HB 349: "An Act providing for the civil commitment of sexually violent predators."
00HOUSE BILL NO. 349 01 "An Act providing for the civil commitment of sexually violent predators." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 47.30 is amended by adding new sections to read: 04 ARTICLE 8A. COMMITMENT OF SEXUALLY VIOLENT PREDATORS. 05 Sec. 47.30.816. FINDINGS. The legislature finds that a small but extremely 06 dangerous group of sexually violent predators exist who do not have a mental disease 07 or defect that renders them appropriate for the existing involuntary treatment 08 procedure, AS 47.30.700 - 47.30.815, which is intended to be a short-term civil 09 commitment system primarily designed to provide short-term treatment to individuals 10 with serious mental disorders and then return them to the community. In contrast to 11 persons appropriate for civil commitment under AS 47.30.700 - 47.30.815, sexually 12 violent predators generally have antisocial personality features that are not amenable 13 to existing mental illness treatment methods, and those features render them likely to 14 engage in sexually violent behavior. The legislature further finds that sex offenders'
01 likelihood of engaging in repeat acts of predatory sexual violence is high. The existing 02 involuntary treatment procedure, AS 47.30.700 - 47.30.815, is inadequate to address 03 the risk to reoffend because during confinement these offenders do not have access to 04 potential victims and, therefore, will not engage in specific overt acts evidencing their 05 risk of harm to others during confinement as required by the involuntary treatment 06 procedure for continued confinement. The legislature further finds that the prognosis 07 for curing sexually violent offenders is poor, the treatment needs of this population are 08 very long term, and the treatment methods for this population are very different than 09 the traditional treatment methods for people appropriate for commitment under the 10 involuntary treatment procedures. 11 Sec. 47.30.817. NOTICE TO ATTORNEY GENERAL PRIOR TO RELEASE. 12 (a) When it appears that a person may meet the criteria for a sexually violent predator, 13 the agency with jurisdiction shall give written notice to the attorney general, three 14 months before the 15 (1) anticipated release from total confinement of a person who has been 16 convicted of a sexually violent offense; 17 (2) anticipated release from total confinement of a person found to have 18 committed a sexually violent offense as a juvenile; 19 (3) release of a person who has been charged with a sexually violent 20 offense and who has been determined to be incompetent to stand trial under 21 AS 12.47.100; or 22 (4) release of a person who has been found not guilty by reason of 23 insanity of a sexually violent offense under AS 12.47.040. 24 (b) The written notice must contain the following: 25 (1) the person's name, identifying factors, anticipated future residence, 26 and offense history; and 27 (2) documentation of institutional adjustment and treatment received. 28 (c) In this section, "agency with jurisdiction" means the department with the 29 authority to direct the release of a person serving a sentence or term or period of 30 confinement. 31 Sec. 47.30.818. SEXUALLY VIOLENT PREDATOR PETITION; FILING;
01 JUDICIAL DETERMINATION; EVALUATION. (a) The attorney general may file 02 a petition in the superior court alleging that a person is a sexually violent predator and 03 stating sufficient facts to support the allegation when it appears that the person may 04 be a sexually violent predator and it appears that 05 (1) the term of total confinement of a person who has been convicted 06 of a sexually violent offense is about to expire or has expired; 07 (2) the term of total confinement of a person found to have committed 08 a sexually violent offense as a juvenile is about to expire or has expired; 09 (3) a person who has been charged with a sexually violent offense and 10 who has been determined to be incompetent to stand trial is about to be released or has 11 been released; or 12 (4) a person who has been found not guilty by reason of insanity of a 13 sexually violent offense is about to be released or has been released. 14 (b) Upon the filing of a petition, the judge shall determine whether probable 15 cause exists to believe that the person named in the petition is a sexually violent 16 predator. If probable cause is found, the judge shall direct that the person be taken 17 into custody and the person shall be transferred to an appropriate facility for an 18 evaluation as to whether the person is a sexually violent predator. The evaluation shall 19 be conducted by a person professionally qualified to conduct the examination under 20 regulations adopted by the department. In adopting the regulations under this 21 subsection, the department shall consult with the Department of Corrections. The 22 results of the examination conducted under this section are admissible in all further 23 proceedings conducted under AS 47.30.816 - 47.30.824. 24 Sec. 47.30.819. TRIAL; RIGHTS OF PARTIES; DETERMINATION; 25 COMMITMENT PROCEDURES. (a) Within 45 days after the filing of a petition 26 under AS 47.30.818, the court shall conduct a trial to determine whether the person 27 is a sexually violent predator. At all stages of the proceedings under AS 47.30.816 - 28 47.30.824, a person who is the subject of a petition filed under AS 47.30.818 is 29 entitled to the assistance of counsel and, if the person is indigent, the court shall 30 appoint the office of public advocacy to assist the person. When a person is subjected 31 to an examination under AS 47.30.818, the person may retain experts or professionals
