Legislature(1993 - 1994)
02/16/1994 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 349 - CIVIL COMMITMENT OF SEXUAL PREDATORS Number 355 REP. SEAN PARNELL, Prime Sponsor of HB 349, testified that HB 349 is an act that provides for the civil commitment of sexual predators, and recognizes that there are a special group of people that don't fall within the conventional civil commitment system, which are for people who get committed to Alaska Psychiatric Institute (API), where typically the time frame of commitment is short. He said the time frame for treatment needs of this population is much more lengthy and expensive than the typical commitment procedures are designed for. Rep. Parnell explained that HB 349 would set up another category of civil commitment procedures for this group of people, and the bill recognizes that they have a personality disorder or mental abnormality that would predispose them to sexual offenses, and it recognizes that these people are entitled to treatment and should be confined. Rep. Parnell said that most of the people that have committed a sexual offense have been incarcerated, and three months before their sentence is about to end, Department of Corrections will send a notice to the Attorney General's (AG's) Office telling them that a person who may fall within the definition of a sexual predator is about to be released. He continued, saying the AG's Office then makes a determination whether they intend to petition for civil commitment, and if they do decide to do so, they file a petition with the Superior Court, and within 72 hours there is a probable cause hearing held at which the individual has a right to be present. Rep. Parnell said if there is probable cause to believe the person is a sexual predator, a hearing is then scheduled for 45 days within the date of the filing of the petition, and at the hearing the person the AG is attempting to commit has all the attendant constitutional rights of a trial, and the AG's Office has to prove beyond a reasonable doubt that this person is a sexually violent predator under the act. Rep. Parnell explained that once that happens, the individual is transferred to the custody of the Department of Health and Social Services (DHSS) for custody care and confinement. Number 448 REP. PARNELL discussed questions that commonly come up, one of which is, is there a mechanism in the bill to prevent confinement for life. The short answer is there is a mechanism in the bill that provides for annual examinations and the right to petition to the Court for release, and at the hearing the burden of proof falls on the AG's Office to show the individual is still a violent sexual predator and should still be committed. He discussed other questions, including how many people would fall under this commitment law, and said the Department of Law has estimated it will prosecute two to three individuals a year; another question was how much will this cost? He referred to the DHSS fiscal note and explained they were predicting about ten detainees a year and said he has asked them to revise it if necessary. Rep. Parnell then discussed the constitutionality of the bill, and said one of the primary areas of concern is the right to liberty and whether a person should be confined after they have served their sentence for a crime, but said HB 349 is modeled after a Washington sexual predator act that has been challenged on this ground as well as others, and the Washington Court found that where the state has a compelling interest in treating and confining these people, based upon their mental abnormality or personality disorder, and based upon their danger to society, the civil commitment process in Washington has been upheld and does not violate the constitutional provision of taking of liberty. Rep. Parnell said the Court did find fault with several aspects of the law, which have been remedied in HB 349, including the treatment aspect of the bill. Number 506 DEBORAH SMITH, Executive Director of the Alaska Mental Health Board, testified regarding HB 349 and discussed several comments from the Board, including making the distinction between those sex offenders that can be rehabilitated and those who can't. She said the Board's real concern with the bill is that if it is a lock them up and throw away the key, that is not mental health treatment, it is protecting the public. Ms. Smith indicated that there are some categories of sex offenders that can be treated, but what they have found is that what sex offenders treatment in the prisons is not necessarily appropriate for some population groups, and gave an example, citing the sex offenders who are developmentally disabled. MS. SMITH urged the committee to look at the whole spectrum of sex offenders and how you are going to treat them, and said the Board suggested the committee look at sex offender registration, current treatment in prisons, and then HB 349 could become part of that spectrum. She said that the Board also has a problem with the DHSS fiscal note for HB 349 in which funding is out of the Mental Health Trust, and if this is not a treatment program, it is not an appropriate use of mental health trust