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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          8183
                    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
        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 and to be so
    18  debilitated  or incapacitated as to create a reasonable probability that
    19  he or she is physically [or cognitively]  incapable  of  presenting  any
    20  danger  to society, provided, however, that no inmate serving a sentence
    21  imposed upon a conviction for [murder in the first degree or an  attempt
    22  or conspiracy to commit murder in the first degree shall be eligible for
    23  such  release,  and  provided  further that no inmate serving a sentence
    24  imposed upon a conviction for] any of the following  offenses  shall  be
    25  eligible  for  such  release  [unless  in  the  case of an indeterminate
    26  sentence he or she has served at least one-half of the minimum period of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16004-01-6
        S. 8183                             2

     1  the sentence and in the case of a determinate sentence  he  or  she  has
     2  served  at  least  one-half  of  the  term  of  his  or  her determinate
     3  sentence]:  murder in the first degree, murder  in  the  second  degree,
     4  manslaughter  in  the  first  degree, any offense defined in article one
     5  hundred thirty of the penal law or an attempt to  commit  any  of  these
     6  offenses.  [Solely  for the purpose of determining medical parole eligi-
     7  bility pursuant to this section, such one-half of the minimum period  of
     8  the  indeterminate  sentence and one-half of the term of the determinate
     9  sentence shall not be credited with any time served under the  jurisdic-
    10  tion of the department prior to the commencement of such sentence pursu-
    11  ant  to the opening paragraph of subdivision one of section 70.30 of the
    12  penal law or subdivision two-a of section 70.30 of the penal law, except
    13  to the extent authorized by subdivision three of section  70.30  of  the
    14  penal law.]
    15    §  3. Paragraph (a) of subdivision 1 of section 259-r of the executive
    16  law, as amended by section 38-l-1 of subpart A of part C of  chapter  62
    17  of the laws of 2011, is amended to read as follows:
    18    (a)  The  board  shall have the power to release on medical parole any
    19  inmate serving an indeterminate [or determinate] sentence  of  imprison-
    20  ment  who,  pursuant to subdivision two of this section, has been certi-
    21  fied to be suffering from a terminal condition, disease or syndrome  and
    22  to  be  so debilitated or incapacitated as to create a reasonable proba-
    23  bility that he or  she  is  physically  [or  cognitively]  incapable  of
    24  presenting  any  danger  to  society,  provided, however, that no inmate
    25  serving a sentence imposed upon a conviction for [murder  in  the  first
    26  degree  or an attempt or conspiracy to commit murder in the first degree
    27  shall be eligible for such release, and provided further that no  inmate
    28  serving  a  sentence imposed upon a conviction for] any of the following
    29  offenses shall be eligible for such release [unless in the  case  of  an
    30  indeterminate  sentence  he  or  she has served at least one-half of the
    31  minimum period of the sentence and in the case of a determinate sentence
    32  he or she has served at least one-half of the term of his or her  deter-
    33  minate  sentence]:    murder  in  the first degree, murder in the second
    34  degree, manslaughter in the first degree, any offense defined in article
    35  one hundred thirty of the penal law or an attempt to commit any of these
    36  offenses. [Solely for the purpose of determining medical  parole  eligi-
    37  bility  pursuant to this section, such one-half of the minimum period of
    38  the indeterminate sentence and one-half of the term of  the  determinate
    39  sentence  shall not be credited with any time served under the jurisdic-
    40  tion of the department prior to the commencement of such sentence pursu-
    41  ant to the opening paragraph of subdivision one of section 70.30 of  the
    42  penal law or subdivision two-a of section 70.30 of the penal law, except
    43  to  the  extent  authorized by subdivision three of section 70.30 of the
    44  penal law.]
    45    § 4. Paragraph (b) of subdivision 1 of section 259-r of the  executive
    46  law,  as amended by section 38-l of subpart A of part C of chapter 62 of
    47  the laws of 2011, is amended to read as follows:
    48    (b) Such release shall be  granted  only  after  the  board  considers
    49  whether,  in light of the inmate's medical condition, there is a reason-
    50  able probability that the inmate, if released, will live and  remain  at
    51  liberty  without  violating the law, and that such release is not incom-
    52  patible with the welfare of society and will not so deprecate the  seri-
    53  ousness  of  the crime as to undermine respect for the law, and shall be
    54  subject to the limits and conditions specified in  subdivision  four  of
    55  this section. [Except as set forth in paragraph (a) of this subdivision,
        S. 8183                             3

