THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
COMMISSION ON SENTENCING
[204 PA. CODE CH. 309]
Proposed State Parole Guidelines
[52 Pa.B. 2344]
[Saturday, April 23, 2022]The Pennsylvania Commission on Sentencing hereby publishes for public comment proposed State Parole Guidelines, 204 Pa. Code Chapter 309, Subchapter A, §§ 309.1—309.5. The proposed guidelines are set forth in Annex A. A previous version of the guidelines was published in the Pennsylvania Bulletin on July 11, 2020 (50 Pa.B. 3409).
The Commission is authorized by 42 Pa.C.S. § 2154.5 to adopt guidelines that shall be considered by the Pennsylvania Parole Board and any other paroling entity when exercising its power to parole and reparole all persons sentenced by any court in this Commonwealth to imprisonment in any correctional institution. The guidelines are to:
(1) Give primary consideration to the protection of the public and to victim safety;
(2) Provide for due consideration of victim input;
(3) Be designed to encourage inmates and parolees to conduct themselves in accordance with conditions and rules of conduct set forth by the department or other prison facilities and the board;
(4) Be designed to encourage inmates and parolees to participate in programs that have been demonstrated to be effective in reducing recidivism, including appropriate drug and alcohol treatment programs;
(5) Provide for prioritization of incarceration, rehabilitation and other criminal justice resources for offenders posing the greatest risk to public safety; and
(6) Use validated risk assessment tools, be evidence based and take into account available research relating to the risk of recidivism, minimizing the threat posed to public safety and factors maximizing the success of reentry.
There is no right to parole in the Commonwealth. There is, however, the right to consideration of parole. The State Parole Guidelines are advisory and do not remove the discretionary authority of the Pennsylvania Parole Board.
On June 4, 2020, the Commission approved for the purpose of public hearings proposed State Parole Guidelines. Two virtual (Zoom webinar) hearings were held to receive public comment: a hearing on August 31, 2020, limited to testimony from incarcerated individuals housed at four State Correctional Institutions; and a hearing on September 9, 2020, open to testimony from the general public.
On September 10, 2020, the Commission tabled action on adoption of the parole guidelines pending validation and deployment by the Pennsylvania Department of Corrections of a new risk assessment instrument, the Static Risk Offender Needs Guide—Revised (STRONG-R), intended to replace the Level of Service Inventory—Revised (LSI-R) as the validated risk assessment instrument. On March 10, 2022, due to delays in the implementation of STRONG-R, the Commission voted to resume consideration of the proposed parole guidelines, to serve as interim parole guidelines until the validation and deployment of the STRONG-R and subsequent reconstruction of the parole guidelines. The Commission approved minor changes to the proposed State Parole Guidelines that were published on June 4, 2020 and authorized the scheduling of hearings to receive public comment.
In accordance with 42 Pa.C.S. § 2155, the Commission shall publish in the Pennsylvania Bulletin proposed guidelines and hold public hearings not earlier than 30 days and not later than 60 days thereafter to afford an opportunity for the following persons and organizations to testify:
(i) Pennsylvania District Attorneys Association
(ii) Chiefs of Police Associations
(iii) Fraternal Order of Police
(iv) Public Defenders Organization
(v) Law School faculty members
(vi) Pennsylvania Parole Board
(vii) Pennsylvania Department of Corrections
(viii) Pennsylvania Bar Association
(ix) Pennsylvania Wardens Association
(x) Pennsylvania Association on Probation, Parole and Corrections
(xi) Pennsylvania Conference of State Trial Judges
(xii) Any other interested person or organization
The Commission has scheduled the following public hearings:
Hearing I. Date: Tuesday, May 31, 2022 Time: 10:00 a.m. Zoom: Zoom Webinar Registration Link: https://bit.ly/PCS2022May31PubHrng Testimony during Hearing I is limited to incarcerated individuals committed to the Pennsylvania Department of Corrections. Those wishing to attend Hearing I via Zoom Webinar may register at the link provided above.
