CHAPTER 349

AN ACT AMENDING TITLE 11, DELAWARE CODE, PERTAINING TO THE STATE CORRECTIONAL SYSTEM, AND CREATING A DEPARTMENT OF CORRECTION HAVING RESPONSIBILITY FOR THE MAINTENANCE, SUPERVISION AND CONTROL, AND REHABILITATION OF PERSONS COMMITTED TO CORRECTIONAL FACILITIES, ESTABLISHING PROBATION AND PAROLE SERVICES WITHIN SAID DEPARTMENT, AND RELATING GENERALLY TO THE SAID DEPARTMENT OF CORRECTION, ITS OFFICERS, EMPLOYEES, POLICIES, DECISIONS, RESPONSIBILITIES, FINANCES AND PERSONNEL WITHIN ITS JURISDICTION AND CONTROL; PROVIDING FOR CERTAIN OFFENSES; AND MAKING A SUPPLEMENTAL APPROPRIATION TO THE DEPARTMENT; AND COMPLETELY REVISING, RECODIFYING AND AMENDING TITLE 11, DELAWARE CODE, IN RELATION TO SENTENCING, PROBATION, PAROLE, AND PARDONS OF ADULT OFFENDERS, AND PROCEDURES WITH RESPECT TO EXECUTIVE CLEMENCY.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 11, Delaware Code, is amended by repealing Chapter 65, of such Title and enacting in lieu thereof a new Chapter to read as follows:

CHAPTER 65. DEPARTMENT OF CORRECTION

Subchapter I. Purposes and Definitions

§ 6501. Purposes and construction

This Chapter establishes a Department of Correction. The purpose of this Department of Correction shall be the treatment, rehabilitation and restoration of offenders as useful, law-abiding citizens within the community. To achieve this more effectively in a coordinated and united manner, the Department of Correction shall be completely responsible for the maintenance, supervision and administration of adult detention and correctional services and facilities of the State, which include institutional facilities and probation and parole services. These institutions and services shall be diversified in program, construction and staff to provide effectively and efficiently for the maximum study, care, custody, training, and supervision and treatment of those persons committed to the institutional facilities or on probation or parole, so that they may be prepared for release, aftercare, discharge or supervision in the community. This Chapter shall be liberally construed so as to effectuate its purposes.

§ 6502. Definitions

As used in this Chapter:

"BOARD" means the Board of Correction established by this Chapter;

"COMMISSIONERS" means the Commissioner of Correction;

"DEPARTMENT" means the Department of Correction as established by this Chapter. Reference in other statutes to the State Board of Corrections or Board of Trustees or workhouse or jail shall be deemed to mean the Department;

"LAW" includes the laws and ordinances of this State, political subdivisions and municipalities thereof;

"OFFENDER" includes any person convicted of a crime or offense as defined in Section 101 of this Title or the ordinances of any incorporated municipality of this State, including a person committed for civil or criminal contempt, except,

(1) a person not yet eighteen years old when adjudged by a Family or Juvenile Court of this State except when committed to the Department in accordance with law, and

(2) a person who has been determined to be mentally ill or criminally inclined and has been committed to another appropriate authority.

Subchapter II. Department of Correction

§ 6504. Establishment

There is established a Department of Correction. Said Department shall be a continuation of and successor to the State Board of Corrections hereto existing.

§ 6505. General Powers and Duties of the Department

(a) The Department, subject only to powers vested in the judicial and certain executive departments and officers of the State, shall have the duties herein set forth and the exclusive jurisdiction over the care, charge, custody, control, management, administration, and supervision of:

1. All offenders and persons under the custody of the Department of Correction.

2. All institutions for the custody, correction, and rehabilitation of persons committed to its care.

3. Such other facilities as may be established by the Department for the safekeeping, correction or rehabilitation of offenders and persons.

4. Probation services for Courts having jurisdiction of offenders, except Family Courts.

5. Parole services for persons within the institutions and facilities of the Department or on parole.

6. Furnishing the Board of Parole adequate office facilities and supplies to properly perform its duties; to transmit the Board of Parole's budget with its own.

7. Providing consultation services and establishing standards on the design and construction of buildings, programs, administration of detention, jail or other facilities, operated by any county or municipality, and to provide a course of training for the personnel of same and establish standards for the same with annual inspections, publishing the results of such inspections, as well as statistical and other data on persons held in the same.

8. Operating classification committees, diagnostic and treatment programs, and such other programs as may be desirable to fulfill the purposes of this Chapter.

9. Employing such officers, employees and agents and securing offices and quarters as deemed necessary to discharge the functions of the Department.

0. Receiving all offenders committed to the Department.

1. Executing the orders of the Court as to sentences of corporal and capital punishment.

2. Selling the products of its institutions and farms to other institutions supported in all or part by taxes levied within the State of Delaware; prices to be set as provided by rules of the Department. All funds received from such sales shall be deposited in the General Fund. In the event that there is a surplus of the products of the Department's institutions and farms which cannot be sold to the other institutions supported in whole or part by taxes levied within the State, the Department may sell such surplus products on the open market. All funds received from such sales shall be deposited in the General Fund.

0. To agree with the United States authorities for payment to the General Fund of the State of Delaware of such sums as shall be fixed by the Department for the maintenance and support of offenders committed to the Department under authorities of the United States.

1. May accept as agent for the Youth Services Commission of Delaware any minor properly committed under authority of Section 5312 of Title 31. While any such minor is in the custody of the Department, he shall be held separately and apart from the more hardened offenders, and the Department shall bill monthly the Youth Services Commission for the maintenance and upkeep of all such minors in its custody. In all cases where a minor is released from the custody of the Department, the minor shall be redelivered to the Youth Services Commission.

§ 6506. Board of Correction--Composition and Appointment

There shall be a Board of Correction of nine members appointed by the Governor, of persons who have demonstrated interest and preferably have been experienced, in correctional treatment or social welfare. Two members shall be resident of each Kent and Sussex Counties and five members resident of New Castle County. No more than five members shall be of one major political party and no less than four shall be of another major political party. The present members of the State Board of Corrections shall constitute and continue as members of the Board of Correction until their terms expire.

§ 6507. Term

Members shall be appointed for terms of five years.

§ 6508. Vacancies

The Governor shall fill any vacancy, otherwise than through the expiration of a member's term for the unexpired term.

§ 6509. Oath of office

Each member, before entering upon the duties of office, shall take and subscribe to the constitutional oath.

§ 6510. Compensation and expenses

(a) Each member of the Board shall receive $20 per day as compensation for services when attending a meeting of the Board, not to exceed 36 meetings each year.

(b) In addition, each member shall receive necessary expenses including mileage, incurred in attending such meetings, and performing its duties.

§ 6511. Officers and organization

The Board shall elect from its members a chairman and vice-chairman. Its secretary need not be a member of the Board. It shall provide generally for its organization and its rules for the conduct of its proceedings. A majority vote of the Board of nine members shall be necessary to pass a motion or resolution.

§ 6512. Meetings

The Board shall meet at least twelve times a year and at such other times as the Board or the Chairman shall determine. The Chairman shall call a meeting when requested by a majority of the Board.

