Question and Answers for Place of Confinement and Capacity

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​Place of Confinement

1. What is the effective date of the Title 42 Amendments?
November 24, 2011 (sentences ordered or modified on or after effective date).

2. What are the special circumstances that permit offenders sentenced to a maximum of 2 years or more but less than 5 years to be committed to a county jail?
i. the chief administrator/designee of the county prison certifies that the county jail is available for the commitment of such offenders (but such certification may be issued only if the county prison population is less than 110% of its rated capacity);
ii.  the attorney for the Commonwealth has consented to the confinement of    the offenders in the county jail; and
iii. the sentencing court has approved the confinement of the offender in the county jail.

3. What county official is considered to be the “chief administrator” of the county jail?
The county prison warden or the highest ranking jail administrator is considered the “chief administrator” of the county jail.

4. How does the chief administrator certify that the jail’s capacity is below 110%?
A written document (form) indicating the jail’s rated capacity and population will be sent on regular intervals to the president judge of the court, the district attorney and the chief public defender.

5. Must the chief administrator certify that the county jail is available for the commitment of such offenders if the jail’s population is less that 110% of its rated capacity?
No, it is at the chief administrator’s discretion

6. How does the chief administrator revoke the certification if the capacity exceeds 110%?
A written document indicating the jail’s rated capacity and population will be sent on regular intervals to the president judge of the court, the district attorney and the chief public defender.

7. Can the county make an exception to this place of confinement requirement if the jail’s population exceeds 110%?
No

8. For the purpose of certification, who is considered to be the “Attorney of the Commonwealth?”
The district attorney for the county is considered the “Attorney for the Commonwealth.”

9. Who calculates the county’s “rated capacity?”
The chief administrator calculates the rated capacity.

10. How is the jail’s “rated capacity” calculated?
The statute does not specify a calculation method, but the “Place of Confinement Working Group” is recommending a formula of sixty five percent (65%) of the total number of beds (including beds in work release, pre-release, and community reentry centers) minus: temporary beds and those reserved solely for the County Intermediate Punishment (CIP).

Formula: Total beds - temporary beds - CIP beds x .65 = rated capacity

This formula was developed after a lengthy discussion and review of the various local and national models used for calculating a jail’s capacity; specific consideration was then given to the operational concerns of large, medium, and small jails. The result is a calculation that addresses all of the issues to a remarkable degree of adequacy.

11. What is the time limitation for changing the place of confinement?
The sentences or terms of incarceration are the entire continuous term of incarceration that an offender is, or was, subject to - this includes the maximum periods (potential periods) of incarceration for one or more current sentences, originally imposed sentences when there is a violation of probation or intermediate punishment, originally imposed sentences upon recommitment for violations of parole, and any other manner of sentence. So, the date of the last sentence imposed or the date of recommitment, whichever is later, shall determine the place of incarceration.  A court may not modify a sentence more than 30 days after it is imposed.

12. Are 5-B transfers from the county to the Commonwealth impacted by this Act?
No. A 5-B transfer is a mechanism that counties can use to temporarily transfer an offender from the county jail/prison to the Department of Corrections.  The request to transfer the offender must be based upon a special circumstance(s) such as the county facility being overcrowded or when the offender has problematic needs such as a psychiatric evaluation that can not be adequately addressed by the county. (See attached form DC-5B Petition for Transfer: County Prisons)

13. What is the estimated number of offenders annually sentenced to a maximum of 2 years or more but less than 5 years?
Based on criminal incidents reported during 2010 to the PA Commission on Sentencing, a total of 5,069 sentences included a maximum term of two years or greater but less than five years; of these, 3,904 were committed to a state correctional institute, and 900 were committed to county correctional facilities. The remaining 255 sentences were state intermediate punishment (SIP).

14. Does this Act impact the courts’ authority to order county intermediate punishment?
No

15. How are consecutive terms of sentences aggregated for determining place of confinement?
The maximum sentence for determining place of confinement is calculated by adding the maximum of all periods of incarceration to which the offender is, or was subject to.  This includes the maximum periods (potential periods) of incarceration for one or more current sentences, originally imposed sentences when there is a violation of probation or intermediate punishment, originally imposed sentences upon recommitment for violations of parole, and any other manner of sentence.