Hearing II. Date: Wednesday, June 1, 2022 Time: 2:00 p.m. Zoom: Webinar Registration Link: https://bit.ly/PCS2022June1PubHrng Onsite Location: Pennsylvania Capitol Complex, 523 Irvis Building, Harrisburg, PA Those wishing to attend Hearing II and/or testify during Hearing II via Zoom Webinar may register at the link provided above. Those wishing to testify in person during Hearing II may register by contacting the Commission (Cathy Dittman—814-863-5729 or cwd2@psu.edu) to schedule on-site testimony.
Persons or organizations wishing to testify are asked to register at least five business days prior to the hearing and to provide an electronic copy of any testimony. Written comments from persons or organizations not wishing to testify should be received by the Commission at least five business days before the last-scheduled public hearing. Forward all testimony and documents to Cathy Dittman (cwd2@psu.edu).
All Commission meetings are open to the public. Any proposals adopted by the Commission will be submitted to the General Assembly for review by way of publication in the Pennsylvania Bulletin and will become effective 90 days after publication unless rejected by concurrent resolution of the General Assembly.
REPRESENTATIVE TODD STEPHENS,
Chair
Commentary This Commentary highlights key factors considered in the initial development and subsequent modification of the proposed State Parole Guidelines. The proposed State Parole Guidelines are set forth in Annex A.
As provided in statute, 61 Pa.C.S. § 6102 (relating to operation of parole system generally):
The parole system shall operate consistently with the following provisions:
(1) The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison.
(2) In providing these benefits to the criminal justice system, the Board and any other paroling entity shall first and foremost seek to protect the safety of the public.
(3) In addition to this goal, the Board and any other paroling entity shall address input by crime victims, assist in the fair administration of justice by ensuring the custody, control and treatment of paroled offenders, shall consider any applicable guidelines established by the commission and shall ensure that parole proceedings, release and recommitment are administered in an efficient and timely manner.
Further, 42 Pa.C.S. § 2154.5 (relating to adoption of guidelines for parole) requires the Commission to adopt guidelines for parole that consider the following:
(1) Give primary consideration to the protection of the public and to victim safety;
(2) Provide for due consideration of victim input;
(3) Be designed to encourage inmates and parolees to conduct themselves in accordance with conditions and rules of conduct set forth by the department or other prison facilities and the board;
(4) Be designed to encourage inmates and parolees to participate in programs that have been demonstrated to be effective in reducing recidivism, including appropriate drug and alcohol treatment programs;
(5) Provide for prioritization of incarceration, rehabilitation and other criminal justice resources for offenders posing the greatest risk to public safety; and
(6) Use validated risk assessment tools, be evidence based and take into account available research relating to the risk of recidivism, minimizing the threat posed to public safety and factors maximizing the success of reentry.
Pursuant to 61 Pa.C.S. § 6137 (relating to parole power), the Board is required to consider guidelines for parole and reparole established by the Commission, and to report to the Commission the parole and reparole decision and provide a contemporaneous written statement of reasons for any deviation from the guidelines. In addition to consideration of the guidelines, the Board may develop and use internal decisional instruments.
The guidelines for parole established by the Commission are advisory guidelines, which must be considered by the Board but for which the Board may exercise discretion in deviating from the recommendations. The guidelines do not remove the discretionary authority of the Pennsylvania Parole Board, and do not prevent the Board from adopting policies and procedures related to parole decision-making.
As described in the document published prior to the 2020 public hearings, the Commission has proposed a two-step process for consideration of state parole. The first step involves the preparation and consideration of the State Parole Guidelines recommendation; the second step involves the consideration by the Board of these guidelines and other factors that may require or suggest a deviation from the guidelines.
The preparation of the State Parole Guidelines recommendations involves two categories of factors: risk and preparedness. As required by statute, a validated risk assessment instrument, the Level of Service Inventory—Revised (LSI-R), is used to address public and victim safety, while the analysis of objective criteria related to behavior and compliance and the weighting of factors identified during the parole interview are used to address readiness for parole. Based on these factors, and whether the individual's current or prior convictions include a violent offense, the proposed State Parole Guidelines provide recommendations to grant or refuse parole. The State Parole Guidelines Matrices, found at § 309.4(a) and (b) contain the parole recommendations.
