HB 360: "An Act providing for the civil commitment of sexually violent predators."
00HOUSE BILL NO. 360 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 9A. 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 the likelihood
01 of engaging in repeat acts of predatory sexual violence is high among this group. The 02 existing involuntary treatment procedure, AS 47.30.700 - 47.30.815, is inadequate to 03 address the risk to reoffend because during confinement these offenders do not have 04 access to potential victims and, therefore, will not engage in specific overt acts 05 evidencing their risk of harm to others during confinement as required by the 06 involuntary treatment procedure for continued confinement. The legislature further 07 finds that the prognosis for curing this group of sexually violent offenders is poor, the 08 treatment needs of this population are very long term, and the treatment methods for 09 this population are very different than the traditional treatment methods for people 10 appropriate for commitment under the involuntary treatment procedures. 11 Sec. 47.30.817. Notice to attorney general prior to release. (a) When it 12 appears that a person may meet the criteria for being a sexually violent predator, the 13 agency with jurisdiction shall give written notice to the attorney general three months 14 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 features, 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; judicial
01 determination; evaluation. (a) The attorney general may file a petition in the 02 superior court alleging that a person is a sexually violent predator and stating sufficient 03 facts to support the allegation when it appears that the person may be a sexually 04 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, notice shall be provided to the person and the 15 court shall schedule a hearing within 72 hours at which the person has a right to 16 appear. At the hearing, the judge shall determine whether probable cause exists to 17 believe that the person named in the petition is a sexually violent predator. If probable 18 cause is found, the judge shall direct that the person be taken into custody, and the 19 person shall be transferred to an appropriate facility for an evaluation as to whether 20 the person is a sexually violent predator. The evaluation shall be conducted by a 21 person professionally qualified to conduct the examination under regulations adopted 22 by the department. In adopting the regulations under this subsection, the department 23 shall consult with the Department of Corrections and the Council on Domestic 24 Violence and Sexual Assault. The results of the examination conducted under this 25 section are admissible in all further proceedings conducted under AS 47.30.816 - 26 47.30.824. 27 Sec. 47.30.819. Trial; rights of parties; determination; commitment 28 procedures. (a) Within 60 days following a judicial determination of probable cause 29 under AS 47.30.818, the court shall conduct a trial to determine whether the person 30 is a sexually violent predator. The trial may be continued upon the request of either 31 party and a showing of good cause or by the court on its own motion in the interests
01 of justice and when the person will not be substantially prejudiced. At all stages of 02 the proceedings under AS 47.30.816 - 47.30.824, a person who is the subject of a 03 petition filed under AS 47.30.818 is entitled to the assistance of counsel, and, if the 04 person is indigent, the court shall appoint the office of public advocacy to assist the 05 person. When a person is subjected to an examination under AS 47.30.818(b), the 06 person may retain experts or professionals to perform an examination on the person's 07 behalf. When the person wishes to be examined by a qualified expert or professional 08 of the person's choice, the expert or professional shall be permitted reasonable access 09 to the person for the purpose of an examination, as well as to all relevant medical and 10 psychological records and reports. If the person is indigent, the court, upon the 11 person's request, shall determine if the services are necessary and the compensation for 12 those services is reasonable. If the court determines that the services are necessary and 13 the compensation for the services is reasonable, the court and the office of public 14 advocacy shall assist the person in obtaining an expert or professional to perform an 15 examination or participate in the trial on the person's behalf. Upon motion of the 16 person or the attorney general, or on the court's own motion, the trial shall be before 17 a jury. If no motion is made, the trial shall be before the court. 18 (b) The court or jury shall determine, beyond a reasonable doubt, whether the 19 person is a sexually violent predator. If the state alleges in the petition that the term 20 of total confinement has expired for a person who has been convicted of a sexually 21 violent offense or who has been found to have committed a sexually violent offense 22 as a juvenile, the state shall prove beyond a reasonable doubt that the person has 23 engaged in a recent act demonstrating dangerousness. If trial is to a jury, the jury 24 must make the determination required by this subsection unanimously. Upon a 25 determination that the person is a sexually violent predator, the court shall consider 26 less restrictive alternatives to confinement and whether these alternatives, if any, will 27 adequately protect the public so it is safe for the person not to be confined and will 28 prevent the person from committing a sexually violent predatory offense. If the court 29 determines that the less restrictive alternatives will not (1) adequately protect the 30 public so it would be safe for the person to be at large, or (2) prevent the person from 31 committing a sexually violent predatory offense, the court shall order the person