01 to perform an examination on the person's behalf. When the person wishes to be 02 examined by a qualified expert or professional of the person's choice, the examiner 03 shall be permitted reasonable access to the person for the purpose of an examination, 04 as well as to all relevant medical and psychological records and reports. If the person 05 is indigent, the court shall, upon the person's request, assist the person in obtaining an 06 expert or professional to perform an examination or participate in the trial on the 07 person's behalf. Upon motion of the person or the attorney general, or on the court's 08 own motion, the trial shall be before a jury. If no motion is made, the trial shall be 09 before the court. 10 (b) The court or jury shall determine, beyond a reasonable doubt, whether the 11 person is a sexually violent predator. If the state alleges in the petition a prior 12 sexually violent offense for which a finding of sexual motivation is necessary to 13 classify the offense as a sexually violent offense, the state shall prove beyond a 14 reasonable doubt that the alleged sexually violent act was sexually motivated. Upon 15 a determination that the person is a sexually violent predator, the person shall be 16 committed to the custody of the department for control, care, and treatment until the 17 person's mental abnormality or personality disorder has so changed that the person is 18 safe to be at large. If the court or jury is not satisfied beyond a reasonable doubt that 19 the person is a sexually violent predator, the court shall direct the person's release 20 from the custody of the department. 21 (c) If the person charged with a sexually violent offense has been found 22 incompetent to stand trial, is about to or has been released, and the person's 23 commitment is sought under this section, the court shall first hear evidence and 24 determine whether the person committed the act or acts charged. The hearing on this 25 issue must comply with the procedures specified in this section. In addition, the rules 26 of evidence applicable in criminal trials and all constitutional rights available to 27 defendants at criminal trials, other than the right to a jury trial and right not to be tried 28 while incompetent, shall apply. After hearing evidence under this subsection, the court 29 shall make specific findings on whether the person committed the act or acts charged, 30 the extent to which the person's incompetence affected the outcome of the hearing, 31 including its effect on the person's ability to consult with and assist counsel and to
01 testify on the person's own behalf, the extent to which the evidence could be 02 reconstructed without the assistance of the person, and the strength of the state's case. 03 If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable 04 doubt, that the person committed the act or acts charged, it shall enter an order, 05 appealable by the person, on that issue and may proceed to consider whether the 06 person should be committed under this section. A finding under this subsection that 07 the person committed the act or acts charged is not a conviction or a finding of guilt 08 for any purpose other than for consideration of commitment. 09 (d) The department shall confine a person committed under AS 47.30.816 - 10 47.30.824 in a secure mental health facility operated by the department. The 11 department may not confine a person committed under AS 47.30.816 - 47.30.824 in 12 a correctional facility or institution operated by the Department of Corrections. This 13 subsection does not prohibit the department from confining a person committed under 14 AS 47.30.816 - 47.30.824 in a mental health facility operated by the department and 15 located within or on the grounds of a correctional facility. The involuntary detention 16 or commitment of a person under AS 47.30.816 - 47.30.824 shall conform to the 17 constitutional requirements for care and treatment. 18 Sec. 47.30.820. ANNUAL EXAMINATIONS. The department shall provide 19 an examination of the current mental condition of a person committed under 20 AS 47.30.816 - 47.30.824 at least once each year. In addition to the annual 21 examination provided by the department, the person may retain or, if the person is 22 indigent and so requests, the court may appoint a qualified expert or a professional to 23 examine the person, and the expert or professional shall have access to all records 24 concerning the person. The results of the examinations shall be provided to the court 25 that committed the person. 26 Sec. 47.30.821. PETITION FOR RELEASE. (a) If the commissioner 27 determines that the person's mental abnormality or personality disorder has so changed 28 that the person is safe to be at large and is not likely to commit a sexually violent 29 predatory offense if released, the commissioner shall authorize the person to petition 30 the court for release. The petition shall be served upon the attorney general as the 31 attorney for the state. The court, upon receipt of the petition for release, shall order
01 a hearing within 45 days. The state has the right to have the petitioner examined by 02 an expert or professional person of their choice. The hearing shall be before a jury if 03 demanded by either the petitioner or the state. The burden of proof is upon the state 04 to show beyond a reasonable doubt that the petitioner's mental abnormality or 05 personality disorder remains such that the petitioner is not safe to be at large and that, 06 if discharged, is likely to commit a sexually violent predatory offense. 