money. Number 565 REP. PORTER observed that the administration of the penal system by constitution does address rehabilitation of the offender, but also addresses protection of the public, and said that is part of what HB 349 is about. Number 572 REP. JAMES commented that she agrees that there are more pieces to the sex offender legislation and would like to get some of those pieces in the legislation here also. Number 577 CAPTAIN SHIRLEY WARNER, Anchorage Police Department and Co- Chair of the Task Force on Sexual Assault, testified in favor of HB 349 on behalf of both entities. Capt. Warner discussed the high recidivism rate for sex offenders, and described one perpetrator that has served jail time, has committed a violent sexual assault on a woman in a wheelchair, and is currently stalking a woman working for the Department of Corrections, and said he would be a perfect candidate for commitment under this legislation. Ms. Warner suggested that the legislation would help both the perpetrator and the victims and urged the committee to support HB 349. Number 624 REP. PHILLIPS asked Captain Warner if the Task Force had looked at HB 349, and if they had any recommendations on the bill. Number 629 CAPTAIN WARNER replied that the Task Force did not review it in great detail; however, they support the bill in essence and concept. Number 638 CINDY SMITH, Executive Director of the Alaska Network on Domestic Violence and Sexual Assault, a coalition of twenty- two nonprofits around the state that work with victims of domestic violence and sexual assault. Ms. Smith said they are pleased to support HB 349, and believe it would address several problems, including crime prevention. She discussed the recidivism rate and said it ranges from about 80 to 95 percent, and that some treatment lowers the rate, but it is not a cure. Ms. Smith described a current case where a sex offender convicted of first degree sexual assault and kidnapping from Washington moved to Homer, and the Homer Police were notified, but because Alaska doesn't have a sex offender registration, they could not publicize it. She said within three weeks of moving to Homer, he committed a crime with the same M/O, and said for this individual it wasn't a question of if, it was a question of when. She cited other examples of sex offenders in Alaska repeating their crimes after being released from prison. Number 690 MS. SMITH continued, saying the commitment law won't fix that unilaterally, that is actually a law that is fairly specific and applies to a small number of people, but the intent is not punitive, rather it is to try and provide treatment, and try and fix the problem. She said we are not successful in treating individuals in jail, and her organizations thinks this bill will work. Number 700 REP. PORTER said for the record that he too hopes that by the end of the session, Alaska will have a sexual offenders registration law. Number 716 BRANT MCGEE, Director, Office of Public Advocacy, testified on the fiscal aspect of HB 349, citing the requirement of a Public Advocate, but said there is a better and cheaper way to provide representation, and that is through the Public Defender's Agency. He said the reason is that the Public Defender is likely to have represented these individuals on prior charges, and in addition, many times his staff will not be able to represent them, because it is not uncommon for the perpetrators who have done their crime against children, and his staff is already acting on behalf of the child, which would cause a conflict and they would have to hire private attorneys to take over the case, which is the most expensive way to do business. Mr. McGee encouraged the committee to change the representation from the Office of Public Advocacy to the Public Defender's Office. Number 758 REP. PARNELL responded that he thinks the change would tend to make people think the civil commitment is a criminal matter versus a civil matter. Number 769 MR. MCGEE responded that the Public Defender's Office provides representation in civil cases as well as criminal and that they have specialists in the civil procedures. Number 788 REP. PORTER said he thought for the purposes of the record with the information Mr. McGee has provided that both agencies have civil and criminal responsibilities, and in the interest of reduced budget, it might be appropriate for the first agency to be the Public Defender. He said the committee would discuss it when they take up specific amendments. Number 798 LEONARD ABEL, Community Health Director for DHSS, testified that the DHSS would be the recipient of this new class of committed patients, and generally DHSS is cooperative and supportive of SB 349, as they believe some people need to be off the street to protect society. He said the way the bill is structured it does that and also provides an avenue for treatment for a population that is not considered "mentally ill," but they do have a very severe, very disabling mental disorder that very severely limits their capacity to function socially, legally and morally. Mr. Abel indicated that there is a chance for these people, but it involves long-term treatment, with