The parole guidelines also require the Board to consider statutory mandates and factors such as public safety inputs and reentry needs to further individualize the decision by the Board and inform the exercise of discretion. The State Parole Guidelines Form, found at § 309.5, is used to document and report decisions by the Board and reasons for deviation from the guidelines to the Commission.
Following the public hearings held in 2020, the Commission approved several modifications to the proposed State Parole Guidelines that were initially published. These include changes to the interview factors in order to give greater consideration to progress in rehabilitation, treatment, and education; replacing override factors with a non-exclusive list of reasons for deviation from the parole guidelines; and collecting additional information based on the parole decision: when parole is granted, conditions imposed that are not required by statute nor recommended by a validated risk assessment case management plan; and when parole is denied, reasons for scheduling a review that is more than one year from the date of the parole decision. The Commission also continued discussions with the Department of Corrections and the Parole Board regarding the transition away from the use of the LSI-R as the validated risk assessment instrument.
On September 10, 2020, the Commission tabled action on adoption of the parole guidelines pending validation and deployment by the Pennsylvania Department of Corrections (DOC) of a new risk assessment instrument, the Static Risk Offender Needs Guide—Revised (STRONG-R), which is intended to replace the LSI-R as the validated risk assessment instrument. Although the LSI-R has been validated for the general DOC population, concerns have been raised about predictive validity for specific populations (e.g., African Americans, females). While the LSI-R continues to be used by the DOC and the Parole Board, work is underway to adopt the STRONG-R for use with the DOC population, to provide improved reliability and validity, to facilitate reentry by using a single instrument within the institutional and in the community, and to take advantage of the enhanced case management attributes of this new instrument.
Due to delays in the implementation of STRONG-R and recognizing the continued use of the LSI-R by the DOC and Parole Board, the Commission voted on March 10, 2022 to resume consideration of the State Parole Guidelines. Because of the nearly two-year delay in action, the Commission voted to publish a revised version of the proposed guidelines, and to schedule public hearings. If adopted and implemented following public hearings, the State Parole Guidelines will serve as interim parole guidelines until the validation and deployment of the STRONG-R, and the subsequent reconstruction of the parole guidelines.
Commentary on Annex A
§ 309.1. Preliminary provisions.
Sub-section (a) provides the statutory authority for adopting guidelines for parole (42 Pa.C.S. § 2154.5).
Sub-section (b) provides definitions of terms used in the guidelines, as obtained from the Pennsylvania Parole Board, Department of Corrections, and Commission on Sentencing.
§ 309.2. State parole guidelines standards.
Section 309.2 addresses standards provided in statute for consideration of the guidelines by the Pennsylvania Parole Board, and the reporting of decisions to the Commission.
§ 309.3. Procedure for determining state parole guidelines.
The guidelines recommendations are based on two categories of factors: 1) the risk to public safety, as measured by the risk of recidivism and 2) an assessment of an offender's preparedness for parole release, as measured by pre-interview and interview factors. Both categories were developed based on data analysis of past parole decisions, recidivism, and decision makers' policies and philosophies.
The risk score utilizes the ten criminogenic domains of the Level of Services Inventory-Revised (LSI-R). Scores range from 0 to 54, with higher scores indicating a higher rate of recidivism risk. The guidelines include three risk levels based on risk score: low (0—19), medium (20—33), and high (34 and greater).
The preparedness score is based on seven pre-interview factors and four interview factors. Each is scored as a '1' or '0,' with '1' being more positive or indicating success. Pre-interview factors are a combination of actuarial and dynamic factors and include the Department of Corrections recommendation. Interview factors are grounded in the professional judgement of the decision makers. The guidelines include three preparedness levels based on preparedness scores: low (0—7), medium (8-9), and high (10-11).
The recommendation to grant or refuse parole is based on the intersection of the risk and preparedness categories. These slightly vary depending upon whether the offender has a current or past conviction for a violent offense.
The guidelines are advisory, and the Board may deviate from the guidelines. Reasons for deviation are required and must be reported to the Commission with other parole-related information. Reasons include but are not limited to mental health or medication compliance status, negative interest in parole, an outstanding detainer, judicial input, prosecution or public safety input, and if the maximum sentence date occurs in less than one year.