§ 6513. Powers of the Board

The Board shall be the general policy-making authority for the Department, not its administrative or executive head, but the administrative or executive head shall be responsible directly to the Board which shall have such other duties as are granted in this Act. The Board shall include in its duties:

1. Establish criteria for the employment of and screening applications for Commissioner.

2. Assist in developing modern personnel policies for the Department, including written job descriptions and qualifications and criteria for the employment of personnel for each position in the Department.

3. Make regular visits in and observations of all Department-operated facilities and services.

4. Continually review Department policy and operation.

5. Study procedures in and the development and progress of the correctional system, including probation and parole, of this State; study and consult with officers and other personnel concerning correctional institutions and probation and parole systems elsewhere; but primarily interpret the Department's responsibilities, problems, functions and needs.

6. Review and frame proposals concerning legislation important to the Department.

Subchapter III. Commissioner of Correction

§ 6515. Office and appointment

The office of Commissioner of Correction is created. He shall be appointed by the Board for an indefinite term at the pleasure of the Board, but shall be removed only for cause. The salary of the Commissioner shall be as fixed by the Board.

The Commissioner shall have had a minimum of an earned graduate degree above that of bachelor's, from an accredited college or university, in one of the behavioral sciences, such as corrections, sociology, psychology, or social work, with five years' experience in the correction field including a responsible administrative position.

He shall be a person of sound character, intellectual maturity, emotional stability, judgment, and ability to work with others and lead others, and with such other attributes that are essential for successful administrative leadership.

§ 6516. Commissioner in charge

The Commissioner is in full and active charge of the Department, and of its facilities and services and is the Chief Executive and Administrative Officer of the Department.

§ 6517. Duties and responsibilities of the Commissioner

(a) The Commissioner shall carry out and provide:

1. For promulgating rules and regulations to carry out his duties and operate the Department which shall not be inconsistent with the general policies of the Board.

2. For the organization, maintenance, control and operation of the Department.

3. For the custody, study, training, treatment, correction and rehabilitation of persons committed to the Department.

4. For regulating the nature and limitations of authorized punishments for violations of the rules established for the government of any institution or facility under the jurisdiction of the Department, but corporal punishment shall not be inflicted therefor; providing by general rule for a merit system for reduction of confinement.

5. For the administration, supervision, operation, management, and control of State correction institutions, farms, or any other institution or facility under the jurisdiction of the Department.

6. For the management and control of institutional labor and industry.

7. For the operation of probation and parole field services.

8. For the employment of such officers, employees and agents as may be deemed necessary to discharge the functions of the Department, together with establishing their qualifications, and the establishment of a merit system, and training programs.

0. For developing a suitable administrative structure providing for divisions, bureaus and services within the Department.

4. For governing the transportation and transfer of offenders and persons between the various institutions and facilities under its jurisdiction or elsewhere as provided in this Chapter, transfers to be made by issued orders, the reasons thereof to be made a matter of record, in each case. No female offender or person shall be transferred unless accompanied by at least one female officer or guard.

5. For managing and supervising the Department and doing any and all things necessary to carry out and to fulfill the purposes of this Chapter.

6. For periodic reports to the Board of an analysis of the institutions and services within the Department, and analysis

and evaluation of the adequacy and effectiveness of personnel and buildings.

Subchapter IV. Divisions of the Department

§ 6520. Establishment of Divisions

There shall be within the Department a Division of Field Services for probation and parole services, and a Division of Statistics, Research and Planning, and such other divisions and subdivisions including a Division of Institutions, with such personnel as the Commissioner shall deem desirable.

Subchapter V. Division of Field Services

§ 6521. Division of Field Services

(a) Director of Field Services

1. The Division of Field Services shall be administered by a Director appointed by the Commissioner. He shall be dismissed only for cause.

2. The Director shall be a person who shall possess a minimum of a bachelor's degree from an accredited college or university and possess an earned graduate degree from an accredited school of social work; have successful experience in probation and/or parole work; have demonstrated administrative ability; possess the sound character and other characteristics conducive to good staff and community relationships.

(b) District Directors

District Director within the Division of Field Services shall possess the minimum qualifications as the Director of the Service.

(c) Case Work Supervisors

Case work supervisors should possess the minimum educational qualifications of a District Director; have successful experience, with a demonstrated capability for movement toward supervisory position, through at least four years of successful case work practice.

(d) Field Counselors

Probation and Parole Counselors and Field Counselors should have at least a master's degree in an approved school of social work, with knowledge, training and experience as the Commissioner shall determine, except that when suitable persons with a master's degree are unobtainable, a minimum of an earned bachelor's degree in the social sciences and two years' training and/or experience in other aspects of social work may be deemed adequate.

(e) Assistant Field Counselors

Assistant Probation Officers, Assistant Parole Counselors and Assistant Field Counselors shall have completed at least sixty credits in an accredited college or university and/or at least five years' experience of demonstrated ability in the field of penal corrections or related experience. Such counselors shall meet the entrance requirements of an accredited college or university and be available to enroll in such courses as may be prescribed by the Department.

Such counselors as selected by the Department should have the ability to work under close supervision, have the ability to get along with people, personal integrity, good physical and mental health and not be prejudiced towards others because of race, religion, social and moral status.

Duties of such counselors shall be to assist probation, parole counselors, field counselors and any other duties that the Department may assign.

Subchapter VI. Diagnostic Services and Special Groups

§ 6523. Diagnostic services

There shall be within the Department a diagnostic service, consisting of one or more branches, to make social, medical, psychological and other appropriate studies and investigations of persons committed to its care. At the request of any sentencing court, the diagnostic service shall, to the extent possible, receive for study and report to the court, any person who has been convicted and is before the court for sentencing who is subject to commitment to the Department.

§ 6524. Special problem groups

The Department may establish facilities for the treatment of the following persons: alcoholics, prostitutes, drug addicts, and other such groups as the Department shall determine. The Department shall coordinate its work with any other State agency to reduce overlapping or duplication of functions and services.

§ 6525. Treatment of mentally ill and mentally defective inmates: transfer

The Department shall establish resources and programs for the treatment of mentally ill and defective persons, either in a separate facility or as part of other institutions or facilities of the Department. The Department shall coordinate its work with any other State agency to reduce overlapping or duplication of functions and services.

The Commissioner is empowered to transfer to other appropriate State institutions for care and treatment inmates who have been determined to be psychotic or mentally defective. Transfer may also be made to such facilities in other jurisdictions, or to municipal or private facilities upon the consent of responsible administrators of such facilities.

When in the judgment of the administrator of the institution to which an inmate has been transferred he has recovered from the condition which occasioned the transfer, the inmate shall be returned to the Department.

§ 6526. Separate program for youthful offenders; special facilities for witnesses and those awaiting trial

(a) Appropriate separate custodial care and work and training facilities shall be provided for youthful offenders by the Department.

(b) Such special facilities and services also shall be provided for witnesses detained for inability to give bail and those awaiting trial as the Department deems fit and necessary.