07 (b) This section does not prohibit the person from otherwise petitioning the 08 court for discharge without the commissioner's approval. The commissioner shall 09 provide the committed person with an annual written notice of the person's right to 10 petition the court for release over the commissioner's objection. The notice must 11 contain a waiver of rights. The commissioner shall forward the notice and waiver form 12 to the court with the annual examination. If the person does not affirmatively waive 13 the right to petition, the court shall hold a show cause hearing to determine whether 14 facts exist that warrant a hearing on whether the person's condition has so changed 15 that the person is safe to be at large and is not likely to commit a sexually violent 16 predatory offense if discharged. The committed person has the right to have an 17 attorney represent the person at the show cause hearing and if the person is indigent, 18 the court shall appoint the office of public advocacy to represent the person. The 19 committed person is not entitled to be present at the show cause hearing. If the court 20 at the show cause hearing determines that probable cause exists to believe that the 21 person's mental abnormality or personality disorder has so changed that the person is 22 safe to be at large and is not likely to commit a sexually violent predatory offense if 23 discharged, the court shall set a hearing on the issue. At the hearing, the committed 24 person is entitled to be present and to the benefit of all constitutional protections that 25 were afforded to the person at the initial commitment proceeding. The attorney 26 general shall represent the state and has the right to a jury trial and to have the 27 committed person evaluated by experts chosen by the state. The committed person 28 may also have experts evaluate the person on the person's behalf, and the court shall 29 appoint an expert if the person is indigent and requests an appointment. The burden 30 of proof at the hearing is upon the state to prove beyond a reasonable doubt that the 31 committed person's mental abnormality or personality disorder remains such that the
01 person is not safe to be at large and, if released, is likely to commit a sexually violent 02 predatory offense. 03 (c) If a person has previously filed a petition for discharge without the 04 commissioner's approval and the court determined, either upon review of the petition 05 or following a hearing, that the petitioner's petition was frivolous or that the 06 petitioner's condition had not so changed that the person was safe to be at large and 07 was not likely to commit a sexually violent predatory offense if discharged, the court 08 shall deny the subsequent petition unless the petition contains facts upon which a court 09 could find that the condition of the petitioner has so changed that a hearing is 10 warranted. Upon receipt of a second or subsequent petition from a committed person 11 without the commissioner's approval, the court shall review the petition and determine 12 if the petition is based upon frivolous grounds and if so shall deny the petition without 13 a hearing. 14 Sec. 47.30.822. DUTIES OF DEPARTMENT; IMMUNITY. (a) The 15 department is responsible for costs relating to the evaluation and treatment of persons 16 committed to its custody under the provisions of AS 47.30.816 - 47.30.824. 17 Reimbursement may be obtained by the department for the cost of care and treatment 18 of persons committed to its custody under AS 47.30.819. 19 (b) The state, agency, employees of the agency, and officials are immune from 20 liability for any good faith conduct under AS 47.30.816 - 47.30.824. 21 Sec. 47.30.823. RELEASE OF INFORMATION AUTHORIZED. 22 Notwithstanding any other provision of law and in addition to any other information 23 required to be released under AS 47.30.816 - 47.30.824, the department may release 24 relevant information that is necessary to protect the public concerning a specific 25 sexually violent predator committed under AS 47.30.816 - 47.30.824. 26 Sec. 47.30.824. DEFINITIONS. In AS 47.30.816 - 47.30.824, 27 (1) "mental abnormality" means a congenital or acquired condition 28 affecting the emotional or volitional capacity that predisposes the person to the 29 commission of criminal sexual acts in a degree that makes the person a menace to the 30 health and safety of others; 31 (2) "predatory" means that acts are directed towards strangers or
01 towards individuals with whom a relationship has been established or promoted for the 02 primary purpose of victimization; 03 (3) "sexually motivated" means that one of the purposes for which the 04 person committed the crime was for the purpose of the person's sexual gratification; 05 (4) "sexually violent offense" means an act that is: 06 (A) a violation of AS 11.41.410 - 11.41.420(a)(1), 11.41.434 - 07 11.41.438, or 11.41.450 or a felony offense in this or another jurisdiction 08 formerly, or currently, having elements similar to AS 11.41.410 - 09 11.41.420(a)(1), 11.41.434 - 11.41.438, or 11.41.450; 10 (B) a violation of AS 11.41.100 - 11.41.110, 11.41.200 - 11 11.41.210, 11.41.300, or AS 11.46.300 or a felony offense in this or another 12 jurisdiction formerly, or currently, having elements similar to AS 11.41.100 - 13 11.41.110, 11.41.200 - 11.41.210, 11.41.300, or AS 11.46.300, that has been 14 determined beyond a reasonable doubt, during civil commitment proceedings 15 under AS 47.30.816 - 47.30.824, to have been sexually motivated; or 16 (C) a violation of AS 11.31.100 - 11.31.110, or a felony offense 17 in this or another jurisdiction formerly, or currently, having elements similar 18 to AS 11.31.100 - 11.31.110, that is an attempt or criminal solicitation to 19 commit one of the felonies designated in (A) or (B) of this paragraph; 20 (5) "sexually violent predator" means a person who has been convicted 21 of or charged with a sexually violent offense, or has otherwise been found to have 22 committed a sexually violent offense as a juvenile, and who suffers from a mental 23 abnormality or personality disorder that makes the person likely to commit a sexually 24 violent predatory offense. 25 * Sec. 2. APPLICABILITY. This Act applies to all acts committed before, on, or after the 26 effective date of this Act.