Code of Virginia

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Code of Virginia
Title 53.1. Prisons and Other Methods of Correction
Chapter 2. State Correctional Facilities
12/3/2022

Article 2. Treatment and Privileges of Prisoners.

§ 53.1-32. Treatment and control of prisoners; recreation; religious services.

A. It shall be the general purpose of the state correctional facilities to provide proper employment, training and education in accordance with this title, medical and mental health care and treatment, discipline and control of prisoners committed or transferred thereto. The health service program established to provide medical services to prisoners shall provide for appropriate means by which prisoners receiving nonemergency medical services may pay fees based upon a portion of the cost of such services. In no event shall any prisoner be denied medically necessary service due to his inability to pay.

B. The Department of Corrections shall establish and maintain a treatment program for prisoners convicted pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 and committed to its custody. The program shall include a clinical assessment of all such prisoners upon receipt into the custody of the Department of Corrections and the development of appropriate treatment plans, if indicated. A licensed psychiatrist or licensed clinical psychologist who is experienced in the diagnosis, treatment, and risk assessment of sex offenders shall oversee the program and the program shall be administered by a licensed psychiatrist, licensed clinical psychologist, or a licensed mental health professional who is a certified sex offender treatment provider as defined in § 54.1-3600.

C. The Director shall provide a program of recreation for prisoners. The Director may establish, with consultation from the Department of Behavioral Health and Developmental Services, a comprehensive substance abuse treatment program which may include utilization of acupuncture and other treatment modalities, and may make such program available to any prisoner requiring the services provided by the program.

D. The Director or his designee who shall be a state employee is authorized to make arrangements for religious services for prisoners at times as he may deem appropriate. When such arrangements are made pursuant to a contract or memorandum of understanding, the final authority for such arrangements shall reside with the Director or his designee.

Code 1950, §§ 53-33, 53-94; 1970, c. 648; 1982, c. 636; 1992, c. 740; 1993, c. 768; 1995, cc. 766, 821; 1998, c. 798; 2009, cc. 740, 813, 840; 2010, c. 261; 2012, cc. 803, 835; 2020, c. 759.

§ 53.1-32.01. Payment for bodily injury.

The Director is authorized to establish administrative procedures for recovering from an inmate the cost for medical treatment of a bodily injury that is inflicted intentionally on any person by the inmate. Such administrative procedures shall ensure that the inmate is afforded due process.

1997, c. 125; 2020, c. 759.

§ 53.1-32.1. Classification system; program assignments; mandatory participation.

A. The Director shall maintain a system of classification which (i) evaluates all prisoners according to background, aptitude, education, and risk and (ii) based on an assessment of needs, determines appropriate program assignments including career and technical education, work activities and employment, academic activities which at a minimum meet the requirements of § 66-13.1, counseling, alcohol and substance abuse treatment, and such related activities as may be necessary to assist prisoners in the successful transition to free society and gainful employment.

B. The Director shall, subject to the availability of resources and sufficient program assignments, place prisoners in appropriate full-time program assignments or a combination thereof to satisfy the objectives of a treatment plan based on an assessment and evaluation of each prisoner's needs. Compliance with specified program requirements and attainment of specific treatment goals shall be required as a condition of placement and continuation in such program assignments. The Director may suspend programs in the event of an institutional emergency.

C. For the purposes of implementing the requirements of subsection B, prisoners shall be required to participate in such programs according to the following schedule:

1. From July 1, 1994, through June 30, 1995, an average of 24 hours per week.

2. From July 1, 1995, through June 30, 1996, an average of 28 hours per week.

3. From July 1, 1996, through June 30, 1997, an average of 30 hours per week.

4. From July 1, 1997, through June 30, 1998, an average of 36 hours per week.

5. From July 1, 1998, and thereafter, an average of 40 hours per week.

D. Notwithstanding any other provision of law, prisoners refusing to accept a program assignment shall not be eligible for good conduct allowances or earned sentence credits authorized pursuant to Chapter 6 (§ 53.1-186 et seq.) of Title 53.1. Such refusal shall also constitute a violation of the rules authorized pursuant to § 53.1-25 and the Director shall prescribe appropriate disciplinary action.

E. The Director shall maintain a master program listing, by facility and program location, of all available permanent and temporary positions. The Director may, consistent with § 53.1-43, establish a system of pay incentives for such assignments based upon difficulty and level of effort required.

F. Inmates employed pursuant to Article 2 (§ 53.1-32 et seq.) of Chapter 2 of this title shall not be deemed employees of the Commonwealth of Virginia or its agencies and shall be ineligible for benefits under Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2, Chapter 6 (§ 60.2-600 et seq.) of Title 60.2, Chapter 5 (§ 65.2-500 et seq.) of Title 65.2 or any other provisions of the Code pertaining to the rights of state employees.

