2007 -- H 5778
A N A C T
RELATING TO STATE AFFAIRS AND GOVERNMENT -- CORRECTIONS
Introduced By: Representative J. Patrick O`Neill
Date Introduced: February 28, 2007
It is enacted by the General Assembly as follows:
SECTION 1. Section 42-56-20.2 of the General Laws in Chapter 42-56 entitled
"Corrections Department" is hereby amended to read as follows:
42-56-20.2. Community confinement. -- (a) Persons subject to this section. - Every
person who shall have been adjudged guilty of any crime after trial before a judge, a judge and
jury, or before a single judge entertaining the person's plea of nolo contendere or guilty to an
offense ("adjudged person") and every person sentenced to imprisonment in the adult correctional
institutions ("sentenced person") including those sentenced or imprisoned for civil contempt, and
every person awaiting trial at the adult correctional institutions ("detained person") who meets the
criteria set forth in this section shall be subject to the terms of this section except:
(1) Any person who is unable to demonstrate that a permanent place of residence
("eligible residence") within this state is available to that person; or
(2) Any person who is unable to demonstrate that he or she will be regularly employed,
or enrolled in an educational or vocational training program within thirty (30) days following the
institution of community confinement; or
(3) (i) Any adjudged person or sentenced person or detained person who has been
convicted, within the five (5) years next preceding the date of the offense for which he or she is
currently so adjudged or sentenced or detained, of a violent felony.
A "violent felony" as used in this section shall mean any one of the following crimes or
an attempt to commit that crime: murder, manslaughter, sexual assault, mayhem, robbery,
burglary, assault with a dangerous weapon, assault or battery involving serious bodily injury,
arson, breaking and entering into a dwelling, child molestation, kidnapping, DWI resulting in
death or serious injury, driving to endanger resulting in death or serious injury.
(ii) Any person currently adjudged guilty of or sentenced for or detained on any capital
(iii) Any person currently adjudged guilty of or sentenced for or detained on a felony
offense involving the use of force or violence against a person or persons.
These shall include, but are not limited to, those offenses listed in subsection (a)(3)(i); or
(iv) Any person currently adjudged guilty, sentenced, or detained for the sale, delivery,
or possession with intent to deliver a controlled substance in violation of section 21-28-
4.01(a)(4)(i) or possession of a certain enumerated quantity of a controlled substance in violation
of sections 21-28-4.01.1 or 21-28-4.01.2.
(v) Any person currently adjudged guilty of or sentenced for or detained on an offense
involving the illegal possession of a firearm.
(b) Findings prior to sentencing to community confinement. - In the case of adjudged
persons, if the judge intends to impose a sentence of community confinement, he or she shall first
make specific findings, based on evidence regarding the nature and circumstances of the offense
and the personal history, character, record, and propensities of the defendant which are relevant to
the sentencing determination, and these findings shall be placed on the record at the time of
sentencing. These findings shall include, but are not limited to:
(1) A finding that the person does not demonstrate a pattern of behavior indicating a
propensity for violent behavior;
(2) A finding that the person meets each of the eligibility criteria set forth in subsection
(3) A finding that simple probation is not an appropriate sentence;
(4) A finding that the interest of justice requires, for specific reasons, a sentence of non-
institutional confinement; and
(5) A finding that the person will not pose a risk to public safety if placed in community
The facts supporting these findings shall be placed on the record, and shall be subject to
review on appeal.
(c) Community confinement.
(1) There shall be established within the department of corrections, a community
confinement program to serve that number of adjudged persons, sentenced persons and detainees,
that the director of the department of corrections ("director") shall determine on or before July 1
of each year. Immediately upon that determination, the director shall notify the presiding justice
of the superior court of the number of adjudged persons, sentenced persons, and detainees that
can be accommodated in the community confinement program for the succeeding twelve (12)
months. One-half (1/2) of all persons sentenced to community confinement shall be adjudged
persons, and the balance shall be detainees and sentenced persons. The director shall provide to
the presiding justice of the superior court and the family court on the first day of each month a
report to set forth the number of adjudged persons, sentenced persons and detainees participating
in the community confinement program as of each reporting date. Notwithstanding any other
provision of this section, if on April 1 of any fiscal year less than one-half ( 1/2) of all persons
sentenced to community confinement shall be adjudged persons, then those available positions in
the community confinement program may be filled by sentenced persons 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 to community confinement under
subsection (h), the director may make written application ("application") to the sentencing judge
for an order ("order") directing that a sentenced person or detainee be confined within an eligible
residence for a period of time, which in the case of a sentenced person, shall not exceed the term
of imprisonment. This application and order shall contain a recommendation for a program of
supervision and shall contain the findings set forth in subsections (b)(1), (b)(2), (b)(3), (b)(4), and
(b)(5) and facts supporting these findings. The application and order may contain a
recommendation for the use of electronic surveillance or monitoring devices. The hearing on this
application shall be held within ten (10) business days following the filing of this application. If
the sentencing judge is unavailable to hear and consider the application the presiding justice of
the superior court shall designate another judge to do so.
(3) In lieu of any sentence, which may be otherwise imposed upon any person subject to
this section, the sentencing judge may cause an adjudged person to be confined within an eligible
residence for a period of time not to exceed the term of imprisonment otherwise authorized by the
statute the adjudged person has been adjudged guilty of violating.
