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NO. 152. AN ACT RELATING TO CORRECTIONS OFFICERS.

(S.240)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 28 V.S.A. § 3(10) is added to read:

(10) Correctional officer. "Correctional officer" means any person who is an employee of the department of corrections whose official duties or job classification includes the supervision or monitoring of a person on parole, probation, or serving any sentence of incarceration whether inside or outside a correctional facility, and who has received training, as approved by the commissioner of corrections, as provided in section 551a of this title.

Sec. 2. 13 V.S.A. § 1028a is added to read:

§ 1028a. ASSAULT OF CORRECTIONAL OFFICER

(a) A person convicted of a simple or aggravated assault against an employee of the department of corrections whose official duties or job classification includes the supervision or monitoring of a person on parole, probation, or serving any sentence of incarceration whether inside or outside a correctional facility, and who was performing a lawful duty, in addition to any other penalties imposed under sections 1023 and 1024 of this title, shall:

(1) For the first offense, be imprisoned not more than one year; and

(2) For the second offense and subsequent offenses, be imprisoned not more than ten years.

(b) A sentence imposed for a conviction of this section shall be served consecutively with and not concurrently with any other sentence.

Sec. 3. 28 V.S.A. § 551 is amended to read:

§ 551. ISSUANCE OF WARRANT; ARREST WITHOUT A WARRANT;

CONFINEMENT PENDING HEARING; AUTHORITY OF CORRECTIONAL

OFFICERS AND LAW ENFORCEMENT OFFICERS

(a) Parole board warrant. The board may issue a warrant for the arrest of a parolee, or *[a notice]* may issue an order, to be served personally upon the parolee, requiring him or her to appear before the board, if the board has reason to believe that a violation of parolehas occurred. The warrant shall authorize *[all]* any law enforcement officers *[named therein]* and any correctional officers to return the *[inmate]* person to the custody of *[the]* a correctional facility *[from which he was released, or to any other suitable detention facility designated by the board]*.

(b) Fugitive from justice. A parolee for whose return a warrant has been issued by the board, if it is found that a warrant cannot be served, shall be considered to be a fugitive from justice or to have fled from justice.

(c) Arrest of person on parole. Any *[parole officer]* correctional officer designated by the commissioner may arrest a parolee without a warrant if, in the judgment of the correctional officer, the person has violated a condition of his or her parole; or may deputize any other law enforcement officer to do so by giving him or her a written statement setting forth that the parolee has, in the judgment of the *[parole]* correctional officer, violated a condition or conditions of his or her parole. The written statement delivered with the *[inmate]* person by the arresting officer to the supervising officer of the correctional facility to which the *[inmate]* person is brought for detention shall be sufficient warrant for detaining him or her.

(d) No right of action. Any parolee arrested and detained in accordance with the provisions of this chapter shall have no right of action against *[the parole officer]* any law enforcement officer, correctional officer, employee of the department of corrections, or any other persons because of such arrest and detention.

(e) Detention pending hearing for parolee. Pending a hearing on the merits upon any charge of violation, the parolee shall continue to be detained at a correctional facility. The parole board may authorize the parolee's release from detention in accordance with the procedures set forth in section 7554 of Title 13. For the purposes of this section, judicial officer, as defined in section 7554(f) of Title 13, shall include the *[chairman]* chair of the parole board, or his or her designee. There shall be no right to bail.

Sec. 4. 28 V.S.A. § 301 is amended to read:

§ 301. SUMMONS OR ARREST OF PROBATIONER

At any time before the discharge of the probationer or the termination of the period ofprobation:

(1) The court may summon the probationer to appear before it or may issue a warrant for his or her arrest.

(2) Arrest of person on probation. Any *[probation]* correctional officer may arrest a probationer without a warrant if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation; or may deputize any other law enforcement officer to *[do so]* arrest a probationer without a warrant by giving him or her a written statement setting forth that the probationer has, in the judgment of the *[probation]* correctional officer, violated a condition or conditions of his or her probation. The written statement delivered with the *[probationer]* person by the arresting officer to the supervising officer of the correctional facility to which *[he]* the person is brought for detention shall be sufficient warrant for detaining him or her.

(3) No right of action. Any probationer arrested and detained in accordance with the provisions of this chapter shall have no right of action against *[the probation]* *[officer]* any law enforcement officer, correctional officer, employee of the department of corrections, or any other persons because of such arrest and detention.