Subchapter VII. Classification and Employment

§ 6529. Organization of classification committees

The Department shall classify persons in the several institutions and facilities and shall promulgate regulations in accordance with which one or more classification committees shall be organized and operated.

§ 6530. Classification committee--information

Immediately after a person who is sentenced for 90 days or more is received at any institution under the jurisdiction of the Department, a classification committee shall obtain and file complete information with regard to such person. Similar records may be compiled on persons sentenced to less than 90 days, in accordance with rules and regulations of the Department. When all such existing available records have been assembled, each such classification committee shall determine whether or not any further investigation is necessary, and if so, it shall make such additional investigation. Each classification committee shall determine and prescribe the custodial and rehabilitation program and the care for each person coming under its jurisdiction. The classification committees shall determine the persons who shall work and labor and shall assign persons to jobs, studies and programs according to their abilities and in the manner best calculated to effectuate their training and rehabilitation. Review for reclassification shall occur periodically in accordance with the Department's regulations, or whenever the committee shall deem it advisable.

§ 6531. Treatment programs; classification

Persons committed to the institutional care of the Department shall be dealt with humanely, with effort directed to their rehabilitation, to effect their return to the community as safely and promptly as practicable. The Commissioner shall establish the following programs, and may establish others: education, including vocational training; work; case work counseling and psychotherapy; library and religious services; commissary; and shall institute procedures for the study of classification of inmates for these purposes. Subject to the limitations of existing structures, rooms for the housing of inmates shall have adequate privacy, light, and sanitary facilities, and personal needs, including facilities for visits by relatives and friends shall be provided at a normal level.

§ 6532. Work by inmates

The Department shall provide opportunities for employment, work experiences and training by all inmates. To the maximum extent possible, these work experiences shall approximate normal conditions of employment in free agriculture and industry, in equipment, management practices, and general procedures. The products of inmate labor and inmate services may be sold to tax-supported departments and institutions and agencies of the State and its governmental subdivisions, and such other employers as the Department shall determine.

Inmates shall be compensated, at rates fixed by the Department for work performed, including institutional maintenance. If adequate for such purpose, the inmate should be encouraged and when approved by the Commissioner, required to support his dependents who may be receiving public assistance during the period of commitment.

The Department may make contractual arrangements for the use of inmate labor by other tax-supported units of government responsible for the conservation of natural resources or other public works.

§ 6533. Outside employment; escape of employed inmate

(a) The Department may adopt rules and regulations governing the employment of trustworthy inmates outside the institutions and facilities under the jurisdiction of the Department.

(b) Any inmate employed under the provisions of subsection (a) of this section shall continue to be in the legal custody of the Department, notwithstanding his absence from an institution by reason of such employment, and any employer of any such person shall be considered the representative of, or keeper for the Department.

(c) Whoever, being an employer or other person, through negligent control of the inmate or otherwise or whoever counsels, advises, aids, assists, abets or procures the escape from the legal control of the Department of any inmate employed under this subchapter shall be fined, or imprisoned, or both.

§ 6534. Payment of compensation

(a) The compensation earned by a person shall be paid to him in whole or in part or in installments as determined by the Department, at the time of his release, except, that the Department may from time to time, in its discretion, or upon the order of a court of competent jurisdiction, pay all or part thereof to any person actually dependent on the offender and the Department may from time to time allow from such compensation an amount to an offender for spending money.

(b) A husband or parent sentenced to imprisonment for desertion or failure to support a wife or child, shall receive for his work compensation, and the same shall be disbursed as provided by Chapter 5 of Title 13.

Subchapter VIII. Discipline, Medical Care and Discharge

§ 6535. Discipline

The Department shall promulgate rules and regulations for the maintenance of good order and discipline in the facilities and institutions of the Department, including procedures for dealing with violations. A copy of such rules shall be provided to each inmate. There shall be a record of charges of infractions by inmates, any punishments imposed, and of medical inspections made.

§ 6536. Medical care

The Department shall promulgate standards for and shall establish health, medical and dental services for each institution including preventive, diagnostic and therapeutic measures on both an out-patient and hospital basis for all types of patients.

The Department may authorize under regulations inmates to be taken, with or without guard, to a medical institution or facility outside the institution.

§ 6537. Inmate contacts with persons outside the institution

The Department shall authorize under reasonable conditions visits to and correspondence with inmates by relatives, friends, and others; and temporary releases of such inmates for such occasions as the death of a member of the inmate's family, or interview of inmates by a prospective employer.

§ 6538. Furloughs

The Department shall promulgate regulations under which inmates, as part of a program looking to their release from the custody of the Department or their treatment may be granted temporary furloughs from the institution to visit their families or prospective employers.

§ 6539. Discharge allowance; loans

Persons discharged upon completion of their term or released on parole or mandatory conditional release may be supplied in accordance with the Department's rules and regulations within budget requirements, with satisfactory clothing, and transportation to the point of destination within the State. If the inmate's family is financially able, or if the inmate has resources, these shall be used prior to the use of public funds.

Subchapter IX. General Provisions

§ 6550. Seal--authentication

The Department shall adopt a seal. Copies of all records and papers in the offices of the Department, certified by an authorized agent of the Department and authenticated by the seal, shall be evidence with like effect as the original.

§ 6551. Cooperation with other Departments and Agencies

The Department shall cooperate with the Courts and with public and private agencies and offices to assist it in attaining its purposes. The Department may enter into agreements with other Departments of Federal, State and municipal government for the employment of persons committed to the charge of the Department.

§ 6552. Discharge of employees

All discharges shall be for cause and in accordance with regulations and procedures established by the Department. Upon request in writing, any discharged employee shall be given a hearing before the Board.

§ 6553. Compensation of employees

Compensation of employees shall be as fixed by the Commissioner.

§ 6554. Bonds of officers and employees

The Board may require the Commissioner, and any officer or employee of the Department to execute a surety bond with corporate surety to be approved and in such amount as required by the Board, with the condition that he shall faithfully perform the duties of his office, and account for all funds received through his position as Commissioner. The premium for such bond shall be paid from funds of the Department.

§ 6555. Facilities, equipment and supplies

The Department shall acquire by lease, purchase or otherwise, all necessary facilities, equipment, supplies or articles for the carrying out of its duties in the safekeeping, maintenance, improvement and rehabilitation of those in its care.

§ 6556. Offices and quarters

The Department shall secure offices and quarters sufficient for its needs and furnish the same.

§ 6557. Lands and buildings

The Department may acquire by lease, purchase or otherwise, and hold in the name of the State of Delaware for the use of the Department, all necessary lands and buildings for the carrying out of its duties and functions.

§ 6558. Contracts, limitations for interest

No officer or employee of the Department may be directly or indirectly concerned or interested in any contract, purchase or sale made by the Department or by its authority, or may accept any reward or gift, or any promise of any reward or gift, directly or indirectly from any person interested in any contract, purchase or sale made by the Department, or its authority, and every officer and employee shall make report to the said Department of all such offenses coming to his knowledge; nor shall any member of the Board, or anyone in the family of a member, hold any other office or position in the Department.