1993, c. 768; 1994, 2nd Sp. Sess., cc. 1, 2; 2001, c. 483; 2012, cc. 803, 835; 2020, c. 759.

§ 53.1-32.2. Reentry planning.

The Department shall develop and implement, in cooperation with and taking into account the individual needs and willingness to participate of the inmate, a comprehensive reentry plan for each person committed to the supervision of the Department, as soon as practicable, considering the prisoner's anticipated release date. Such plan shall identify educational, vocational, therapeutic, and other programs necessary to prepare the person for successful transition from prison to society upon the person's discharge and shall include mentor pairing to the extent possible. The Department shall coordinate any reentry programs provided through the Department pursuant to the reentry plan with any other reentry or other relevant programs offered by any public or private organization or entity at the local, state, or federal level, which are also included in the plan.

2008, cc. 177, 402.

§ 53.1-33. Physical examination of prisoner; ability to work.

Each person received by the Department shall be examined by a licensed physician upon his arrival, within 30 days prior to any work assignment in food services, medical services, or cosmetological services or a change in work assignment, and at such other times thereafter as may be deemed necessary. The work that a prisoner is required to do shall be dependent upon the report of the physician as to his physical and mental capacity.

The warden, in consultation with the physician, may exclude prisoners, on a case-by-case basis, from work assignments based upon the classification of the institution and the safety and good order of the institution. Special consideration should be used in assigning any inmate with an infectious disease to assignments in food services, medical services, and cosmetological services.

Code 1950, § 53-47; 1970, c. 630; 1979, c. 700; 1982, c. 636; 2007, c. 591.

§ 53.1-33.1. Mandatory testing for human immunodeficiency virus.

The Department shall offer to test each inmate, who does not have a record of a positive test result, for infection with human immunodeficiency virus within 60 days of the scheduled discharge of the inmate from a state correctional facility. Prior to administering a test for human immunodeficiency virus, the Department shall inform, or cause to be informed, the inmate to be tested of the purpose of the test. Any inmate may choose not to be tested.

2011, cc. 398, 415.

§ 53.1-34. Treatment of prisoner with contagious disease.

The Director may, upon the application of the person in charge of any state correctional facility who has been requested in writing so to do by the physician at such facility, have removed from such facility any prisoner therein who has contracted any contagious or infectious disease dangerous to the public health to some place to be designated by the Director. When any prisoner is so removed, he shall be safely kept and treated for such disease and, as soon as he recovers his health, be returned to such facility unless the term of his imprisonment has expired, in which event he shall be discharged, but not until all danger of his spreading contagion has passed. Expenses incurred by reason of this section shall be borne by the Commonwealth.

Code 1950, § 53-94; 1970, c. 648; 1979, c. 109; 1982, c. 636.

§ 53.1-35. Correspondence privileges; receipt of publications.

The Director is authorized to prescribe reasonable rules regarding correspondence privileges and the receipt of books, newspapers and periodicals by prisoners within state correctional facilities.

Code 1950, § 53-34; 1970, c. 648; 1982, c. 636.

§ 53.1-35.1. Electronic visitation and messaging with inmates; fees.

The Director is authorized to prescribe reasonable rules regarding electronic visitation systems or electronic messaging systems, including Voice-over-Internet Protocol technology and web-based communication systems, for communication between prisoners and third parties and collection of a fee for the system utilized. Any state correctional facility that utilizes such systems shall establish such system allowing for the security needs of the facility. Any state correctional facility that utilizes such system shall not prohibit in-person visitation.

This section does not apply to telephonic communication systems or to electronic video and audio communication systems used in judicial proceedings.

2018, c. 66.

§ 53.1-35.2. Visitation of certain prisoners by minor dependents.

A. The Director is authorized to prescribe reasonable rules regarding visitation that shall include authorization of visitation by minor dependents of prisoners who are primary caretakers of minor children with Level 1 or Level 2 security classifications that include (i) opportunities for dependent children under the age of 18 to visit their incarcerated primary caretakers at least twice per week unless an employee of the Department has a reasonable belief that the child (a) may be harmed during visitation or (b) poses a security risk due to a gang affiliation, prior conviction, or past violation of a correctional facility's contraband policy; (ii) the elimination of restrictions on the number of dependent children under the age of 18 that may be permitted visitation privileges; and (iii) authorization for contact visits for prisoners who are primary caretakers of minor children.

B. Nothing in this section shall prevent the Department from refusing visitation of a minor child based on an individualized determination by the Director, warden, or superintendent that such visitation presents security or operational risks.

2020, c. 526.

§ 53.1-36. Prisoners may assist in medical research programs.