highly specialized staff, and DHSS is concerned about where this treatment would take place, which hinges on the number of people, and also issues like least restrictive. MR. ABEL discussed DHSS's fiscal note that looks at the possibility of needing two ten-bed, fairly secure residential facilities and that was based on the consideration of least restrictive, and also by focusing on other institutions such as API and their mission. He said DHSS's estimates may be too high, but their approach is still to use a residential facility that would have security measures. Mr. Abel indicated the department is also concerned about the funding, and cited other groups of people that are easier to treat, and they would not like to see funds removed from those treatment programs to focus on this particular population. He said, however, that the department is generally supportive of HB 349, given these concerns. Number 857 REP. JAMES questioned whether a ten bed residential unit would be the place to house these people, because the individuals committed would not want to be confined with nothing to do, and not being particularly productive in some way. TAPE 94-22, SIDE B Number 000 MR. ABEL indicated that this is not a population that can be given weekend passes and such. Number 016 REP. PORTER asked if the ten-bed unit was envisioned as a wing on API or a stand-alone facility. Number 022 MR. ABEL said they were looking at a separate facility, but that was when the estimate was ten or more people a year, and if it is closer to two or three people per year, speaking for himself, not DHSS because he has not discussed it with other officials, but perhaps API could absorb the population. Number 073 REP. GREEN discussed the fiscal note, and treatment, but not necessarily a cure and long-term treatment and asked if the fiscal note was based on a long period of time. He also asked, if the legislation involved incarceration, would DHSS withdraw its support? Number 090 MR. ABEL responded that the fiscal note was based on long- term treatment, and if treatment was deleted they would withdraw their support. Number 102 REP. NORDLUND asked if it was possible to begin treatment during criminal incarceration. Number 120 REP. PARNELL discussed the distinction between voluntary and involuntary treatment, and said inmates can refuse treatment. Number 133 REP. PORTER said there is sex offender treatment available in prisons, but one problem is the first time offender often gets released before a treatment program can begin, another problem is the prisoner can refuse treatment, and finally, prisoners are often furloughed without receiving any treatment. He said if an individual is committed, the intent is for treatment. Number 186 REP. NORDLUND responded that if treatment was introduced earlier in the process, it might save money. The committee discussed treatment options available through the Department of Corrections and the cost of treatment in correctional settings and as proposed under HB 349 and the constitutional impact of mandating a program that other legislatures would have to fund. Number 291 REP. PORTER closed the hearing to public testimony and asked for amendments, along with requesting testimony from Margo Knuth. Number 320 MARGO KNUTH, Assistant Attorney General, Department of Law, testified that for preventative detention, one theory is that you cannot take someone you think is dangerous, just to keep them from committing crimes, and you need both dangerousness and mental illness. She said the definition of mental illness has been something that's treatable, and if you can't treat it, it's something else and all of the civil commitment proceedings fall apart. Ms. Knuth continued and said another school of thought is that you can be mentally ill and not treatable and still be mentally ill. MS. KNUTH explained the Court's interpretation, whereby a person that is anti-social cannot be committed, and the answer is to increase prison sentences for the crime of sexual assault in the first degree and deal with them criminally instead. She told the committee that they need to have on the record the premise of mental illness, and it helps if there is any indication they are treatable. Ms. Knuth indicated a problem the bill might run into is the argument that it really is a criminal proceeding and not a separate civil proceeding and it violates double jeopardy. She said the answer to that is the mental illness and treatment factors, but it is the double jeopardy arguments she expects to hear most frequently. Ms. Knuth concluded that the greatest help for the bill is a strong factual showing of the possibility of treatment. She discussed amendments to strengthen the bill and said the committee would get to them at some point in the hearing. Number 394 REP. PORTER said it seems to him that there is an anomalous situation, if you take the approach that would seem to be cleaner cut; i.e., criminal, then you have all the constitutional questions that come in from that; but when you try to deal with it on the other spectrum you've got just the opposite considerations. Rep. Porter asked for amendments. Number 412 REP. PHILLIPS, for the purposes