Bill Text: NY S08183 | 2015-2016 | General Assembly | Amended

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Bill Title: Eliminates eligibility for medical parole based cognitive inability to present a danger to society or debilitating illness; eliminates requirement for medical parole, that a terminally ill inmate shall have served at least one-half of his or her sentence; requires an inmate to apply for such parole; directs the department of corrections and community supervision to establish standards for medical discharge plans.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2016-09-14 - PRINT NUMBER 8183A [S08183 Detail]

Download: New_York-2015-S08183-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                         8183--A
                    IN SENATE
                                     August 29, 2016
                                       ___________
        Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
          when printed to be committed to the Committee on  Rules  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
        AN  ACT to amend the executive law and the penal law, in relation to the
          eligibility criteria for release on  medical  parole;  and  to  repeal
          section  259-s  of  the  executive  law relating to release on medical
          parole for inmates suffering significant debilitating illnesses
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Subdivision  1  of section 259-c of the executive law, as
     2  amended by section 38-b of subpart A of part C of chapter 62 of the laws
     3  of 2011, is amended to read as follows:
     4    1. have the power and duty of determining  which  inmates  serving  an
     5  indeterminate or determinate sentence of imprisonment may be released on
     6  parole,   or   on   medical  parole  pursuant  to  section  two  hundred
     7  fifty-nine-r [or section two hundred fifty-nine-s] of this article,  and
     8  when and under what conditions;
     9    § 2. The section heading and paragraph (a) of subdivision 1 of section
    10  259-r  of  the executive law, as amended by section 38-l of subpart A of
    11  part C of chapter 62 of the  laws  of  2011,  are  amended  to  read  as
    12  follows:
    13    Release on medical parole [for terminally ill inmates].
    14    (a)  The  board  shall have the power to release on medical parole any
    15  inmate serving an indeterminate or determinate sentence of  imprisonment
    16  who,  pursuant to subdivision two of this section, has been certified to
    17  be suffering from a terminal condition, disease or syndrome which  could
    18  lead  to  a reasonable conclusion that death is, or may be, imminent and
    19  to be so debilitated or incapacitated as to create a  reasonable  proba-
    20  bility  that  he  or  she  is  physically  [or cognitively] incapable of
    21  presenting any danger to society,  provided,  however,  that  no  inmate
    22  serving  a  sentence  imposed upon a conviction for [murder in the first
    23  degree or an attempt or conspiracy to commit murder in the first  degree
    24  shall  be eligible for such release, and provided further that no inmate

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16004-02-6
        S. 8183--A                          2

     1  serving a sentence imposed upon a conviction for] any of  the  following
     2  offenses  shall  be  eligible for such release [unless in the case of an
     3  indeterminate sentence he or she has served at  least  one-half  of  the
     4  minimum period of the sentence and in the case of a determinate sentence
     5  he  or she has served at least one-half of the term of his or her deter-
     6  minate sentence]:   murder in the first degree,  murder  in  the  second
     7  degree, manslaughter in the first degree, aggravated vehicular homicide,
     8  aggravated  manslaughter  in  the  first  degree, aggravated murder, any
     9  offense defined in article one hundred thirty of the  penal  law  or  an
    10  attempt  to  commit  any  of  these offenses. [Solely for the purpose of
    11  determining medical parole eligibility pursuant to  this  section,  such
    12  one-half  of  the  minimum period of the indeterminate sentence and one-
    13  half of the term of the determinate sentence shall not be credited  with
    14  any  time  served  under the jurisdiction of the department prior to the
    15  commencement of such sentence  pursuant  to  the  opening  paragraph  of
    16  subdivision  one  of section 70.30 of the penal law or subdivision two-a
    17  of section 70.30 of the penal law, except to the  extent  authorized  by
    18  subdivision three of section 70.30 of the penal law.]