     1  such]  Such  release  may  be  granted at any time during the term of an
     2  inmate's sentence, notwithstanding any other provision of law.
     3    §  5.  Subdivisions  2 and 4 of section 259-r of the executive law, as
     4  amended by section 38-l of subpart A of part C of chapter 62 of the laws
     5  of 2011, are amended to read as follows:
     6    2. (a) The commissioner, on the commissioner's own  initiative  or  at
     7  the request of an inmate, [or an inmate's spouse, relative or attorney,]
     8  may,  in  the exercise of the commissioner's discretion, direct [that an
     9  investigation be undertaken to determine whether] a  diagnosis  [should]
    10  be  made of an inmate who appears to be suffering from a terminal condi-
    11  tion, disease or syndrome. Any such medical diagnosis shall be made by a
    12  physician licensed to  practice  medicine  in  this  state  pursuant  to
    13  section sixty-five hundred twenty-four of the education law. Such physi-
    14  cian  shall  either  be employed by the department, shall render profes-
    15  sional services at the request of the department, or shall  be  employed
    16  by a hospital or medical facility used by the department for the medical
    17  treatment of inmates. The diagnosis shall be reported to the commission-
    18  er  and  shall  include but shall not be limited to a description of the
    19  terminal condition, disease or syndrome suffered by the inmate, a  prog-
    20  nosis  concerning  the  likelihood that the inmate will not recover from
    21  such terminal condition, disease  or  syndrome,  a  description  of  the
    22  inmate's  physical  [or  cognitive]  incapacity  which  shall  include a
    23  prediction respecting the likely  duration  of  the  incapacity,  and  a
    24  statement  by  the  physician of whether the inmate is so debilitated or
    25  incapacitated as to be severely restricted in  his  or  her  ability  to
    26  self-ambulate  [or  to  perform  significant  normal activities of daily
    27  living. This report also shall include a recommendation of the type  and
    28  level  of  services  and  treatment  the inmate would require if granted
    29  medical parole and a recommendation for the types of settings  in  which
    30  the  services  and  treatment  should  be given] and care for himself or
    31  herself.
    32    (b) The commissioner, or the commissioner's designee, shall review the
    33  diagnosis and may certify that the inmate is suffering from such  termi-
    34  nal condition, disease or syndrome and that the inmate is so debilitated
    35  or incapacitated as to create a reasonable probability that he or she is
    36  physically [or cognitively] incapable of presenting any danger to socie-
    37  ty. If the commissioner does not so certify then the inmate shall not be
    38  referred  to  the board for consideration for release on medical parole.
    39  If the commissioner does so certify, then the commissioner shall[, with-
    40  in seven working days of receipt of such diagnosis,] refer the inmate to
    41  the board for consideration for release on medical parole.  However,  no
    42  such  referral of an inmate to the board shall be made unless the inmate
    43  has been examined by a physician and  diagnosed  as  having  a  terminal
    44  condition,  disease  or  syndrome as previously described herein at some
    45  time subsequent to such inmate's admission to a facility operated by the
    46  department [of correctional services].
    47    (c) When the commissioner refers an inmate to the board,  the  commis-
    48  sioner  shall  provide an appropriate medical discharge plan established
    49  by the department. [The department is authorized to  request  assistance
    50  from  the  department  of health and from the county in which the inmate
    51  resided and committed his or her crime, which shall  provide  assistance
    52  with  respect to the development and implementation of a discharge plan,
    53  including potential placements of a releasee.  The  department  and  the
    54  department  of  health  shall  jointly develop standards for the medical
    55  discharge plan that are appropriately adapted to  the  criminal  justice
    56  setting,  based on standards established by the department of health for
        S. 8183                             4

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