of discussion, moved Amendment No. 1. Number 422 REP. PARNELL indicated that the work draft was before the committee and that Amendment No. 1 clarifies some of the problems that were identified by the Washington Supreme Court, as well as cleans up some language. Rep. Parnell discussed line 28, page 3, where it says that within 45 days of filing the petition, Amendment No. 1 would insert the words "and following a judicial determination of probable cause." He then discussed page 4, line 5, which cleans up examiner language to add the words "expert or professional." Rep. Parnell said on page 5, line 25, after correction facility, what came up was a person could actually be confined for up to a year without being notified of their right to an annual examination and hearing, and this addresses that when a person is committed, they are told of this right. Number 486 MS. KNUTH addressed the immunity provision for the state agency and employees of the agency and said the bill currently offers immunity for any good faith conduct under the act. He explained that good faith protects you from paying the dollars at the end of the judgement, but it doesn't protect you at all from being sued, and on one hand it is unpalatable for some people that the state be given absolute immunity, but on the other hand it's costing a lot of dollars to be defending the number of tort cases that we are seeing, and the immunity section will protect the state. Number 523 REP. PHILLIPS asked if HB 277, Indemnification for Public Employees, which passed out of House Judiciary last week, didn't do what Ms. Knuth was describing. Number 527 REP. PORTER replied that HB 277 provided individual liability, not state. Number 540 REP. NORDLUND asked about gross negligence. Number 550 MS. KNUTH said it was the same thing as non-good faith, and that she probably could find out what the proper phrase was that would allow liability for outrageous conduct. Number 561 REP. PARNELL indicated that he didn't have a problem with amending the amendment to drop that particular language at this point, and then another amendment could be offered at a later time. Number 565 REP. JAMES replied that she thought we could take any good faith out now and then maybe find something else to put in there. Number 570 MS. KNUTH indicated that intentional misconduct would satisfy her concerns. Number 582 REP. PORTER said the committee should probably leave good faith in HB 349 rather than take it out and not have something in place, and moved to amend the amendment by deleting page 7, line 31. Number 636 THE COMMITTEE SUBSTITUTE FOR HB 349 WAS MOVED WITHOUT OBJECTION. Number 673 AMENDMENT NO. 1 WAS AMENDED AND MOVED WITHOUT OBJECTION. Number 675 REP. PORTER directed Ms. Knuth and Rep. Parnell to page 4, second paragraph (b), line 13, "the court or jury shall determine beyond a reasonable doubt whether the person is a sexually violent predator." He continued, saying if a finding of sexual motivation is necessary, and asked if the state had a crime for which the element is "sexually motivated?" Number 686 MS. KNUTH responded no, and said what's going on is that all sex offenses automatically qualify for this type of proceeding, but other felonies also qualify -- murder, robbery, etc., and what this is saying is that if you are a non-sex offense offender, then the state can still try to civilly commit you if the state finds that the crime, which wasn't a sex offense, nonetheless was sexually motivated. She said the classic example is the person who ends up being convicted for murder when it was murder/rape, so what would be required there is simply showing that the charge and conviction was murder, but the offense was a sex offense. Number 701 REP. PARNELL refereed the committee to their bill packets which contained profiles of the types of offenders who are confined in Washington at this time, and it will demonstrate the worst of the worst. Number 714 REP. PORTER indicated that he sees what it is HB 349 is seeking to do, but he has some difficulty with alleging that a finding of sexual motivation is necessary to classify the offense as a sexually violent offense. Number 720 MS. KNUTH responded, saying what HB 349 is saying is if the offense that's being alleged is an offense for which the finding of sexual motivation is necessary, then the state has to prove that beyond a reasonable doubt. Ms. Knuth said the motivation part is the hardest part to prove, particularly when we know rape isn't a sex crime, it's a power crime, so analytically it makes sense, but in terms of practical terms, there is something troublesome there. Number 738 REP. PORTER asked if the Washington case spoke to proof beyond a reasonable doubt and if HB 349 would have to use that stringency, and if you could not use preponderance instead. MS. KNUTH replied that she didn't know, but what might be easier to change is the terminology; sexual motivation is something the Washington law used, but maybe Alaska could refer to something that goes to conduct rather than motivation. She indicated that she could work with the sponsor to come up with language focusing on conduct instead of motivation. Number 757 