§ 6559. Annual Report

The Commissioner and Board shall make a report every year on or before November 15 to the Governor, showing the financial operation of the Department for the preceding year, together with adequate statistical information concerning the persons committed to the Department, or under the supervision of the Department, or under the supervision of the Department's field service, with such research reports, analysis, planning, evaluations and recommendations as may appear necessary to the advancement of the interest of the Department and its objectives. A copy of said report shall be sent to each member of the General Assembly and shall be made available to other agencies and citizens, as desired.

§ 6560. Police powers of correctional officers and employees; limitations

All correctional officers and employees of the Department shall have the full power of a State police officer while on duty:

1. At one of the correctional institutions, or

2. In charge of prisoners at any place within the State and while going to or returning from such duty, or

3. Searching for escaped prisoners; provided, however, that only those correctional officers and employees who have been sworn in by the Commissioner shall have the power of a police officer hereunder. The Board shall provide appropriate identification for all such correctional officers and employees.

§ 6561. Furnishing contraband; penalty

Whoever furnishes to any person committed to the jurisdiction of the Department:

1. Any intoxicating liquor or narcotic drug of any kind except as prescribed by a physician for medical treatment, or

2. Any money without the knowledge and consent of the Department, or

3. Any deadly weapon or part thereof or any instrument or article which may be used to effect an escape, shall be punished by fine or imprisonment, or both.

§ 6562. Incarceration upon arrest by private detective

All persons arrested by private detectives or private detective agencies on State, county or municipal warrants, or in any other manner, shall be incarcerated only in the custody of the Department or in a place provided by the State, county or municipality for the incarceration of persons.

§ 6563. Violation of Section 6562 of this Title

Whoever, being a private detective, violates the provisions of Section 6562 of this chapter shall be fined not less than $100 nor more than $500, or in default of the payment of such fine, imprisoned not less than six months nor more than one year.

Section 2. All employees of the State Board of Corrections at the time this Act becomes effective shall continue and be deemed to be employees of the Department of Correction. Said employees and said persons who shall become employees of the Department under Section 3 hereunder, shall receive full credit for the time employed by the State Board of Corrections or Court or governmental agency, in computing the number of years of service required to receive pension benefits within the meaning of the State Employee's Pension Plan or any State pension plan adopted in lieu thereof. Nothing herein contained shall be construed to alter the pension status or to grant pensions to any employees who are not in the employ of the Department on or before one year from the date this Act becomes effective. No employee of the Department shall be entitled to the pension benefits provided herein until he has completed one year as an employee of the Department or the State Board of Corrections or Court or governmental agency immediately prior thereto and has met all the other requirements of the State Employee's Pension Plan or any State pension plan adopted in lieu thereof.

Section 3. All probation and parole officers and other employees engaged directly in probation work for the Municipal Court and parole work for the Parole Board shall become and be deemed to be employees of the Department one year from the date this Act becomes effective; provided, however, the Commissioner by order may accelerate this date. Upon the said probation and parole officers and other employees becoming employees of the Department, all statutes pertaining to the method of their appointment and the method of payment of their compensation shall be repealed; provided further, however, that any agency paying said compensation to said employees shall continue to pay the same until an appropriation has been made to the Department assuming such payment.

Section 4. The sum of One Hundred Thirty-four Thousand, Five Hundred Fifteen Dollars ($134,515) is hereby appropriated to the Department of Correction to be expended as follows during the fiscal year ending June 30, 1965:

Salaries and Wages $98,300

Office Expense 15,000

Travel 11,000

Operations

1,100

Repairs and Replacements

1,200

Equipment

7,915

 

$134,515

Section 5. The sum appropriated in Section 4 is a supplementary appropriation and the money appropriated is to be paid by the State Treasurer out of the General Fund of the State of Delaware.

Section 6. Any funds herein appropriated not expended by June 30, 1965, will revert to the General Fund.

Section 7. Title 11, Delaware Code, is completely revised, recodified and amended by substituting for Chapter 43 pertaining to probation, Chapter 77 pertaining to parole and Chapter 79 pertaining to pardons, a new Chapter 43 as follows:

CHAPTER 43. SENTENCING, PROBATION, PAROLE

AND PARDONS

Subchapter I. Purposes, Construction and Definitions

§ 4301. Purposes and construction

This Chapter shall be construed to the end that the treatment of persons convicted of crime shall take into consideration their individual characteristics, circumstances, needs and potentialities, as revealed by a case study, and that whenever it appears desirable in the light of the needs of public safety and their own welfare, such person shall be dealt with, at restricted liberty in the community, by a uniformly organized system of constructive rehabilitation, under probation or parole supervision instead of in a correctional institution.

§ 4302. Definitions

As used in this Chapter:

"BOARD" means the Board of the Department of Correction.

"BOARD OF PARDONS" means that Board as established by the Constitution and laws.

"CONDITIONAL RELEASE" means the release of an offender from incarceration to the community by reason of diminution of the period of confinement through merit and good behavior credits. A person so released shall be known as a Releasee.

"COURT" means Superior Court, Court of Common Pleas, and Municipal Court of the City of Wilmington.

"DEPARTMENT" means the Department of Correction.

"COMMISSIONER" means the Commissioner of the Department.

"LAW" means the laws of this State, including any ordinance of any subdivision or municipality.

"JUDGE" means any Judge of any Court as herein defined.

"OFFENDER" means any person who has been brought within the jurisdiction of the Superior Court, Courts of Common Pleas and the Municipal Court of the City of Wilmington, or within the scope of duties of the Board of Parole or the Board of Pardons.

"PAROLE" means the release by the Parole Board of an offender from incarceration to the community prior to the expiration of his term, subject to the supervision and guidance of the Department. A person placed upon parole shall be known as a Parolee.

"PAROLE BOARD" means the duly established Board of Parole as the paroling authority of the State.

"PRESENTENCE INVESTIGATION" means the procedure by which the Court subsequent to conviction but prior to sentencing, obtains information concerning the offender sufficient to evaluate his conduct and to determine his potentialities for rehabilitation, with appropriate recommendations for judicial disposition. Said presentence investigation shall be embodied in a written report.

"PROBATION" means the sentencing without imprisonment, of an offender by judgment of the Court following establishment of guilt, subject to the conditions imposed by the Court, including the supervision and guidance of the Department's Field Services. A person placed upon probation or under suspended sentence under supervision shall be known as a Probationer.

"PROBATION AND PAROLE COUNSELLOR" means an employee of the Department with qualifications and having powers and responsibilities pertaining to investigation, supervision and otherwise provided by law or determined by the Department within the scope of this Chapter.

"MERIT AND GOOD BEHAVIOR CREDITS" means that diminution of the period of confinement, as provided by law, by reason of industrious and cooperative conduct.