Subject to the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1, the Director may permit such prisoners as may volunteer to undergo experimental treatment or tests in state or federal medical research programs.

Code 1950, § 53-57.1; 1962, c. 48; 1982, c. 636; 1992, c. 603.

§ 53.1-37. Furloughs generally; travel expenses; penalties for violations.

A. The Director may extend the limits of confinement of any prisoner in any state correctional facility to permit him a furlough under the provisions of this section for the purpose of visiting his home or family. Such furlough shall be for a period to be prescribed by the Director or his designee, in his discretion, not to exceed three days in addition to authorized travel time. Except for furloughs permitted under subsection C, the time during which a prisoner is on furlough shall not be counted as time served against any sentence, and during any furlough, no earned sentence credits as defined in § 53.1-116, good conduct allowance, or any other reduction of sentence shall accrue. The Director shall promulgate rules and regulations governing extension of limits of confinement hereunder.

B. The Director may, when feasible, require the prisoner or his relatives to bear the travel expense required for such visit or a prescribed portion thereof. Such travel expense shall include all amounts necessarily expended for travel, food and lodging of such prisoner and any accompanying personnel of the Department during such furlough, and a per diem amount set by the Director to reimburse the Department for furnishing custodial personnel.

C. The Director may permit a prisoner a furlough when the prisoner has been approved for release on parole by the Parole Board and 30 days or less remain to be served by the prisoner prior to his date of release on parole. Such a furlough shall not exceed 30 days.

D. Any prisoner who willfully fails to remain within the limits of confinement set by the Director hereunder, or who willfully fails to return within the time prescribed to the place designated by the Director in granting such extension, shall be guilty of an escape and shall be subject to penalty as though he left the state correctional facility itself.

E. Any prisoner who without authority or just cause fails to remain within the limits of confinement set by the Director hereunder, or who without authority or just cause fails to return within the time prescribed to the place designated by the Director in granting such extension, shall be guilty of a Class 2 misdemeanor.

F. Fifteen days prior to a prisoner's participation in the furlough program, the Director shall give the chief of police, sheriff or local chief law-enforcement official of the locality in which the prisoner will stay, notice of the prisoner's participation. Such notice shall include the name, address and criminal history, and any additional information the chief of police or such officer may request. The transmission of information shall be confidential and not subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

Code 1950, § 53-37.1; 1972, c. 59; 1973, c. 234; 1976, c. 476; 1982, c. 636; 1989, c. 652; 2003, c. 846; 2020, c. 759.

§ 53.1-38. When ineligible for furloughs.

Any prisoner who is convicted of a felony included within the provisions of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 or arson, burglary or robbery committed while on administrative furlough, shall, after conviction therefor, be ineligible for further furlough during the remainder of the sentence or sentences imposed upon him prior to furlough.

Code 1950, § 53-37.2; 1976, c. 210; 1982, c. 636.

§ 53.1-39. Certain punishment of prisoners prohibited.

Notwithstanding any provision of this Code or of any other law, rule, or regulation to the contrary, it shall be unlawful for the Director, the Board, or any other correctional authority having the care, custody, or control of any prisoner in this Commonwealth to make or enforce any rule or regulation providing for the whipping, flogging, or administration of any similar corporal punishment of any prisoner, or to give any specific order for or to cause to be administered or personally to administer or inflict any such corporal punishment.

Code 1950, § 53-55; 1982, c. 636; 2020, c. 759.

§ 53.1-39.1. Restrictive housing; data collection and reporting; report.

A. As used in this section:

"Offender" means an adult or juvenile who is confined in a state correctional facility.

"Restrictive housing" means special-purpose bed assignments operated under maximum security regulations and procedures, and utilized under proper administrative process, for the personal protection or custodial management of offenders. The Department of Corrections' restrictive housing shall, at a minimum, adhere to the standards adopted by the American Correctional Association, the accrediting body for the corrections industry.

"Shared Allied Management Unit" or "SAM Unit" means a general population environment used to promote safety within institutions by avoiding the use of restrictive housing to manage vulnerable populations that typically require a high level of services from security, mental health, or medical staff.

"Vulnerable population" means offenders who are at a greater risk of victimization or being bullied in the general population due to characteristics such as cognitive challenge, age (seniors and youthful), small stature, or timid personalities.

B. The Department shall report to the General Assembly and the Governor on or before October 1 of each year the following information for the Department, in the aggregate for the previous fiscal year:

1. The average daily population;

2. The number of offenders who were placed in and the number of offenders who were released from restrictive housing;

3. The age, sex, race, ethnicity, mental health code, medical class code, security level, and custody level classification of each offender housed in restrictive housing or a SAM Unit;

4. The disciplinary offense history preceding placement in restrictive housing or a SAM Unit;

5. The number of days each offender spent in restrictive housing;

6. The number of offenders released from restrictive housing directly into the community;

7. The number of full-time mental health staff; and

8. Any changes made during the reporting period to written policies or procedures of the Department and each state correctional facility relating to the use and conditions of restrictive housing and SAM Units.