The guidelines apply to parole decisions for offenders initially being considered for parole and to those previously denied parole. They also apply to parole violators being considered for re-parole.
§ 309.4. State parole guidelines matrices.
The state parole matrices contain recommendations to grant or refuse parole based on two categories of factors: risk of re-offense and preparedness for parole. Each cell recommends either 'grant' or 'refuse' parole. One matrix (a) applies to offenders with a current (instant) or previous conviction for a violent offense. The other matrix (b) applies to offenders without a current (instant) or previous conviction for a violent offense. The recommendations are based on recidivism analysis and grant rates, with a difference between the two matrices found at the intersection of the medium preparedness and medium risk categories.
§ 309.5. State parole guidelines form.
The form documents the risk level associated with the LSI-R score, all pre-interview and interview factors and the associated preparedness level, the state parole guidelines recommendation based on the applicable matrix (violent, non-violent), the decision by the Board, any reason(s) for deviation from the guidelines, and information on conditions of parole or reasons for delay in reviewing a case in which parole is denied.
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
CHAPTER 309. PAROLE GUIDELINES
Subchapter A. STATE PAROLE GUIDELINES § 309.1. Preliminary provisions.
(a) Authorization.
(1) As authorized by 42 Pa.C.S. § 2154.5 (relating to adoption of guidelines for parole), the Commission shall adopt guidelines that shall be considered by the Pennsylvania Parole Board when exercising its power to parole and reparole all persons sentenced by any court in this Commonwealth to imprisonment in any state correctional institution.
(i) The guidelines shall do all of the following:
(A) Give primary consideration to the protection of the public and to victim safety;
(B) Provide for due consideration of victim input;
(C) Be designed to encourage inmates and parolees to conduct themselves in accordance with conditions and rules of conduct set forth by the department or other prison facilities and the Board;
(D) Be designed to encourage inmates and parolees to participate in programs that have been demonstrated to be effective in reducing recidivism, including appropriate drug and alcohol treatment programs;
(E) Provide for prioritization of incarceration, rehabilitation and other criminal justice resources for offenders posing the greatest risk to public safety; and
(F) Use validated risk assessment tools, be evidence based and take into account available research relating to the risk of recidivism, minimizing the threat posed to public safety and factors maximizing the success of reentry.
(ii) Notwithstanding any other provision of law, this section shall not remove the discretionary parole authority of the Board when exercising its power to parole and reparole.
(b) Definitions. For purposes of this chapter:
''Aggregated Sentence.'' Two or more consecutive sentences that have been combined whereby the aggregate minimum term is the sum of the consecutive minimum terms and the aggregate maximum term is the sum of the consecutive maximum terms.
''Conviction Offense.'' Offense for which the original sentence was imposed.
''Court.'' A court of record.
''Detainer.'' A written order of the court or paroling authority to hold a person in custody in a correctional institution pending further legal action.
''Hearing Examiner.'' An agent of the Parole Board who is empowered to sit on parole revocation panels, conduct parole hearings in lieu of panels and conduct parole interviews on behalf of the Parole Board.
''Judicial Proceeding.'' A sentencing hearing in which all offenses for which the offender is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.
''Non-Violent Offender.'' An offender not currently or previously convicted of a violent offense, for which the State Parole Guidelines Matrix (Non-Violent) applies. Non-violent offenders include but are not limited to those eligible for the following:
''Rebuttable Parole.'' A statutorily designated non-violent inmate who has been certified by the DOC based on a good conduct record and nonviolent history.''Recidivism Risk Reduction Incentive (RRRI).'' A sentence imposed upon a non-violent inmate that can allow the opportunity to reduce the minimum sentence upon completion of recommended programming, while maintaining a good conduct record.''Short Sentence Parole.'' Offenders sentenced to state incarceration with an aggregate minimum sentence of two years or less or a recidivism risk reduction incentive minimum sentence of two years or less, excluding ineligibility as defined in 61 Pa.C.S. § 6137.1, may be approved by the Board for parole without requiring an interview. If an offender is committed to the Department of Corrections after the expiration of the minimum sentence, parole may be approved within 30 days after commitment.''Original Sentence.'' The sentence resulting from the original conviction. It is from this sentence the Board paroles the inmate and the parolee serves the remaining time on the street unless recommitted by the Board.