Subchapter II. Probation and Parole Services

§ 4321. Probation and Parole Counselors

The Department and its Probation and Parole Counselors shall conduct such presentence and pre-parole investigations or perform such other duties under this Chapter as may be ordered by the Court, Parole Board or Department; provided, however, that all presentence investigations and reports for the Superior Court, the Court of Common Pleas for Kent County, and the Court of Common Pleas for Sussex County, shall be prepared as provided in Section 4336, Title 11, Delaware Code, herein enacted. The Department shall furnish to each person released under the supervision of the Department a written statement of the conditions of his probation or parole and shall instruct him regarding these conditions. The Counselors, under the supervision of the Department, shall prepare an evaluation and plan of treatment aimed at alleviation of those conditions which brought about the criminal behavior of each of his charges, and shall attempt in each case to effect a satisfactory adjustment between the individual and his needs and the demands of society. The Counselors shall keep informed of the conduct and condition of persons in their charge, shall aid them to secure employment, shall exercise supervision over them, and see that they fulfill the conditions of their release, and shall use all suitable methods to aid and encourage them to bring about improvement in their conduct and conditions and to meet their probation or parole obligations. The Counselors shall keep detailed records of their work; shall supervise the collection and dispersal of all monies in accordance with the orders of the Court and Department; and shall make such reports in writing and perform such other duties which the rules and regulations of the Department require or which the Court, the Board of Parole or the Commissioner may require. Probation and Parole Counselors shall have all the powers of a constable under the laws of this State.

§ 4322. Protection of records

The presentence report (other than a presentence report prepared for the Superior Court, the Court of Common Pleas for Kent County, or the Court of Common Pleas for Sussex County), the pre-parole report, the supervision history, and all other case records obtained in the discharge of official duty by any member or employee of the department shall be privileged and shall not be disclosed directly or indirectly to anyone other than the Courts as herein defined, and the Family Court, the Board of Parole, the Board of Pardons, the Attorney General's Office, or others entitled by this Chapter to receive such information; except that the Court may, in its discretion, permit the inspection of the report or parts thereof by the offender or his attorney or other persons who in the judgment of the Court have a proper interest therein, whenever the best interest of the State or welfare of a particular defendant or person makes such action desirable or helpful. No person committed to the Department shall have access to any of said records. The pre-sentence reports prepared for the Superior Court, the Court of Common Pleas for Kent County, and the Court of Common Pleas for Sussex County, shall be under the control of those Courts respectively as heretofore.

Subchapter III. Probation and Sentencing Procedures

§ 4331. Presentence investigation

No offender shall be sentenced to six months or more, with probation, suspension, commitment or otherwise, or fined, where commitment in lieu thereof would be six months or more, before a written report of presentence investigation is presented to and considered by the Court. The Court may, in its discretion, order a presentence investigation for an offender convicted of any crime.

Whenever an investigation by the Department is ordered by the Court, the Department should inquire promptly into such things as the circumstances of the offense; the motivation of the offender; the criminal record, social history, behavior pattern and present condition of the offender. The report of the presentence investigation should include an evaluation of the offender's criminal conduct, and should note where in the judicial alternatives of the Court may play a role in the rehabilitation of the offender as a law-abiding citizen. All local and State agencies shall make available to the Department such records as the Department may request. The investigation should include physical and mental examination of the offender, when, in the opinion of the Court it is desirable. As soon as practicable or as ordered by the Court, the presentence report shall be forwarded to the sentencing Judge of the Court in each case.

The Department may conduct any additional investigations or perform any other case services in the community, with the preparation of appropriate reports, as may be desirable to facilitate an institutional treatment program aimed at rehabilitation of the offender.

§ 4332. Sentence and modification

The Court may, after conviction or after a plea of guilty or nolo contendere for any crime or offense not capital:

(1) Impose a fine as provided by law for the offense;

(2) Impose a fine and place the offender upon probation;

(3) Commit the offender to the Department, with or without a fine, or with any other punishment, as provided by law for the offense;

(4) Suspend the imposition or execution of sentence;

(5) Place the offender upon probation;

(6) Impose a period of imprisonment and place the offender upon probation to commence when he is released from prison.

Notwithstanding anything herein to the contrary, probation or a suspended sentence shall not be substituted for imprisonment where the statute specifically indicates that a prison sentence is mandatory or may not be suspended.

On imposing a fine the Court may authorize its payment in installments. In adjudging an offender to probation the Court shall direct that he be under the supervision of the Department, with the Court order specifying those conditions under which the offender may remain at liberty on probation.

In committing an offender to the Department the Court shall fix the maximum term of incarceration.

Where modification of judgment is not provided by Rule of Court, the Court may modify a judgment within 90 days after it is ordered. Dispositions other than commitment to the Department, and such commitments which are revoked shall not entail the loss by the offender of any civil rights, except as provided in the State Constitution.

The Court may direct that one placed on probation be released on his entering into a recognizance, with or without surety, and during such period as the Court directs, that he appear and receive sentence when called upon, and in the meantime that he keep the peace and be of good behavior.

The Court may, if it thinks proper, direct that the offender pay the costs of the prosecution or such portion of it as is directed by the Court and may further impose such terms and conditions to be complied with by the offender during such period as it deems proper.

At any time within the period mentioned in the recognizance, but not afterwards, the Court may, upon being satisfied by information on oath that the offender has failed to observe any of the conditions of his recognizance, or any of the terms or conditions of his probation, issue process for his apprehension and thereupon, without any further proceedings, impose sentence upon him.

If such offender fully complies with all of the terms and conditions of his recognizance and with all terms and conditions of his probation during the entire period prescribed by the Court, the plea or verdict of guilty entered by or recorded against such offender shall be stricken from the records of the Court.

§ 4333. Conditions of probation or suspension of sentence

The Department may adopt standards concerning the conditions of probation or suspension of sentence which the Court may use in a given case. The standard conditions shall apply in the absence of any other specific or inconsistent conditions imposed by the Court. The presentence report may recommend conditions to be imposed by the Court. However, nothing herein contained shall limit the authority of the Court to impose or modify any general or specific conditions of probations or suspension of sentence. The Department may recommend, and by order duly entered, the Court may impose and may at any time order modification of any conditions of probation or suspension of sentence. Before any such conditions are modified, a report by the Department shall be presented to and considered by the Court. The Court shall cause a copy of any such order to be delivered to the Department and to the Probationer.

§ 4334. Period of probation or suspension of sentence; Termination

The period of probation or suspension of sentence shall be fixed by the Court, but in no event shall the total period of probation or suspension of sentence exceed the maximum term of commitment provided by law for the offense or one year, whichever is greater; provided, that in all cases where no commitment is provided by law, the period of probation or suspension of sentence may not be more than one year. Probation or suspension of sentence may be terminated by the Court at any time and upon such termination or upon termination by expiration of the term, an order to this effect shall be entered by the Court.

§ 4335. Arrest for violation of conditions; subsequent disposition

The Court may issue a warrant for the arrest of a probationer for violation of any of the conditions of probation or suspension of sentence, or a notice to appear to answer to a charge of violation. Such notice shall be personally served upon the probationer. The warrant shall authorize officers to return the probationer to the custody of the Court or to the Department.

