SB0029

SENATE BILL 29

55th legislature - STATE OF NEW MEXICO - second session, 2022

INTRODUCED BY

Bill B. O'Neill

ENDORSED BY THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO PAROLE; CREATING MEDICAL AND GERIATRIC PAROLE PROCEDURES; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 31-21-5 NMSA 1978 (being Laws 1978, Chapter 41, Section 1, as amended) is amended to read:

"31-21-5. DEFINITIONS.--As used in the Probation and Parole Act:

A. "probation" means the procedure under which an adult defendant, found guilty of a crime upon verdict or plea, is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions;

B. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

C. "institution" means the state penitentiary and any other similar state institution hereinafter created;

D. "board" means the parole board;

E. "director" means the director of the [field services] adult probation and parole division of the corrections department or any employee designated by [him] the director; [and]

F. "adult" means any person convicted of a crime by a district court;

G. "geriatric inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) is fifty-five years of age or older;

(3) suffers from a debilitating and chronic infirmity, illness or disease related to aging; and

(4) does not constitute a danger to the person's own self or to society at the time of review;

H. "permanently incapacitated inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) by reason of an existing medical condition is permanently and irreversibly physically incapacitated; and

(3) does not constitute a danger to the person's own self or to society at the time of review; and

I. "terminally ill inmate" means a person who:

(1) is serving a sentence and is confined in a prison or other correctional institution under the control of the corrections department;

(2) has an incurable condition caused by illness or disease that will, within reasonable medical judgment, produce death within six months; and

(3) does not constitute a danger to the person's own self or to society at the time of review."

SECTION 2. Section 31-21-17.1 NMSA 1978 (being Laws 1994, Chapter 21, Section 2) is amended to read:

"31-21-17.1. [ADMINISTRATION BY] MEDICAL OR GERIATRIC PAROLE--PROCEDURES--DUTIES OF THE CORRECTIONS DEPARTMENT--DUTIES OF THE BOARD.--

A. The corrections department shall promulgate rules and implement a medical and geriatric parole program, including the application form for medical or geriatric parole.

B. Inmates who are geriatric, permanently incapacitated or terminally ill may seek parole consideration upon written application to the board or consent to submission of their application by and through a family member, attorney or corrections department care provider. When an inmate is physically or mentally incapable of knowingly and voluntarily consenting to submission of an application due to mental or physical infirmity, a family member, attorney, corrections department care provider or other individual with a power of attorney may submit the application on an inmate's behalf.

C. Applications for medical or geriatric parole shall be submitted to the inmate's classification officer. A classification officer who receives an application shall review the application, make a recommendation, attach any relevant documentation and forward the application package to the appropriate authority as defined by corrections department rule.

D. A classification officer shall provide an inmate over the age of fifty-five with a copy of the medical and geriatric parole policy and any other applicable forms at least once a year. An inmate arriving at a long-term care or geriatric unit managed by the corrections department or placed by the corrections department into long-term care or a facility not managed by the department shall be provided with a copy of the medical and geriatric parole policy, written in the inmate's preferred language, during orientation. A copy of the medical and geriatric parole policy shall be placed and maintained in the law library at each institution of the corrections department.

E. The corrections department shall identify geriatric, permanently incapacitated and terminally ill inmates, notify those inmates of the opportunity to apply for medical or geriatric parole and recommend the release of those inmates who are eligible for [geriatric or] medical or geriatric parole. [based on rules established by the board. The department shall forward an application and documentation in support of parole eligibility to the board within thirty days of receipt of an application from an inmate. The documentation shall include information concerning the inmate's age, medical history and prognosis, institutional behavior and adjustment and criminal history. The inmate or inmate's representative may submit an application to the board]

F. The corrections department shall determine whether to recommend an inmate for medical or geriatric parole and make any recommendations to the board no later than thirty days after receipt of the application by the classification officer. All applications received by the department shall be processed and forwarded to the board. The recommendation shall include the inmate's age, medical history and prognosis and, if applicable, institutional behavior, adjustment and any evidence suggesting rehabilitation during incarceration. When the department recommends an inmate for medical or geriatric parole, the director shall submit a statement to the board that the inmate's release is not incompatible with the welfare of society. In the event that the department is unable to make a determination of recommendation for medical or geriatric parole within thirty days, the department shall document in writing any justification for the delay.