    19    §  3. Paragraph (a) of subdivision 1 of section 259-r of the executive
    20  law, as amended by section 38-l-1 of subpart A of part C of  chapter  62
    21  of the laws of 2011, is amended to read as follows:
    22    (a)  The  board  shall have the power to release on medical parole any
    23  inmate serving an indeterminate [or determinate] sentence  of  imprison-
    24  ment  who,  pursuant to subdivision two of this section, has been certi-
    25  fied to be suffering from a terminal condition, disease or syndrome  and
    26  to  be  so debilitated or incapacitated as to create a reasonable proba-
    27  bility that he or  she  is  physically  [or  cognitively]  incapable  of
    28  presenting  any  danger  to  society,  provided, however, that no inmate
    29  serving a sentence imposed upon a conviction for [murder  in  the  first
    30  degree  or an attempt or conspiracy to commit murder in the first degree
    31  shall be eligible for such release, and provided further that no  inmate
    32  serving  a  sentence imposed upon a conviction for] any of the following
    33  offenses shall be eligible for such release [unless in the  case  of  an
    34  indeterminate  sentence  he  or  she has served at least one-half of the
    35  minimum period of the sentence and in the case of a determinate sentence
    36  he or she has served at least one-half of the term of his or her  deter-
    37  minate  sentence]:    murder  in  the first degree, murder in the second
    38  degree, manslaughter in the first degree, aggravated vehicular homicide,
    39  aggravated manslaughter in the  first  degree,  aggravated  murder,  any
    40  offense  defined  in  article  one hundred thirty of the penal law or an
    41  attempt to commit any of these offenses.  [Solely  for  the  purpose  of
    42  determining  medical  parole  eligibility pursuant to this section, such
    43  one-half of the minimum period of the indeterminate  sentence  and  one-
    44  half  of the term of the determinate sentence shall not be credited with
    45  any time served under the jurisdiction of the department  prior  to  the
    46  commencement  of  such  sentence  pursuant  to  the opening paragraph of
    47  subdivision one of section 70.30 of the penal law or  subdivision  two-a
    48  of  section  70.30  of the penal law, except to the extent authorized by
    49  subdivision three of section 70.30 of the penal law.]
    50    § 4. Paragraph (b) of subdivision 1 of section 259-r of the  executive
    51  law,  as amended by section 38-l of subpart A of part C of chapter 62 of
    52  the laws of 2011, is amended to read as follows:
    53    (b) Such release shall be  granted  only  after  the  board  considers
    54  whether,  in light of the inmate's medical condition, there is a reason-
    55  able probability that the inmate, if released, will live and  remain  at
    56  liberty  without  violating the law, and that such release is not incom-
        S. 8183--A                          3
     1  patible with the welfare of society and will not so deprecate the  seri-
     2  ousness  of  the crime as to undermine respect for the law, and shall be
     3  subject to the limits and conditions specified in  subdivision  four  of
     4  this section. [Except as set forth in paragraph (a) of this subdivision,
     5  such]  Such  release  may  be  granted at any time during the term of an
     6  inmate's sentence, notwithstanding any other provision of law.
     7    § 5. Subdivisions 2 and 4 of section 259-r of the  executive  law,  as
     8  amended by section 38-l of subpart A of part C of chapter 62 of the laws
     9  of 2011, are amended to read as follows:
    10    2.  (a)  The  commissioner, on the commissioner's own initiative or at
    11  the request of an inmate, [or an inmate's spouse, relative or attorney,]
    12  may, in the exercise of the commissioner's discretion, direct  [that  an
    13  investigation  be  undertaken to determine whether] a diagnosis [should]
    14  be made of an inmate who appears to be suffering from a terminal  condi-
    15  tion, disease or syndrome. Any such medical diagnosis shall be made by a
    16  physician  licensed  to  practice  medicine  in  this  state pursuant to
    17  section sixty-five hundred twenty-four of the education law. Such physi-
    18  cian shall either be employed by the department,  shall  render  profes-
    19  sional  services  at the request of the department, or shall be employed
    20  by a hospital or medical facility used by the department for the medical
    21  treatment of inmates. The diagnosis shall be reported to the commission-
    22  er and shall include but shall not be limited to a  description  of  the
    23  terminal  condition, disease or syndrome suffered by the inmate, a prog-
    24  nosis concerning the likelihood that the inmate will  not  recover  from
    25  such  terminal  condition,  disease  or  syndrome,  a description of the
    26  inmate's physical  [or  cognitive]  incapacity  which  shall  include  a
    27  prediction  respecting  the  likely  duration  of  the incapacity, and a
    28  statement by the physician of whether the inmate is  so  debilitated  or
    29  incapacitated  as  to  be  severely  restricted in his or her ability to
    30  self-ambulate [or to perform  significant  normal  activities  of  daily
    31  living.  This report also shall include a recommendation of the type and
    32  level of services and treatment the  inmate  would  require  if  granted
    33  medical  parole  and a recommendation for the types of settings in which
    34  the services and treatment should be given]  and  care  for  himself  or
    35  herself.