C. The Department shall submit the annual report to the Governor, the Chairmen of the House Committee on Public Safety and the Senate Committee on Rehabilitation and Social Services, and the Clerks of the House of Delegates and the Senate as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports, and the annual report shall be posted on the General Assembly's website. The Department shall publish the report on the Department's website following its submission to the Governor, the Chairmen of the House Committee on Public Safety and the Senate Committee on Rehabilitation and Social Services, and the Clerks of the House of Delegates and the Senate.

2019, cc. 453, 516.

§ 53.1-40. Appointment of counsel for indigent prisoners.

The judge of a circuit court in whose county or city a state correctional facility is located shall, on motion of the attorney for the Commonwealth for such county or city, when he is requested so to do by the superintendent or warden of a state correctional facility, appoint, for a period of no less than thirty days nor more than one year, one or more discreet and competent attorneys-at-law to counsel and assist indigent prisoners therein confined regarding any legal matter relating to their incarceration.

An attorney so appointed shall be paid as directed by the court from the criminal fund reasonable compensation on an hourly basis and necessary expenses based upon monthly reports to be furnished the court by him.

Code 1950, § 53-21.2; 1972, c. 773; 1979, c. 700; 1982, c. 636; 1997, c. 207.

§ 53.1-40.01. Conditional release of geriatric prisoners.

Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this section.

1994, 2nd Sp. Sess., cc. 1, 2; 2001, cc. 446, 487.

§ 53.1-40.02. Conditional release of terminally ill prisoners.

A. As used in this section, "terminally ill" means having a chronic or progressive medical condition caused by injury, disease, or illness where the medical prognosis is the person's death within 12 months.

B. Any person serving a sentence imposed upon a conviction for a felony offense, except as provided in subsection C, who is terminally ill may petition the Parole Board for conditional release.

C. A person who is terminally ill and is serving a sentence imposed upon a conviction for one of the following offenses shall not be eligible to petition the Parole Board for conditional release:

1. A Class 1 felony;

2. Any violation of § 18.2-32, 18.2-32.1, 18.2-32.2, or 18.2-33;

3. Any violation of § 18.2-40 or 18.2-45;

4. Any violation of § 18.2-46.5, subsection A or B of § 18.2-46.6, or § 18.2-46.7;

5. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.) of Chapter 4 of Title 18.2, except for a violation of § 18.2-49.1;

6. Any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2, any violation of § 18.2-51.7, 18.2-54.1, or 18.2-54.2, or any felony violation of § 18.2-57.2;

7. Any felony violation of § 18.2-60.3;

8. Any felony violation of § 16.1-253.2 or 18.2-60.4;

9. Robbery under § 18.2-58 or carjacking under § 18.2-58.1;

10. Criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, except, when not committed against a minor, a violation of subdivision A 5 of § 18.2-67.3, § 18.2-67.4:1, subsection B of § 18.2-67.5, or § 18.2-67.5:1;

11. Any violation of § 18.2-90 or 18.2-93;

12. Any violation of § 18.2-289 or subsection A of § 18.2-300;

13. Any felony offense in Article 3 (§ 18.2-346 et seq.) of Chapter 8 of Title 18.2 involving a minor victim;

14. Any felony offense in Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2 involving a minor victim, except for a violation of § 18.2-362 or 18.2-370.5 or subsection B of § 18.2-371.1;

15. Any felony offense in Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2 involving a minor victim, except for a violation of subsection A of § 18.2-374.1:1;

16. Any violation of § 18.2-481, 40.1-100.2, or 40.1-103; or

17. A second or subsequent felony violation of the following offenses when such offenses were not part of a common act, transaction, or scheme and such person has been at liberty as defined in § 53.1-151 between each conviction:

a. Voluntary or involuntary manslaughter under Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2 or any crime punishable as such;

b. Any violation of § 18.2-41 or 18.2-42.1;

c. Any violation of subsection C of § 18.2-46.6;

d. Any violation when done unlawfully but not maliciously of § 18.2-51 or 18.2-51.1;

e. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79;

f. Any violation of § 18.2-89 with the intent to commit any larceny or § 18.2-92;

g. Any violation of subsection A of § 18.2-374.1:1;

h. Any violation of § 18.2-423, 18.2-423.01, 18.2-423.1, 18.2-423.2, or 18.2-433.2; or

i. Any violation of subdivision E 2 of § 40.1-29.

D. The Parole Board shall promulgate regulations to implement the provisions of this section.

2020, Sp. Sess. I, cc. 33, 52.