Hurd               

Chief Legal Counsel                                   Chair

Rule Reviewer                                            Board of Pardons and Parole

 

Certified to the Secretary of State February 1, 2022.

 

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