''Panel.'' A two-member unit of the Parole Board comprised of either two Board Members or one Board Member and one Hearing Examiner, empowered to make parole release decisions and recommitment decisions.
''Parole.'' The conditional release from imprisonment of an inmate from a correctional facility to serve the remainder of his/her unexpired sentence in the community under supervision as long as (s)he satisfactorily complies with all terms and conditions provided in the parole order.
''Parole Preparedness Category.'' One of two factors used to determine the recommendations contained in the State Parole Guidelines matrix. The parole preparedness category is a scale based on 11 factors identified prior to and during the parole interview, intended to measure an inmate's readiness for parole release. A higher score indicates greater preparedness. One point is assigned for each positive assessment; 0 points for each negative assessment.
''Parole Risk Category.'' One of two factors used to determine the recommendations contained in the State Parole Guidelines matrix. The parole risk category is determined through the Level of Service Inventory-Revised (LSI-R). The LSI-R is a validated risk-screening instrument used by the Department of Corrections. LSI-R assesses an inmate's general risk based on each of 10 criminogenic domains. Scores range from 0 to 54, with scores of 0 to 19 designated as low risk, scores of 20 to 33 designated as medium risk, and scores of 34 to 54 designated high risk.
''Pennsylvania Parole Board (Board).'' An independent executive branch agency comprised of nine members appointed by the Governor and confirmed by the Senate for six-year terms.
''Reasons for deviation.'' Common reasons found for deviation from parole guidelines include mental health/medication compliance, negative interest in parole, judicial input, prosecution/public safety input, detainer status, and less than one year until maximum sentence reached. Other reasons may apply. Decision makers are required to provide one or more reasons when deviating from the State Parole Guidelines recommendation.
''Sentencing Guidelines Software Web Application (SGS Web).'' A JNET-based application operated by the Commission which includes the modules for Sentencing, Resentencing, and Parole Guidelines. SGS Web serves as the source of data for the original reported sentence and associated information and the reporting source for revocations and resentences.
''State Parole.'' The Pennsylvania Parole Board has paroling authority for offenders sentenced to state incarceration.
''Underlapping Concurrent Sentence.'' A sentence that is served at the same time as the controlling sentence but has a shorter minimum and/or maximum sentence than the controlling sentence.
''Violent Offender.'' An offender with a current or previous conviction as provided below, or offenses otherwise designated by the Pennsylvania Parole Board as violent offense, for which the State Parole Guidelines Matrix (Violent) applies:
42 Pa.C.S. § 9714(g)
42 Pa.C.S. § 9718.1
42 Pa.C.S. § 9799.14
§ 309.2. State parole guidelines standards.
(a) Guidelines. The Board shall consider the State Parole Guidelines when exercising its power to parole and reparole all persons sentenced by any court in this Commonwealth to a state correctional institution.
(b) Effective Date. The State Parole Guidelines apply to all persons sentenced to a state correctional institution and considered for parole on or after January 1, 2023. Amendments to the parole guidelines shall apply to all persons sentenced to a state correctional institution and considered for parole on or after the effective date of the Amendment.
(c) Reasons. In every case in which the Board renders a parole decision, the Board shall make as part of the record a statement of the reason or reasons for the decision to grant or refuse parole.
(d) Deviation from the Guidelines. In every case in which the Board deviates from the guidelines, the Board shall identify reasons for deviation from the guidelines, and the reasons for the deviation from the guidelines shall be recorded on the State Parole Guidelines Form, a copy of which shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in § 309.2(e).
(e) Reporting decision. Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software application (SGS Web) shall be used at the Board's direction to prepare and submit State Parole Guidelines Forms and guidelines-required parole decision information for each consideration of parole or reparole. An example of the State Parole Guidelines Form is found at § 309.5.
(1) The completed State Parole Guidelines Form shall be made a part of the record and the information electronically submitted to the Commission no later than 30 days after the date of the parole decision.