16. What was the effective date for the provision for aggregating sentences for determining place of confinement?
The aggregation provision included in Act 81 (42 Pa.C.S.§9762(f)) took effect November 24, 2008.  This provision was intended to make clear that aggregation of any consecutive term of imprisonment, regardless of its form, must be aggregated for determining place of confinement.  This applies to all active sentences, including sentences for which the offender is presently incarcerated and sentences for which the offender has been paroled. 

Related provisions make clear that the last date of imposition of sentence or recommitment is controlling for determining the applicable place-of-confinement (42 Pa.C.S.A. § 9762(g)), and judges can change the place-of-confinement and transfer previously sentenced prisoners to the state system (42 Pa.C.S.A. § 9762(h)).

This new provision is consistent with earlier decisions by Pennsylvania appellate courts that provided for automatic aggregation of consecutive sentences for purposes of determining paroling authority: 

Consecutive sentences are automatically aggregated, even if imposed by different judges, even if imposed by different courts, and even if imposed at different times. Where the total aggregate sentence carries a maximum of two years or more, exclusive parole authority lies with the Pennsylvania Board of Probation and Parole. Com. v. Miller, 770 A.2d 362, Pa.Super. 2001.

17. Are offenders previously sentenced to a maximum term of 2 years or more but less than 5 years affected by this act?
Yes.  If the previous sentence remains active (i.e., offender is serving a sentence through confinement or parole), any action that would bring the offender before a court on or after November 24, 2011(e.g., imposition of a new sentence, revocation of a sentence or parole from county place of confinement) would be subject to the provisions of 42 Pa.C.S.§9762, permitting the judge to change place of confinement.

18. Are DUI sentences affected by this act?
No. DUI sentences are governed by the specific provisions of the Motor Vehicle Code.  See: 75 Pa.C.S. §3804(d) (relating to penalties; extended supervision of court) and 75 Pa.C.S. §3815(a) (relating to mandatory sentencing; county supervision).

Work Release Reimbursement

1. What is the effective date of the Title 42 Amendments?
November 24, 2011 (sentences ordered or modified on or after effective date).

2. Which offenders on approved work release qualify for the county reimbursement?
The PA Commission on Sentencing promulgates PA’s Sentencing Guidelines. Offenders are classified into different levels based upon the gravity of the current conviction offense and the number and seriousness of previous adjudications and convictions. Offenders who were identified as Level 4 or 5 offenders in the Basic Sentencing Matrix and are actually participating in a work release program are counted in determining a county’s reimbursement. Sentencing level assignment is included on each Guideline Sentence Form and available through the Commission's JNET-based application (SGS Web).

3.   Must the offender be employed?
Yes. To best meet the intent of the Act, the DOC has decided the Level 4 and 5 offenders must have employment outside of the jail to qualify the county for reimbursement. Offenders only employed by the jail (trusties) do not qualify for reimbursement.

4. How will the DOC verify that the offender(s) is employed?
The DOC may request copies of the offender’s pay records.

5. How much money will the DOC have available to reimburse the counties?
$2.5 million for FY 2011 – 2012

6. Can the amount of available funds be increased?
Yes, but only if approved by the General Assembly and the Governor

7. What is the DOC’s per-diem cost to be reimbursed to the counties?
$65.00 (2011). Each July (after the Commonwealth’s budget has been passed) the annual per-diem amount appropriated will be published in the PA Bulletin.

8. What happens if the number of approved work release offenders exceeds the appropriated funds?
The appropriated funds will be distributed pro rata. A particular county’s percentage will be determined by the following formula.  The total number of Level 4 and 5 offender days participating in work release statewide divided by the total number of Level 4 and 5 offender days participating in work release equals the county’s appropriated funds.

9. How and when does the county notify the DOC of offenders qualified for county reimbursement?
Counties will report (via a standard PA DOC form) to the DOC’s Office of Population Management by February 28 the offender(s) name, SID#, and days employed for the prior calendar year. Random audits of submissions will be made each year by the DOC.

10. How and when will the DOC reimburse the counties?
The DOC will make payment to the county within 90 days after the submission deadline date.