01 committed to the custody of the department for control, care, and treatment until the 02 person's mental abnormality or personality disorder has so changed that the person is 03 safe to be at large. If the court or jury is not satisfied beyond a reasonable doubt that 04 the person is a sexually violent predator, the court shall direct the person's release 05 from the custody of the department. 06 (c) If the person charged with a sexually violent offense has been found 07 incompetent to stand trial, is about to or has been released, and the person's 08 commitment is sought under this section, the court shall first hear evidence and 09 determine whether the person committed the act or acts charged. The hearing on this 10 issue must comply with the procedures specified in this section. In addition, the rules 11 of evidence applicable in criminal trials and all constitutional rights available to 12 defendants at criminal trials, other than the right to a jury trial and right not to be tried 13 while incompetent, shall apply. After hearing evidence under this subsection, the court 14 shall make specific findings on whether the person committed the act or acts charged, 15 the extent to which the person's incompetence affected the outcome of the hearing, 16 including its effect on the person's ability to consult with and assist counsel and to 17 testify on the person's own behalf, the extent to which the evidence could be 18 reconstructed without the assistance of the person, and the strength of the state's case. 19 If, after the conclusion of the hearing on this issue, the court finds, beyond a 20 reasonable doubt, that the person committed the act or acts charged, it shall enter an 21 order, appealable by the person, on that issue and may proceed to consider whether the 22 person should be committed under this section. A finding under this subsection that 23 the person committed the act or acts charged is not a conviction or a finding of guilt 24 for any purpose other than for consideration of commitment. 25 (d) The department shall confine a person who is ordered committed under 26 AS 47.30.818(b) in a secure mental health facility operated by the department. 27 Persons committed to the department shall be segregated at all times from other 28 persons under the supervision of the department. The department may not confine a 29 person committed under AS 47.30.816 - 47.30.824 in a correctional facility or 30 institution operated by the Department of Corrections. This subsection does not 31 prohibit the department from confining a person committed under AS 47.30.816 -
01 47.30.824 in a mental health facility operated by the department and located within or 02 on the grounds of a correctional facility. Persons confined in a mental health facility 03 within or on the grounds of a correctional facility shall be segregated at all times from 04 the inmates of the correctional facility. Following confinement of the committed 05 person, the department shall inform the person of the person's rights under 06 AS 47.30.821. The involuntary detention or commitment of a person under 07 AS 47.30.816 - 47.30.824 shall conform to the constitutional requirements for care and 08 treatment. 09 Sec. 47.30.820. Annual examination. The department shall provide an 10 examination of the current mental condition of a person committed under 11 AS 47.30.816 - 47.30.824 at least once each year. In addition to the annual 12 examination provided by the department, the person may retain or, if the person is 13 indigent and so requests, the office of public advocacy may retain a qualified expert 14 or a professional to examine the person, and the expert or professional shall have 15 access to all records concerning the person. The results of the examinations shall be 16 provided to the court that committed the person. 17 Sec. 47.30.821. Petition for release. (a) If the commissioner determines that 18 the person's mental abnormality or personality disorder has so changed that the person 19 is safe to be at large and is not likely to commit a sexually violent predatory offense 20 if released, the commissioner shall authorize the person to petition the court for 21 release. The petition shall be served upon the attorney general as the attorney for the 22 state. The court, upon receipt of the petition for release, shall order a hearing within 23 45 days. The state has the right to have the petitioner examined by an expert or 24 professional person of their choice. The hearing shall be before a jury if demanded 25 by either the petitioner or the state. The burden of proof is upon the state to show 26 beyond a reasonable doubt that the petitioner's mental abnormality or personality 27 disorder remains such that the petitioner is not safe to be at large and that, if 28 discharged, is likely to commit a sexually violent predatory offense. If the hearing is 29 before a jury, the jury must make this determination unanimously. 30 (b) This section does not prohibit the person from otherwise petitioning the 31 court for discharge without the commissioner's approval. The commissioner shall