    36    (b) The commissioner, or the commissioner's designee, shall review the
    37  diagnosis  and may certify that the inmate is suffering from such termi-
    38  nal condition, disease or syndrome and that the inmate is so debilitated
    39  or incapacitated as to create a reasonable probability that he or she is
    40  physically [or cognitively] incapable of presenting any danger to socie-
    41  ty. If the commissioner does not so certify then the inmate shall not be
    42  referred to the board for consideration for release on  medical  parole.
    43  If the commissioner does so certify, then the commissioner shall[, with-
    44  in seven working days of receipt of such diagnosis,] refer the inmate to
    45  the  board  for consideration for release on medical parole. However, no
    46  such referral of an inmate to the board shall be made unless the  inmate
    47  has  been  examined  by  a  physician and diagnosed as having a terminal
    48  condition, disease or syndrome as previously described  herein  at  some
    49  time subsequent to such inmate's admission to a facility operated by the
    50  department [of correctional services].
    51    (c)  When  the commissioner refers an inmate to the board, the commis-
    52  sioner shall provide an appropriate medical discharge plan for terminal-
    53  ly ill patients  established  by  the  department.  [The  department  is
    54  authorized  to request assistance from the department of health and from
    55  the county in which the inmate resided and committed his or  her  crime,
    56  which  shall  provide  assistance  with  respect  to the development and
        S. 8183--A                          4

     1  implementation of a discharge plan, including potential placements of  a
     2  releasee.  The  department  and  the  department of health shall jointly
     3  develop standards for the medical discharge plan that are  appropriately
     4  adapted  to the criminal justice setting, based on standards established
     5  by the department of health for hospital  medical  discharge  planning.]
     6  The  board  may  reject all or part of the discharge plan for terminally
     7  ill patients submitted by the department, and may postpone its  decision
     8  pending  [completion of an adequate] submission of a new discharge plan,
     9  or may deny release based on inadequacy of  the  discharge  plan.    The
    10  department  shall  develop standards for the medical discharge plan that
    11  are appropriately adopted to the  criminal  justice  setting,  based  on
    12  standards  established  by the department of health for hospital medical
    13  discharge planning for terminally ill patients.
    14    4. (a) Medical parole granted pursuant to this section shall be for  a
    15  period of six months.
    16    (b)  The  board  shall  require  as  a condition of release on medical
    17  parole that the releasee agree to remain under the care of  a  physician
    18  while  on medical parole and in a hospital established pursuant to arti-
    19  cle twenty-eight of the public health law, a hospice established  pursu-
    20  ant  to  article  forty  of the public health law or any other placement
    21  that can provide appropriate medical care as specified  in  the  medical
    22  discharge  plan required by subdivision two of this section. The medical
    23  discharge plan shall state that the availability of  the  placement  has
    24  been  confirmed,  and  by  whom. [Notwithstanding any other provision of
    25  law, when an inmate who qualifies for  release  under  this  section  is
    26  cognitively incapable of signing the requisite documentation to effectu-
    27  ate  the  medical  discharge plan and, after a diligent search no person
    28  has been identified who could otherwise be  appointed  as  the  inmate's
    29  guardian  by  a  court  of  competent jurisdiction, then, solely for the
    30  purpose of implementing the medical discharge plan, the facility  health
    31  services  director  at the facility where the inmate is currently incar-
    32  cerated shall be lawfully empowered to act as the inmate's guardian  for
    33  the purpose of effectuating the medical discharge.]
    34    (c) [Where appropriate, the] The board shall require as a condition of
    35  release  that  medical  parolees be supervised on intensive caseloads at
    36  reduced  supervision  ratios  similar  to  the  caseloads  for  parolees
    37  released  pursuant  to  the  shock  incarceration program established by
    38  article twenty-six-A of the correction law.
    39    (d) The board shall require as  a  condition  of  release  on  medical
    40  parole  that  the  releasee  undergo periodic medical examinations and a
    41  medical examination at least one month prior to the  expiration  of  the
    42  period  of  medical  parole  and,  for the purposes of making a decision
    43  pursuant to paragraph (e) of this subdivision, that the releasee provide
    44  the board with a report, prepared by  the  treating  physician,  of  the
    45  results of such examination. Such report shall specifically state wheth-
    46  er  or  not  the  parolee continues to suffer from a terminal condition,
    47  disease, or syndrome, and to be so debilitated or incapacitated as to be
    48  severely restricted in his  or  her  ability  to  self-ambulate  [or  to
    49  perform  significant  normal activities of daily living] and to care for
    50  himself or herself.