The Commissioner or any Probation Counselor, when in his judgment there has been a violation of any condition of probation or suspension of sentence, may arrest such probationer without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the Commissioner or Probation Counselor, violated the conditions of his probation or suspended sentence. The written statement delivered with the probationer by the arresting officer to the official in charge of the place of detention shall be sufficient warrant for the detention of the probationer. When an arrest is made by a Probation Counselor, the Department shall present to the detaining authority a written statement of the circumstances of violation. Provisions regarding release on bail of persons charged with crime shall be applicable to the probationers arrested under these provisions.

Upon such arrest and detention, the Department shall immediately notify the Court and shall submit in writing a report showing in what manner the probationer has violated the conditions of probation or suspension of sentence. Thereupon, or upon arrest by warrant as herein provided, the Court shall cause the probationer to be brought before it without unnecessary delay, for a hearing on the violation charge. The hearing may be informal or summary. If the violation is established, the Court may continue or revoke the probation or suspension of sentence, and may require the probation violater to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

A probationer for whose return a warrant cannot be served, shall be deemed a fugitive from justice or to have fled from justice. If it shall appear that he has violated the provisions of his probation or suspended sentence, the Court shall determine whether the time from issuing of the warrant to the date of his arrest, or any part of it, shall be counted as time served on probation or suspended sentence.

§ 4336. Presentence investigation; Superior Court, Courts of Common Pleas in Kent and Sussex Counties; Presentence officers

(a) Presentence Officers and Assistants

1. The Superior Court may appoint a suitable person in each of the counties of the State to conduct such presentence investigations and to perform such other duties, within or without the county of his residence, as the Court may direct. Each person so appointed shall reside in the county for which he shall be appointed and shall hold office at the pleasure of the Superior Court. Each of such persons shall be the chief presentence officer and shall be an officer of the Court, and shall receive as compensation an annual salary to be fixed by the Court.

2. The Superior Court may also appoint not more than three assistant presentence officers in New Castle County and one assistant presentence officer in Kent County and one assistant Presentence officer in Sussex County who shall have the same powers and perform the same duties as the chief pre-sentence officers. The Court may also appoint one or more office stenographers in each of the counties for the proper functioning of presentence investigation and reporting. The salaries of any such assistant presentence officers and office stenographers shall from time to time be fixed by the Court, and they shall hold office at the pleasure of the Court. They shall perform the duties prescribed by law or by order of the Court.

3. In case of absence or disqualification of any presentence officer or assistant presentence officer the Superior Court may appoint a presentence officer pro tempore who shall receive as compensation for each day's service a sum equal to the per diem compensation of the salary of the presentence officer as prorated. The compensation so paid for any excess over 30 days' absence of any presentence officer or assistant presentence officer in any one year shall be deducted from the salary of such presentence officer or assistant presentence officer.

(b) Badges

Each presentence officer and assistant presentence officer shall be provided by the Levy Court of the respective counties with a badge of office upon which shall be inscribed the words, "Officer, Superior Court, Delaware".

(c) Compensation

The chief presentence officer and the assistant presentence officer shall be officers of the Superior Court. The Court shall certify to the respective Levy Courts and to the respective County Treasurers the names and addresses of the several persons appointed to the offices and positions authorized by this section, the several dates of their appointments, and the compensation to be paid them, and their salaries shall be paid in the same manner as the salaries of other county officers are paid.

(d) Investigations for the Superior Court

Each presentence officer and each assistant presentence officer shall make such presentence investigation for the Superior Court as it shall direct, including an inquiry into such things as the circumstance of the offense, the motivation of the offender, the criminal record, social history, behavior pattern, and present condition of the offender. The report thereof shall be in such form and cover such subjects as the Superior Court shall direct.

(e) Investigation for the Court of Common Pleas for Kent County

Each presentence officer and each assistant presentence officer appointed in Kent County as aforesaid shall also with the approval of the Superior Court make such like presentence investigations for the Court of Common Pleas for Kent County as said Court shall order. The report thereof shall be in such form and cover such subjects as that Court shall direct.

(f) Investigations for the Court of Common Pleas for Sussex County

Each presentence officer and each assistant presentence officer appointed in Sussex County as aforesaid shall also with the approval of the Superior Court make such like presentence investigations for the Court of Common Pleas for Sussex County as said Court shall order. The report thereof shall be in such form and cover such subjects as that Court shall direct.

Subchapter IV. Parole

§ 4341. Parole Board; selection, appointment and removal

(a) The Board of Parole is continued, with the present members, to serve until the expiration of the terms of office for which they were appointed.

(b) The term of office for each subsequent appointment shall be for three years. The Governor shall annually appoint one person of demonstrated interest in correctional treatment or social welfare to the Board to succeed a member whose term has expired. A vacancy shall be filled by the Governor within 60 days, the person to serve the balance of the unexpired term. A member shall hold office until a successor has been appointed and qualified.

(c) The Governor may remove a member of the Board only for disability, inefficiency, neglect of duty or malfeasance in office. Before such removal the Governor shall give the member a written copy of the charges against him and shall fix the time when he can be heard in his defense, which shall not be less than ten days thereafter. Upon removal, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against the member and the findings thereupon, with a report of all the proceedings.

§ 4342. Organization

(a) The Board shall annually elect a Chairman from its members. It shall appoint a Secretary.

(b) The Board shall adopt an official seal of which the Courts shall take judicial notice.

(c) Suitable and adequate quarters shall be obtained by the Board.

§ 4343. Duties

The Board shall:

(1) Be the paroling authority for the State.

(2) Establish rules and regulations for the conduct of its own proceedings, and rules of procedure for the effective enforcement of the provisions of this chapter. Copies of said rules and regulations shall be published and may be obtained upon request.

(3) Determine the salary of any employee within the total appropriation in addition to proper expenses.

(4) Meet at least once a month, for the transaction of business, and a sufficient other number of times as shall be necessary adequately to perform its duties under this Chapter.

(5) Keep a record of its acts and notify each applicant for parole, and the Department of its decisions.

(6) Advise with the Department in the formulation and establishment of policies and procedures, fully to carry out the objectives of parole and correctional treatment in the best interests of the public.

(7) Cooperate with the Department in preparing the annual report of the Board to be submitted to the Governor and make available and submit to the Department all statistical and other data of its work and compilation and analysis of dispositions as it shall require. The Board may make a separate statement or include such statement in the report of the Department to the Governor.

§ 4344. Compensation and expenses

(a) Each member of the Board shall receive $20 per day as compensation for services when attending a meeting of the Board, not to exceed 36 meetings each year.

() In addition, each member shall receive necessary expenses including mileage, incurred in attending such meetings, and performing his duties.

§ 4345. Review prior to parole

Within one year after his confinement has begun and at such intervals thereafter as the Board may determine, or when requested by the Department, the Board shall consider all pertinent information regarding each person who might thereafter become eligible for parole, including the presentence report, progress reports submitted by the Department, and reports of such physical and mental examinations as have been made, to determine what progress is being made in preparing the person for release. In all cases where the sentence is five years or less, the Board shall review each case at least once every year; in all cases where the sentence is more than five but ten years or less, the Board shall review each case at least once every two years; and in all cases where the sentence is more than ten years or where the prisoner is sentenced for life, the Board shall review each case at least once every three years.