(4) Detention pending hearing for probationer. *[The commissioner or any employee acting under his direction may apprehend and detain the probationer under the]* *[authority of the warrant issued by the court which placed the offender on probation, in accordance with section 203 of this title.]* Pending a hearing on the merits upon any charge of violation, the probationer shall continue to be detained at a correctional facility.

Sec. 5. 28 V.S.A. § 363 is amended to read:

§ 363. SUMMONS OR ARREST OF PERSON SERVING A SUPERVISED COMMUNITY SENTENCE

(a) Parole board warrant. The parole board may issue a warrant for the arrest of an offender or a notice, to be served personally upon the offender, requiring the offender to appear before the board, if the board has reason to believe that a violation of conditions or violation of law has occurred. The warrant shall authorize *[all]* any law enforcement officers *[named therein]* and any correctional officers to return the offender to the custodyof a correctional facility, or to any other suitable detention facility designated by the board.

(b) Broken terms of parole. If the board issues a warrant for the return of an offender and it is found that the warrant cannot be served, the offender shall, for purposes of extradition only, be considered as having broken the terms of parole.

(c) Arrest of person on serving supervised community sentence. Any *[designated]* *[corrections employee]* correctional officer designated by the commissioner may arrest a person in supervised community sentence without a warrant if, in the judgment of the correctional officer, the person has violated a condition or conditions of supervised community sentence, or may deputize any other law enforcement officer to do so by giving the officer a written statement setting forth that the offender has, in the judgment of the *[corrections employee]* correctional officer, violated a condition or conditions of supervised community sentence. The written statement delivered with the offender by the arresting officer to the supervising officer of the correctional facility to which the offender is brought for detention shall be sufficient warrant for detaining the offender.

(d) No right of action. A person serving in supervised community sentence arrested and detained in accordance with the provisions of this chapter and rules established by the commissioner, shall not have a right of action against the commissioner, the parole board, *[the supervising corrections employee]* any law enforcement officer, correctional officer, employee of the department of corrections, or any other person because of the arrest and detention.

Sec. 6. 28 V.S.A. § 551a is added to read:

§ 551a. LAW ENFORCEMENT POWERS OF CORRECTIONAL OFFICERS;

TRAINING REQUIREMENTS

(a) The commissioner of corrections shall establish training requirements necessary for a correctional officer to be authorized to exercise the power to arrest a person on probation under section 301 of this title, to arrest a person serving supervised community sentence under section 363 of this title, or to arrest a person on parole under section 551 of this title. The required training shall include but not be limited to training in search and seizure, criminal law, authority to arrest, use of force, reporting and record keeping, andliability for actions and conduct.

(b) The commissioner may also authorize and designate any correctional officer as defined in section 3(10) of this title to become certified by the criminal justice training council as a part-time law enforcement officer, pursuant to the provisions of chapter 151 of Title 20. The commissioner and the director of the training academy shall develop curriculum subject to the approval of the training council. The commissioner by department policy may prescribe the use of those law enforcement powers consistent with the official duties and job descriptions of the correctional officer, and may direct that the correctional officer not carry any weapon while on duty. Any person hereby certified shall be sworn by the commissioner.

Sec. 7. Rule 3 of the Vermont Rules of Criminal Procedure is amended to read:

RULE 3. ARREST WITHOUT WARRANT; CITATION TO APPEAR

(a) Arrest without Warrant. A law enforcement officer may arrest without warrant a person whom the officer has probable cause to believe has committed a crime in the presence of the officer. Such an arrest shall be made while the crime is being committed or without unreasonable delay thereafter. An officer may also arrest a person without warrant in the following situations:

* * *

(7) pursuant to the authority granted by 28 V.S.A. § 551 pertaining to persons on parole, the authority granted under 28 V.S.A. § 363 pertaining to persons serving supervised community sentence, and the authority granted by 28 V.S.A. § 301 pertaining to persons on probation.

* * * [Rest of Rule Omitted] * * *

Sec. 8. 3 V.S.A. § 459(d)(2) is amended to read:

(2) Upon early retirement, a group F member, except facility employees *[in]* of the department of corrections and department of corrections employees who provide direct security and treatment services to offenders under supervision in the community, shall receive an early retirement allowance which shall be equal to the normal retirement allowance reduced by one-half of one percent for each month the member is under age 62at the time of early retirement. Group F members who have 20 years of service as facility employees *[in]* of the department of corrections or as department of corrections employees who provide direct security and treatment services to offenders under supervision in the community shall receive an early retirement allowance which shall be equal to the normal retirement allowance at age 55 without reduction; provided the 20 years of service occurred in one or more of the following capacities as an employee of the department of corrections: facility employee, community service center employee or court and reparative service unit employee.