(2) In the case of revocation and recommitment, the completed State Parole Guidelines Form used to report the grant of parole shall be attached to the State Parole Guidelines Form prepared for each consideration of reparole.
§ 309.3. Procedures for determining state parole guidelines.
(a) The State Parole Guidelines consider two categories of factors to determine the parole recommendation: parole risk category and parole preparedness category.
(1) Parole Risk Category.
(i) The LSI-R score is calculated prior to the interview, and the score is used to determine the risk level.
(ii) Risk Level. The LSI-R score is divided into three levels:
(A) High Risk (scores 34 and greater)
(B) Medium Risk (scores of 20 to 33)
(C) Low Risk (scores 19 and less)
(2) Parole Preparedness Category.
(i) Pre-Interview Factors. The pre-interview factors are determined based on a review of Department of Corrections records and scored as a '1' or a '0,' with 1 being successful or positive.
(A) Factors directly related to the offender's behavior and compliance:
(I) Enrollment in and/or completion of required programs.
(II) Misconduct free for the past 12 months.
(III) Free of criminal or assaultive misconducts for the past 12 months.
(IV) One or no prior probation or parole revocations.
(V) Free of alcohol or drug dependence.
(VI) Compliance with all prescribed medications.
(B) Factor related to the recommendation of the Department of Corrections.
(ii) Interview Factors. The interview preparedness factors are based on the professional judgement of the decision maker(s) following a parole interview and scored as a '1' or a '0,' with 1 being positive or successful.
(A) Factors related to progress and commitment to rehabilitation:
(I) Motivation for success or progress in rehabilitation, treatment, or education.
(II) Acceptance of responsibility.
(III) Insight and positive response to address criminal behavior.
(B) Stable release plan (community and/or family support).
(iii) Preparedness Level. The preparedness score is the total of the pre-interview and interview factors and is divided into three levels:
(A) Low preparedness: Score 0 to 7.
(B) Medium preparedness: Score 8 to 9.
(C) High preparedness: Score 10 to 11.
(c) The State Parole Guidelines recommendations are based on the combination of the risk level and preparedness level and include consideration of whether the individual is classified as a violent offender or a non-violent offender. These recommendations are contained in two matrices and found at § 309.4(a) (relating to State Parole Guidelines Matrix (Violent)) and § 309.4(b) (relating to State Parole Guidelines Matrix (Non-Violent)).
(d) Deviations from the Guidelines. The State Parole Guidelines are advisory. The Board must consider the guidelines but may exercise discretion in deviating from the recommendation.
(1) Reasons for deviations from the State Parole Guidelines shall be provided on the State Parole Guidelines Form and reported to the Commission.
(2) Reasons for deviation from the State Parole Guidelines may include but are not limited to the following:
(i) Mental health or medication compliance.
(ii) An inmate's negative interest in parole.
(iii) Judicial input.
(iv) Prosecution and public safety input.
(v) Outstanding detainer.
(vi) Maximum sentence date is less than one year from interview date.
(3) Additional information. The following information shall be provided on the State Parole Guidelines Form and reported to the Commission:
(i) If parole is granted, condition(s) of parole ordered but not required by statute or recommended by a validated risk assessment case management plan.
(ii) If parole is denied, reason(s) a review is scheduled more than one year from the date of the parole decision.
(e) Additional Applications.
(1) The State Parole Guidelines must be considered in all cases for which the Board is authorized to exercise discretionary parole, including all initial and subsequent parole decisions.
(2) For individuals recommitted as parole violators, the State Parole Guidelines must be considered prior to re-parole.
§ 309.4(a). State Parole Guidelines Matrix (Violent).
Preparedness Category Low Medium High Risk
CategoryHigh Refuse Refuse Grant Medium Refuse Refuse Grant Low Refuse Grant Grant § 309.4(b). State Parole Guidelines Matrix (Non-Violent).
Preparedness Category Low Medium High Risk
CategoryHigh Refuse Refuse Grant Medium Refuse Grant Grant Low Refuse Grant Grant § 309.5. State Parole Guidelines Form.
[Pa.B. Doc. No. 22-597. Filed for public inspection April 22, 2022, 9:00 a.m.]
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