G. A rebuttable presumption that an inmate does not constitute a danger to the inmate's self or to society and is therefore eligible for medical or geriatric parole is established if the inmate:

(1) is fifty-five years of age or older and suffers from a debilitating or chronic infirmity, illness or disease related to aging;

(2) by reason of an existing medical condition, is permanently and irreversibly physically incapacitated; or

(3) has an incurable condition caused by illness or disease that would, within reasonable medical judgment, produce death within six months.

H. An inmate who has not served the inmate's minimum sentence may be considered eligible for parole under the medical and geriatric parole program. Medical and geriatric parole shall be in addition to any other parole for which a geriatric, permanently incapacitated or terminally ill inmate may be eligible.

I. An inmate convicted of first degree murder shall not be considered eligible for medical or geriatric parole.

J. When considering an inmate for medical or geriatric parole, the director may request that reasonable medical and mental health examinations be conducted; provided that the examinations do not cause delay in the processing time of applications required by this section.

K. When determining an inmate's eligibility for medical or geriatric parole, the director shall consider the totality of the circumstances, including:

(1) the inmate's age;

(2) the severity of the inmate's illness, disease or infirmity;

(3) a comprehensive health evaluation of the inmate;

(4) the inmate's institutional behavior, including evidence indicating rehabilitation;

(5) the inmate's current level of risk for violence; and

(6) any alternative to maintaining the geriatric, permanently incapacitated or terminally ill inmate in a traditional setting.

L. The parole term of a geriatric, permanently incapacitated or terminally ill inmate on medical or geriatric parole shall be for the remainder of the inmate's basic sentence and parole without diminution of sentence for good behavior.

M. The board shall release an inmate on medical or geriatric parole upon recommendation from the director unless the board finds by clear and convincing evidence that the inmate's release is incompatible with the welfare of society and states in writing its reason for the finding. The board may consider the totality of the circumstances, including an inmate's criminal history, but shall not deny medical or geriatric parole solely because of the nature of the charge resulting in the inmate's conviction or the inmate's criminal history.

N. Upon receipt of an application and recommendation and supporting documentation from the corrections department for medical or geriatric parole, the board shall review the documentation, schedule a hearing and issue a decision within fifteen days. In the event that a hearing cannot be scheduled and a decision issued within fifteen days, the board shall document in writing any justification for the delay. If an inmate is denied parole, the board shall notify the inmate and provide service of the copy of the written decision. A copy of the decision shall be sent to the secretary of corrections and the warden of the facility in which the inmate resides.

O. In the event that the inmate is a terminally ill inmate, the corrections department shall determine whether to recommend an inmate for medical or geriatric parole within fifteen days of the receipt of the inmate's application by the classification officer, and the board shall issue a decision within seven days. In the event that the department is unable to determine whether to recommend an inmate for medical or geriatric parole within fifteen days pursuant to this subsection, the department or the board shall document any justification for the delay in writing.

P. An inmate who has been denied parole pursuant to the provisions of this section may reapply if additional information is received or if the inmate's condition so warrants.

Q. Pursuant to Section 39-3-1.1 NMSA 1978, an inmate whose decision is denied by the board pursuant to the provisions of this section may appeal the board's decision in the district court in the jurisdiction where the sentence was imposed. When an inmate is physically or mentally incapable of knowingly and voluntarily consenting to submission of an appeal because of a mental or physical infirmity, a family member, attorney, corrections department health care provider or other individual with a power of attorney may submit an appeal on the inmate's behalf. The notice of appeal shall include a statement of any applicable appellate issues. No later than forty-eight hours after the filing of the notice of appeal with the board, the board shall file the record on appeal with the district court, including any applicable appellee response. The district court shall rule on the appeal no later than seventy-two hours after the record on appeal is filed."

SECTION 3. REPEAL.--Section 31-21-25.1 NMSA 1978 (being Laws 1994, Chapter 21, Section 3) is repealed.

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