Sec. 9. 28 V.S.A. § 808 is amended to read:

§ 808. FURLOUGHS GRANTED TO INMATES; MEDICAL FURLOUGH

* * *

(f) Medical furlough. The commissioner may place on medical furlough any inmate who is serving a sentence, including an inmate who has not yet served the minimum term of the sentence, who is diagnosed as suffering from a terminal or debilitating condition so as to render the inmate unlikely to be physically capable of presenting a danger to society. The commissioner shall develop a policy regarding the application for, standards for eligibility of and supervision of persons on medical furlough. The inmate may be released to a hospital, hospice, other licensed inpatient facility or other housing accommodation deemed suitable by the commissioner.

Sec. 10. 28 V.S.A. § 751 is amended to read:

§ 751. GENERAL PROVISIONS GOVERNING *[EMPLOYMENT OF INMATES]*

OFFENDER WORK

(a) To return value to communities and victims, to establish good habits of work and responsibility, to promote the vocational training of *[inmates]* offenders and to reduce the cost of operation of the *[correctional facilities, inmates]* department of corrections, offenders may be employed in constructive and diversified activities in the production and delivery of goods, services and foodstuffs to add value to communities, to maintain *[the facility]* correctional facilities and *[its]* their inmates, for state use and for other purposes expressly authorized by law. To accomplish these purposes, the commissioner mayestablish and maintain industries *[and]*, farms and institutional work programs at appropriate correctional facilities plus community service work programs throughout the state.

(b) No *[inmate]* offender shall be required to engage in unreasonable labor, and no *[inmate]* offender shall be required to perform any work for which he or she is declared unfit by a physician employed or retained by the department.

(c) The commissioner shall make rules and regulations governing the hours and conditions of labor of *[inmates]* offenders at correctional facilities and in community service work, and the rates of compensation of *[inmates]* offenders for employment. Wage payments of *[inmates]* offenders shall be set aside in a separate fund. The regulations of the department may provide for the making of deductions from wages of *[inmates]* offenders to defray part or all of the cost of *[inmate]* offender maintenance. The regulations may also provide for the setting aside by the department of a portion of the wages to enable the *[inmate]* offender to contribute to the support of his or her dependents, if any, to make necessary purchases from *[the]* a commissary, to purchase approved books, instruments and instruction not supplied by *[the]* a correctional facility and to set aside sums to be paid to him *[at the time of his]* or her upon release from *[the]* a facility. Any interest which accrues from these wages during the period of *[the]* confinement of *[the inmate]* an offender shall be credited to any fund maintained by the correctional facility for the welfare of *[inmates]* offenders.

(d) The labor or time of an *[inmate]* offender, except for the refinishing of wood and metal furniture, shall not be sold, contracted or hired out by the state to any private person or enterprise. The work product of *[inmate]* offender labor, however, may be sold to any agency or unit of government of the state, in accordance with the rules and regulations of the department. The work product of *[inmate]* offender labor also may be sold:

(1) to the federal government;

(2) to any state or political subdivision of a state, or to any nonprofit organization which is exempt from federal or state income taxation, subject to federal law, to the laws of the recipient state and to the rules of the department; or

(3) to any private person or enterprise providing the governor, upon determinationthat the work product of *[inmate]* offender labor is not otherwise produced within the state, gives express written authorization to the commissioner which shall be revocable at any time. *[Inmates]* Offenders may work for other departments of the state, with the express permission of the commissioner. The governor may authorize any work of *[inmates]* offenders deemed necessary and appropriate in the event of a civil emergency.

(e) Notwithstanding the provisions of subsection (d) of this section, the supervising officer of any correctional facility shall be authorized to sell articles or handiwork made by *[inmates]* offenders. *[Inmates]* Offenders shall be entitled to receive the proceeds realized from the sale of their handiwork, except that the supervising officer of any facility shall have the authority to deduct, in his or her discretion, from the proceeds of the sale such sums as may be required to pay for the costs of sale, purchase of supplies and expenses incurred to carry on handiwork programs.