(4) With authorization by the sentencing judge, or, in the case of sentenced persons
classified to community confinement under subsection (h) by the director of corrections, or in
accordance with the order, persons confined under the provisions of this chapter may be
permitted to exit the eligible residence in order to travel directly to and from their place of
employment or education or training and may be confined in other terms or conditions consistent
with the basic needs of that person that justice may demand, including the right to exit the eligible
residence to which that person is confined for certain enumerated purposes such as religious
observation, medical and dental treatment, participation in an education or vocational training
program, and counseling, all as set forth in the order.
(d) Administration. - (1) Community confinement. The supervision of persons confined
under the provisions of this chapter shall be conducted by the director, or his or her designee.
(2) Intense surveillance. - The application and order shall prescribe a program of intense
surveillance and supervision by the department of corrections. Persons confined under the
provisions of this section shall be subject to searches of their persons or of their property when
deemed necessary by the director, or his or her designee, in order to ensure the safety of the
community, supervisory personnel, the safety and welfare of that person and/or to ensure
compliance with the terms of that person's program of community confinement; provided,
however, that no surveillance, monitoring or search shall be done at manifestly unreasonable
times or places nor in a manner or by means that would be manifestly unreasonable under the
circumstances then present.
(3) The use of any electronic surveillance or monitoring device which is affixed to the
body of the person subject to supervision is expressly prohibited unless set forth in the application
and order or, in the case of sentenced persons classified to community confinement under
subsection (h), otherwise authorized by the director of corrections.
(4) Regulatory authority. - The director shall have full power and authority to enforce
any of the provisions of this section by regulation, subject to the provisions of the Administrative
Procedures Act, chapter 35 of title 42. Notwithstanding any provision to the contrary, the
department of corrections may contract with private agencies to carry out the provisions of this
section. The civil liability of those agencies and their employees, acting within the scope of their
employment, and carrying out the provision of this section, shall be limited in the same manner
and dollar amount as if they were agencies or employees of the state.
(e) Violations. - Any person confined pursuant to the provisions of this section, who is
found to be a violator of any of the terms and conditions imposed upon him or her according to
the order, or in the case of sentenced persons classified to community confinement under
subsection (h), otherwise authorized by the director of corrections, this section, or any rules,
regulations, or restrictions issued pursuant hereto shall be ineligible for parole, and shall serve the
balance of his or her sentence in a classification deemed appropriate by the director. If that
conduct constitutes a violation of section 11-25-2, the person, upon conviction, shall be subject to
an additional term of imprisonment of not less than one year and not more than twenty (20) years.
However, it shall be a defense to any alleged violation that the person was at the time of the
violation acting out of a necessary response to an emergency situation. An "emergency situation"
shall be construed to mean the avoidance by the defendant of death or of substantial personal
injury, as defined above, to him or herself or to others.
(f) Costs. - Each person confined according to this section shall reimburse the state for
the costs or a reasonable portion thereof incurred by the state relating to the community
confinement of those persons. Costs shall be initially imposed by the sentencing judge or in the
order and shall be assessed by the director prior to the expiration of that person's sentence. Once
assessed, those costs shall become a lawful debt due and owing to the state by that person.
Monies received under this section shall be deposited as general funds.
(g) Severability. - Every word, phrase, clause, section, subsection, and any of the
provisions of this section are hereby declared to be severable from the whole, and a declaration of
unenforceability or unconstitutionality of any portion of this section, by a judicial court of
competent jurisdiction, shall not affect the portions remaining.
(h) Sentenced persons approaching release. - Notwithstanding the provisions set forth
within this section, any sentenced person committed under the direct care, custody, and control of
the adult correctional institutions, who is within six (6) months of the projected good time release
date, provided that the person shall have completed at least one-half ( 1/2) of the full term of
incarceration, or any person who is sentenced to a term of six (6) months or less of incarceration,
provided that the person shall have completed at least three-fourths ( 3/4) of the term of
incarceration, may in the discretion of the director of corrections be classified to community
confinement. This provision shall not apply to any person whose current sentence was imposed
upon conviction of murder, first degree 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 a sentenced, adjudged or detained person has been placed
into community confinement within that department's jurisdiction. That notice will include the
nature of the offense and the express terms and conditions of that person's confinement. That
notice shall also be given to the appropriate police department when a person in community
confinement within that department's jurisdiction is placed in escape status.
(j) No incarceration credit for persons awaiting trial. - No detainee shall be given
incarceration credit by the director for time spent in community confinement while awaiting trial.
(k) No confinement in college or university housing facilities. - Notwithstanding any
provision of the general laws to the contrary, no person eligible for community confinement shall
be placed in any college or university housing facility, including, but not limited to, dormitories,
fraternities or sororities. College or university housing facilities shall not be considered an
"eligible residence" for "community confinement."
(l) A sentencing judge shall have authority to waive overnight stay or incarceration at the
adult correctional institution after the sentencing of community confinement. Such a waiver shall
be binding upon the adult correctional institution and the staff thereof, including, but not limited
to the community confinement program.
SECTION 2. This act shall take effect upon passage.