    51    (e) Prior to the expiration of the period of medical parole the  board
    52  shall review the medical examination report required by paragraph (d) of
    53  this  subdivision  and  may  again grant medical parole pursuant to this
    54  section; provided, however, that the  provisions  of  paragraph  (c)  of
    55  subdivision one and subdivision two of this section shall not apply.
        S. 8183--A                          5
     1    (f) If the updated medical report presented to the board states that a
     2  parolee released pursuant to this section is no longer so debilitated or
     3  incapacitated  as  to  create a reasonable probability that he or she is
     4  physically [or cognitively] incapable of presenting any danger to socie-
     5  ty  or  if  the releasee fails to submit the updated medical report then
     6  the board may not make a new grant of medical parole pursuant  to  para-
     7  graph  (e)  of this subdivision. Where the board has not granted medical
     8  parole pursuant to such paragraph (e) the board shall  promptly  conduct
     9  through  one of its members, or cause to be conducted by a hearing offi-
    10  cer designated by the board, a hearing to determine whether the releasee
    11  is suffering from a terminal condition, disease or syndrome  and  is  so
    12  debilitated  or incapacitated as to create a reasonable probability that
    13  he or she is physically [or cognitively]  incapable  of  presenting  any
    14  danger to society and does not present a danger to society. If the board
    15  makes  such  a  determination  then  it  may make a new grant of medical
    16  parole pursuant to the standards of paragraph (b) of subdivision one  of
    17  this  section.  At  the  hearing,  the  releasee shall have the right to
    18  representation by counsel, including  the  right,  if  the  releasee  is
    19  financially  unable  to  retain  counsel,  to have the appropriate court
    20  assign counsel in accordance with the county or city plan for  represen-
    21  tation  placed in operation pursuant to article eighteen-B of the county
    22  law.
    23    (g) The hearing and determination provided for  by  paragraph  (f)  of
    24  this  subdivision  shall be concluded within the [six] four month period
    25  of medical parole. If the board does not  renew  the  grant  of  medical
    26  parole,  it shall order that the releasee be returned immediately to the
    27  custody of the department.
    28    (h) In addition to the procedures set forth in paragraph (f)  of  this
    29  subdivision,  medical  parole may be revoked at any time upon any of the
    30  grounds specified in paragraph (a) of subdivision three of  section  two
    31  hundred  fifty-nine-i of this article, and in accordance with the proce-
    32  dures specified in subdivision three of section two hundred fifty-nine-i
    33  of this article.
    34    (i) A releasee who is on medical parole and who becomes  eligible  for
    35  parole  pursuant  to  the  provisions  of subdivision two of section two
    36  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
    37  consideration pursuant to such subdivision.
    38    § 6. Section 259-s of the executive law is REPEALED.
    39    §  7.  Subparagraph  (v)  of paragraph (a) of subdivision 1 of section
    40  70.40 of the penal law, as amended by section 127-c of subpart B of part
    41  C of chapter 62 of the laws of 2011, is amended to read as follows:
    42    (v) Notwithstanding any other subparagraph of this paragraph, a person
    43  may be paroled from the institution in which he or she  is  confined  at
    44  any  time on medical parole pursuant to section two hundred fifty-nine-r
    45  [or section two hundred fifty-nine-s] of the executive law or for depor-
    46  tation pursuant to paragraph (d)  of  subdivision  two  of  section  two
    47  hundred  fifty-nine-i  of  the  executive  law  or  after the successful
    48  completion of a shock incarceration program pursuant to article  twenty-
    49  six-A of the correction law.
    50    § 8. This act shall take effect immediately; provided that:
    51    (a)  the amendments to subdivision 1 of section 259-c of the executive
    52  law, made by section one of this act, shall not affect the expiration of
    53  such subdivision and shall expire therewith;
    54    (b) the amendments to paragraph (a) of subdivision 1 of section  259-r
    55  of  the executive law, made by section two of this act, shall be subject
    56  to the expiration and reversion of such paragraph pursuant  to  subdivi-
        S. 8183--A                          6
     1  sion  d of section 74 of chapter 3 of the laws of 1995, as amended, when
     2  upon such date the provisions of section three of this  act  shall  take
     3  effect; and
     4    (c)  the amendments to paragraph (a) of subdivision 1 of section 70.40
     5  of the penal law, made by section seven of this act,  shall  not  affect
     6  the expiration of such paragraph and shall expire therewith.