(f) The director of offender work programs is authorized to sell pursuant to subsection (d) of this section the goods and services produced by offenders participating in offender work programs. Offender work programs managers shall seek to offset production and service costs from product and service sales; however, this financial objective shall not be pursued to the detriment of the purposes of offender work programs set out in subsection (a) of this section or to the detriment of private businesses as safeguarded by section 761 of this title.

(g) A portion of all goods and services produced by offenders and available for purchase by nonprofit and municipal entities, and a portion of all offender community services available to these entities, shall be allocated on a merit basis. The commissioner shall adopt by rule pursuant to chapter 25 of Title 3 a merit-based allocation method for this purpose. The commissioner shall determine annually the total value of such goods and services to be allocated in this manner, after consulting with the offender work programs board.

Sec. 11. 28 V.S.A. § 752 is amended to read:

§ 752. *[MAINTENANCE OF REVOLVING]* OFFENDER WORK PROGRAMS

SPECIAL FUND

(a) *[A revolving]* An offender work programs special fund shall be maintained for the purpose of carrying out the provisions of section 751 of this title, which fund shall include any appropriations made from time to time by the state legislature and any sums obtained from the sale of goods and services produced by *[inmates]* offenders pursuant to *[section 751(e)]* subsections 751(e) and (f) of this title. The special fund shall be managed pursuant to subchapter 5 of chapter 7 of Title 32.

(b) Any expenses incurred by *[the inmate employment program]* offender work programs shall be defrayed by this fund.

(c) All balances of the fund remaining at the end of any fiscal year shall be carried forward and be made available for the succeeding fiscal year, and shall be kept as a *[revolving]* special fund by the state treasurer, except that any balance at the end of a fiscal year not needed to maintain offender work programs or for other purposes provided by section 751 or 761 of this title shall by September 1 of the subsequent fiscal year be transferred to the victims' compensation fund established under chapter 167 of Title 13.

(d) The fund also may be used, at the discretion of the commissioner, to further the raising, harvesting and preservation of food.

(e) Purchases of materials for resale may be made from the fund, but the fund shall be maintained intact except for temporary depletion in making such purchases for resale.

Sec. 12. 28 V.S.A. § 761 is amended to read:

§ 761. OFFENDER WORK PROGRAMS BOARD

(a) Board established. An offender work programs board is established for the purpose of advising the *[department]* commissioner on the use of offender labor for the public good. The board shall base its considerations and recommendations to the commissioner on a review of plans for offender work programs pursuant to subsection (b) of this section, and on other information as it deems appropriate.

(1) The board shall consist of nine members, each appointed by the governor for athree-year term, except that the terms of the first members shall be as determined by the board, or until a successor is appointed, as follows:

(A) four representatives of customers of the products and services of offender work programs, two of whom shall represent public sector customers, and two of whom shall represent private nonprofit organization customers;

(B) two representatives of private business organizations;

(C) two representatives of labor or labor organizations; and

(D) one at large member.

(2) Members of the board shall elect a chair and vice-chair from among the members, each of whom shall serve for one year or until a successor is elected.

(3) The board shall report on its activities at the request of the commissioner, and at least annually to the commissioner and to the house and senate committees on institutions.

(4) The board shall be provided administrative and staff support by the department of corrections.

(5) All board members shall be reimbursed from the special fund established by section 752 of this title for per diem and expenses incurred in the performance of their duties pursuant to section 1010 of Title 32.

(b) Offender work programs plan. The director of offender work programs shall annually submit to the board for its review a three-year plan for production by offender work programs (OWP). The plan shall provide for the full use of current and projected OWP productive capacity, but with minimal disruption to existing private businesses. In reviewing the plan, and forming its recommendations concerning it to the commissioner, the board shall:

(1) assure itself that the plan is informed by thorough and accurate analysis of private business activity in the specific market segments concerned, for which purpose the board shall solicit advice from experts on the Vermont economy and from potentially affected private businesses and labor groups;

(2) propose a maximum level of annual OWP activity to be permitted in each market segment during the term of the plan; and

(3) publicize its recommendations for OWP market activity among potentially affected private business and labor groups.

(c) Offender work programs expansion. The Vermont correctional industries component of offender work programs shall not expand into an existing market unless the commissioner has consulted with the offender work programs board and has evaluated the impact of the expansion on the existing market.

Approved: April 29, 1998