01 provide the committed person with an annual written notice of the person's right to 02 petition the court for release over the commissioner's objection. The notice must 03 contain a waiver of rights. The commissioner shall forward the notice and waiver 04 form to the court with the annual examination. If the person does not affirmatively 05 waive the right to petition, the court shall hold a show cause hearing to determine 06 whether facts exist that warrant a hearing on whether the person's condition has so 07 changed that the person is safe to be at large and is not likely to commit a sexually 08 violent predatory offense if discharged. The committed person has the right to have 09 an attorney represent the person at the show cause hearing and, if the person is 10 indigent, the court shall appoint the office of public advocacy to represent the person. 11 The committed person is not entitled to be present at the show cause hearing. If the 12 court at the show cause hearing determines that probable cause exists to believe that 13 the person's mental abnormality or personality disorder has so changed that the person 14 is safe to be at large and is not likely to commit a sexually violent predatory offense 15 if discharged, the court shall set a hearing on the issue. At the hearing, the committed 16 person is entitled to be present and to the benefit of all constitutional protections that 17 were afforded to the person at the initial commitment proceeding. The attorney 18 general shall represent the state and has the right to a jury trial and to have the 19 committed person evaluated by experts chosen by the state. The committed person 20 may also have experts evaluate the person on the person's behalf, and the office of 21 public advocacy shall retain an expert if the person is indigent and requests an 22 appointment. The burden of proof at the hearing is upon the state to prove beyond a 23 reasonable doubt that the committed person's mental abnormality or personality 24 disorder remains such that the person is not safe to be at large and, if released, is 25 likely to commit a sexually violent predatory offense. 26 (c) If a person has previously filed a petition for discharge without the 27 commissioner's approval and the court determined, either upon review of the petition 28 or following a hearing, that the petitioner's petition was frivolous or that the 29 petitioner's condition had not so changed that the person was safe to be at large and 30 was not likely to commit a sexually violent predatory offense if discharged, the court 31 shall deny the subsequent petition unless the petition contains facts upon which a court
01 could find that the condition of the petitioner has so changed that a hearing is 02 warranted. Upon receipt of a second or subsequent petition from a committed person 03 without the commissioner's approval, the court shall review the petition and determine 04 if the petition is based upon frivolous grounds and, if so, shall deny the petition 05 without a hearing. 06 Sec. 47.30.822. Duties of department; immunity. (a) The department is 07 responsible for costs relating to the evaluation and treatment of persons committed to 08 its custody under the provisions of AS 47.30.816 - 47.30.824. Reimbursement may 09 be obtained by the department for the cost of care and treatment of persons committed 10 to its custody under AS 47.30.819. 11 (b) The state, agencies of the state, employees of agencies of the state, and 12 officials are immune from liability for conduct under AS 47.30.816 - 47.30.824 except 13 that this subsection does not preclude liability for civil damages as a result of gross 14 negligence or reckless or intentional misconduct. 15 Sec. 47.30.823. Release of information authorized. Notwithstanding any 16 other provision of law and in addition to any other information required to be released 17 under AS 47.30.816 - 47.30.824, the department may release relevant information that 18 is necessary to protect the public concerning a specific sexually violent predator 19 committed under AS 47.30.816 - 47.30.824. 20 Sec. 47.30.824. Definitions. In AS 47.30.816 - 47.30.824, 21 (1) "mental abnormality" means a congenital or acquired condition 22 affecting the emotional or volitional capacity that predisposes the person to the 23 commission of criminal sexual acts in a degree that makes the person a menace to the 24 health and safety of others; 25 (2) "predatory" means that acts are directed towards strangers or 26 towards individuals with whom a relationship has been established or promoted for the 27 primary purpose of victimization; 28 (3) "sexually violent offense" means an act that is 29 (A) a violation of AS 11.41.410, 11.41.420(a)(1), 11.41.434 - 30 11.41.438, or 11.41.450 or a felony offense in this or another jurisdiction 31 formerly, or currently, having elements similar to AS 11.41.410,
01 11.41.420(a)(1), 11.41.434 - 11.41.438, or 11.41.450; 02 (B) a violation of AS 11.41.100, 11.41.110, 11.41.200, 03 11.41.210, 11.41.300, or AS 11.46.300 or a felony offense in this or another 04 jurisdiction formerly, or currently, having elements similar to AS 11.41.100, 05 11.41.110, 11.41.200, 11.41.210, 11.41.300, or AS 11.46.300, if the state 06 proves beyond a reasonable doubt, in civil commitment proceedings under 07 AS 47.30.816 - 47.30.824, that, during the course of the offense, the person 08 engaged in or intended to engage in sexual penetration, sexual contact, or 09 sexually gratifying conduct; or 10 (C) a violation of AS 11.31.100 - 11.31.120, or a felony offense 11 in this or another jurisdiction formerly, or currently, having elements similar 12 to AS 11.31.100 - 11.31.120, that is an attempt, criminal solicitation, or 13 conspiracy to commit one of the felonies designated in (A) or (B) of this 14 paragraph; 15 (4) "sexually violent predator" means a person who has been convicted 16 of or charged with a sexually violent offense, or has otherwise been found to have 17 committed a sexually violent offense as a juvenile, and who suffers from a mental 18 abnormality or personality disorder that makes the person likely to commit a sexually 19 violent predatory offense. 20 * Sec. 2. APPLICABILITY. This Act applies to all acts committed before, on, or after the 21 effective date of this Act.