REP. GREEN expressed a concern that once an individual is committed and they have the right to an annual review, would this cause an undue burden on Department of Law? Number 765 MS. KNUTH responded that a burden, yes, but as far as an undue burden, she doesn't know, it is not avoidable. Number 781 REP. PORTER asked if the committee objected to making the Public Defender the primary agency in charge of commitments. Number 787 REP. PARNELL said he still had concerns about that and the issue deserved more scrutiny. Number 790 REP. JAMES indicated she shared Rep. Parnell's concern with the perception of using the Public Defender versus the Office of Public Advocacy. Number 803 REP. PORTER explained that the state has a Public Defender and an Office of Public Advocacy and they sound pretty close, and he thinks the consideration will ultimately be fiscal, and if the committee can get enough information on the record that they mean confinement, not incarceration, that they mean civil procedure, not criminal procedure, that they mean an attempt at treatment, although they recognize that is one difficult process, that within the constitutional requirements of making this bill meant the constitutional restrictions that obviously exist. He said at the same time, he doesn't think it would be deleterious with that on the record, to save some money and if the Public Defender can save two-thirds of the work by already having a record of this case, then so be it. Number 820 REP. PARNELL said he wanted to return to the treatment portion of HB 349 and put some things on the record, and asked the chairman if he wanted to resolved the Public Defender issue first. Number 823 REP. PORTER suggested that Rep. Parnell make a note of these concerns and any others that come up, then the committee would hold the bill until he comes back with other amendments addressing those concerns. MS. KNUTH indicated that from the Department of Law's perspective, it does not make any difference which agency handles it, and to the Court of Appeals, the treatment issue is more important than any of the other trappings, and she does believe it's true that the Public Defender's Office handles all civil commitment proceedings, in which case it does make sense for them to do this as well. Number 833 REP. NORDLUND asked for a fiscal note from the Public Defender's Agency. Number 840 REP. PORTER discussed another issue that came up previously in regard to the appointment of the examiner and whether it should be the responsibility of the Court rather than the agency. Number 849 CHRIS CHRISTENSEN, General Counsel to the Judicial Branch, testified regarding three sections in the bill, and said the way Alaska does things is a little different than in Washington where the judge appoints both the counsel and the psychiatrists to do the examinations. Mr. Christensen indicated that in Alaska the individual gets their public defender or public advocate and that person goes out and hires whatever expert they think they need, which is funded out of their budget, so all the costs of representation are in one agency's budget. He said the way HB 349 has been drafted directs the Office of Public Advocacy to perform some functions, and the Court to appoint the examiner. Mr. Christensen recommended the new draft reflect only one agency's involvement. TAPE 94-23, SIDE A Number 000 MS. KNUTH indicated that the Court in Washington said if you are in that category the state must also show a recent overt act of showing dangerousness, and she expects an amendment will be forthcoming that would include that as well, and added that it's not required when a person has been incarcerated because, presumably, there has been no opportunity for this recent display of dangerousness. Number 016 REP. GREEN asked if the fact that you may have someone committed for a violent sex crime, and he has already served his time, and now it's his review period, does the fact that he was committed in the first place act in the state's interest of showing this guy still isn't well? Number 018 MS. KNUTH said she didn't know; however, a conviction will certainly help establish that this was a dangerous person, but they will still need expert testimony on the mental illness question, and the best sexual offender treatment program the state has is Highland Mountain Correction Center. She said she understands it actually has worked for some sex offenders, but the problem is it is too small, and there is a long waiting list for it, so they have made it available to the most serious offenders close to when they are being released. Ms. Knuth indicated that it has been a resource issue, so sex offenders can't start in it and stay in it the whole length of their criminal sentences. Number 054 REP. GREEN asked, what is the situation now with respect to this kind of individual if we didn't have this kind of statute? Number 060 MS. KNUTH responded that they sigh. Number 067 REP. PORTER told the committee that he will hold HB 349 until Rep. Parnell is ready with new amendments, and then they will hear it at the next meeting. HB 349 WAS HELD FOR FURTHER ACTION.
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