§ 4346. Eligibility for parole

(a) A person confined to any correctional facility administered by the Department may be released on parole by the Board if he has served one-third of the term imposed by the Court, such term to be reduced by such merit and good behavior credits as have been earned, or 120 days, whichever is greater. For the purpose of this subchapter, "Court" shall include any Court committing an offender to the Department.

(b) Consistent with law, the Board, upon written recommendation of the Court which imposed the sentence, or the Department, may reduce the minimum term of eligibility when the Board is satisfied that the best interest of the public and the welfare of the person will be served by such reduction. Such reduction in the minimum term of eligibility for parole shall be by order of the Board stating the specific date when said person shall become eligible for parole; but such reduction of the minimum term of eligibility for parole shall have no effect on the maximum limits of the sentence. The order of reduction by the Board shall be made in open hearing.

(c) 1. The authority of the Board shall include those persons whose maximum terms have been commuted by the Governor.

2. For all purposes of this section, a person sentenced to imprisonment for life shall be considered as having been sentenced to a fixed term of 45 years.

(d) Consistent with law, the Board may adopt such other rules as it deems proper or necessary with respect to the eligibility of persons for parole, the conduct of parole hearings or conditions to be imposed upon parolees.

(e) Whenever the physical or mental condition of any person confined in any institution demands treatment which the Department cannot furnish, the Department may, if such action seems necessary for the well-being of such person, recommend that the case be considered by the Board of Parole at a regular or special meeting. When such case is so considered, the Board of Parole, if satisfied that removal from the institution is necessary for the well-being of such person, may order the release of such person on parole without regard to the time already served by such person. The Board of Parole shall parole in such case only when arrangements have been made for the treatment of the person in some institution. The Board of Parole may impose any conditions of parole in such case, may revoke such parole without hearing at any time and for any cause, and order the return of the person to the Department.

§ 4347. Parole authority and procedure

(a) A parole may be granted when in the opinion of the Board there is reasonable probability that the person can be released without detriment to the community or to himself, and where in the Board's opinion parole supervision would be in the best interest of society and an aid to rehabilitation of the offender as a law-abiding citizen. A parole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered a reduction of sentence or a pardon. A person shall be placed on parole only when the Board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.

(b) Within one month prior to the time an offender is scheduled for a parole hearing, the Department shall submit a progress report with parole recommendations to the Parole Board, and the Department shall submit a carefully evaluated parole plan with recommendations.

(c) Before ordering the parole of any person, the Board shall have the person appear before it and shall interview him.

(d) All paroles shall issue upon order of the Board duly adopted. Said order shall recite the conditions thereof, which may be altered as the Board may determine, and a copy shall be provided to the parolee and the Department.

(e) Every person while on parole shall remain in the legal custody of the Department but shall be subject to the orders of the Board of Parole.

(f) Where civil rights would otherwise be forfeited, they shall be forfeited only during any period of incarceration.

(g) The period served on parole or conditional release shall be deemed service of the term of imprisonment, and subject to the provisions contained in Section 4352 herein relating to a person who is a fugitive from or has fled from justice, the total time served may not exceed the maximum term or sentence. When a person on parole or conditional release has performed the obligations of his release for such time as shall satisfy the Board that his final release is not incompatible with the best interest of society and the welfare of the individual, the Board may make a final order of discharge and issue a certificate of discharge to the person; but no such order of discharge shall be made in any case within a period of less than one year after the date of release except where the sentence expires earlier thereto. Such discharge, and the discharge of a person who has served his term of imprisonment, shall have the effect of restoring all civil rights lost by operation of law upon commitment, and the certification of discharge shall so state. Except when discharged herein a person on parole or conditional release shall be on parole until the expiration of the maximum term for which he is sentenced.

§ 4348. Release upon merit and good behavior credits

A person having served his term or terms in incarceration, less such merit and good behavior credits as have been earned, shall, upon release, be deemed as released on parole until the expiration of the maximum term or terms for which he is sentenced. A person may waive his right to conditional release, in which case he shall serve the remainder of his term or terms in prison. Such waiver shall be in writing. Only persons who have been committed for one year or more shall be deemed to be released on parole; provided, the Department by general rule may lower said period of time.

§ 4349. Information from the Department and others

It shall be the duty of the Department to grant to the Board or its representatives, access to any person over whom the Board has jurisdiction under this Chapter, to provide facilities for communicating with and observing such person, and make available to the Board such reports as the Board shall require concerning the conduct and character of any person in the custody of the Department, the institutional plan of treatment for such person or any other facts deemed by the Board pertinent in determining whether the person shall be paroled. It shall be the duty of the Department to furnish to the Board such reports as the Board shall require concerning casework performed in the community with relatives or others connected with the person, investigations of parole plans, or other reports or facts deemed by the Board pertinent in determining whether or not the person shall be paroled. All police upon request shall furnish the Board with any information at their disposal in regard to any person to be considered for parole.

§ 4350. Conduct of hearings on applications for parole

The Board, when hearing applications for parole, shall not be required to hear oral statements or arguments by persons not connected with the Department. The Department shall be entitled to appear personally before the Board and to advise it and be heard with respect to any application for parole being considered. All persons presenting information or arguments to the Board shall submit their statements in writing or otherwise, as the Board may desire. Such hearings may be private.

§ 4351. Witnesses; production of records

The Board shall have power to issue subpoenas requiring the attendance of such witnesses and the production of such records, books, papers and documents necessary for investigation of the case of any person before it. Subpoenas may be signed and oaths administered by any member of the Board. Subpoenas so issued may be served by Department employees or by any person authorized to serve subpoenas by the Rules of Civil Procedure of the Superior Court and shall be served and returned as provided by said Rules. The fees of witnesses shall be the same as allowed in the Superior Court and shall be paid by the State Treasurer from any monies in the Treasury of the State not otherwise appropriated, upon a warrant signed by a member of the Board and its Secretary. Any person who testifies falsely or fails to appear when subpoenaed, or refuses to produce such material pursuant to the subpoena, shall be subject to the same orders and penalties to which a person before said Court is subject. Any Superior Court, upon application of the Board, may in its discretion compel the attendance of witnesses, the production of such material, and the giving of testimony before the Board, by an attachment for contempt or otherwise in the same manner as production of evidence may be compelled before such Superior Court.

§ 4352. Return of violator of parole or conditional release; procedure and action on violation

At any time during release on parole or conditional release under parole the Board or any member thereof may issue a warrant for the arrest of a released person for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. Such notice shall be served personally upon the person. The warrant shall authorize any officer authorized to serve process in this State to return the person to the actual custody of the correctional facility from which he was released, or to any other suitable detention facility designated by the Board or Department. When in the judgment of the Commissioner or of any Probation and Parole Counselor, there has been a violation of the conditions of release, he may arrest such parolee or releasee without a warrant, or he may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the parolee or releasee has, in the judgment of the Commissioner or Probation and Parole Counselor, violated the conditions of his release. The written statement delivered with the person by the arresting officers to the official in charge of the facility to which the person is brought for detention shall be sufficient warrant for detaining him.

After making an arrest the Department shall present to the detaining authorities a statement of the circumstances of violation. Pending hearing, as hereinafter provided, upon any charge of violation, the person shall remain incarcerated in the institution.

Upon such arrest and detention, the Department shall immediately notify the Board and shall submit a report showing in what manner the person had violated the conditions of release. The Board shall cause the person to be brought promptly before it for a hearing on the violation charge, under such rules and regulations as the Board may adopt.

If the violation is established by the hearing, the Board may continue or revoke the parole or conditional release, or enter such other order as it may see fit.

A person for whose return a warrant has been issued by the Board shall, if it is found that the warrant cannot be served, be deemed to be a fugitive from justice or to have fled from justice.

If it shall appear that he has violated the provisions of his release, the Board shall determine whether the time from the issuing of the warrant to the date of his arrest, or any part of it, shall be counted as time under the sentence.

Any person who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve the unexpired portion of the term under which he was released concurrently with any new sentence for the new offense.

Subchapter V. Uniform Law for Out-of-State Parolees'

Supervision

§ 4358. Terms of the compact between the states

The Governor of this State shall execute a compact on behalf of the State of Delaware with any of the United States legally joining therein in the form substantially as follows:

A COMPACT

Entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an Act entitled "An Act Granting the Consent of Congress to any two or more States to enter into Agreements or Compacts for Cooperative Effort and Mutual Assistance in the Prevention of Crime and for other purposes". The contracting states solemnly agree:

(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact, (herein called "sending state"), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact, (herein called "receiving state"), while on probation or parole, if

(a) Such a person is in fact a resident of or has his family residing within the receiving state and can obtain employment there;

(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.

Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.

A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one year prior to his coming to the sending state and has not resided within the sending state more than six continuous months immediately preceding the commission of the offense for which he has been convicted.

(2) That each receiving state will assume the duties of visitation of and supervision over probationers and parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.

(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are expressly waived on the part of states party hereto, as such person. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state; provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharge from prosecution or from imprisonment for such offense.

(4) The duly accredited officers of the sending state will be permitted to transport persons being retaken through any and all states parties to this compact, without interference.

(5) That the Governor of each state may designate an officer who acting jointly with like officers of other contracting states, if and when appointed, shall promulgate such rules and regulations as may be deemed necessary to more effectively carry out the terms of this compact.

(6) That this compact shall become operative immediately upon its execution by any state as between it and any other state or states so executing. When executed it shall have the full force and effect of law within such state, the form of execution to be in accordance with the laws of the executing state.

(0) That this compact shall continue in force and remain binding upon each executing state until renounced by it. The duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until retaken or finally discharged by the sending state. Renunciation of this compact shall be by the same authority which executed it, by sending six months' notice in writing of its intention to withdraw from the compact to the other states party hereto.

§ Short title

Subchapter VI. Clemency

§ 4361. Compelling attendance of witnesses before Board of Pardons

The Board of Pardons as constituted by Article VII of the Constitution of the State of Delaware shall have power to issue subpoenas requiring the attendance of such witnesses and the production of such records, books, papers and documents necessary for investigation of the case of any person before it. Subpoenas may be signed and oaths administered by any member of the Board. Subpoenas so issued may be served by Department employees or by any person authorized to serve subpoenas by the Rules of Civil Procedure of the Superior Court and shall be served and returned as provided by said Rules. The fees of witnesses shall be the same as allowed in the Superior Court and shall be paid by the State Treasurer from any monies in the Treasury of the State not otherwise appropriated, upon a warrant signed by a member of the Board and its Secretary. Any person who testifies falsely or fails to appear when subpoened, or refuses to produce such material pursuant to the subpoena, shall be subject to the same orders and penalties to which a person before said Court is subject. Any Superior Court, upon application of the Board, may in its discretion compel the attendance of witnesses, the production of such material, and the giving of testimony before the Board, by an attachment for contempt or otherwise in the same manner as production of evidence may be compelled before such Superior Court.

Upon the request of the Board of Pardons, the Department, to the extent authorized by the Commissioner, shall make investigations and recommendations and report thereon with respect to any application before the Board of Pardons.

Subchapter VII. Diminuation of Confinement

§ 4371. When diminuation given

A person committed to the Department may merit diminution of his confinement by his behavior, fidelity and compliance with the rules.

§ 4372. Rate of reduction of confinement

When a person has not been guilty of any violation of discipline, or any rules of the Department and has labored with diligence and fidelity:

(1) for each month commencing on the first day of his arrival at the facility he shall be allowed a reduction of five days from the period of his sentence;

(2) when a person has passed one year of his sentence, less the reduction of his sentence as provided in paragraph (1) of this section then from that time he shall be allowed a reduction of seven days for each month from his sentence;

(3) when a person has passed two years of his sentence, less the reduction of his sentence as provided in paragraphs (1) and (2) of this section, then from that time he shall be allowed a reduction of nine days for each month from his sentence;

(4) when a person has passed three or more years of his sentence less the reduction of his sentence as provided in paragraphs (1-3) of this section, then from that time he shall be allowed a reduction of ten days for each month from his sentence.

§ 4373. Forfeiture and restoration of granted time

For violation of the rules and discipline, or for want of diligence and fidelity in his actions, the Department may deduct a portion or all of a person's previously allowed time and may subsequently restore any such deductions if the conduct of the person so warrants. The Department's actions shall be in accordance with rules and regulations and shall be subject to approval of the Commissioner.

Section 8. The provisions of this Act are hereby extended to all persons who, at the effective date hereof, may be on probation or parole, with the same force and effect as if this Act had been in operation at the time they were placed on probation or parole, or persons eligible to be placed on probation or parole under any provisions of this Act.

Section 9. All presentence reports and probation and parole services to be rendered by the Department as provided by this Act in Section 4321 and thereafter, shall continue to be rendered as heretofore and by the personnel appointed by the Superior Court and all the referrals for such reports and services by the Courts and Board of Parole shall continue as heretofore; provided, that such referrals and services shall after the expiration of one year from the date this Act becomes effective be as provided in this Act; and further provided, that the Commissioner by order from time to time may provide for the acceleration of the transfer of said services and referrals as provided in this Act to the Department, to the end that the transfer of services shall be coordinated with the hiring of Department personnel and the taking over of such services by the Department.

Section 10. All other Acts and parts of Acts inconsistent with the provisions of this Act are hereby repealed.

Section 11. If any part of this Act shall be held to be unconstitutional such holding shall not affect any other part.

Approved July 8, 1964.

NOTE: In the codification for the Delaware Code, § 6525 was codified as § 6525 (a)-(c); § 6532 was codified as § 6532 (a)-(c); § 6560 was codified as § 6560 (a) and (b), § 4331 was codified as § 4331 (a) and (b); § 4332 was codified as § 4332 (a)-(e); § 4335 was codified as § 4335 (a)-(d); § 4352 was codified as § 4352 (a)-(g); and § 4361 was codified as § 4361 (a)-(d).