05/04/1994 09:15 AM Senate FIN

  CSHB 231(FIN):      An Act relating to when previous conduct                 
                      constituting  a  sexual  offense may  be                 
                      used   as   an  aggravating   factor  at                 
                      sentencing.                                              
                                                                               
                      Margot    Knuth,    Assistant   Attorney                 
                      General,  Criminal Division,  Department                 
                      of Law, answered  questions until  Diane                 
                      Schenker,  Special   Assistant  to   the                 
                      Commissioner, Department of Corrections,                 
                      could be located to speak to the  fiscal                 
                      note and  the bill.   CSHB  231(FIN) was                 
                      HELD  in committee  until  a new  fiscal                 
                      note and committee  substitute could  be                 
                      drafted.                                                 
  CS FOR HOUSE BILL NO. 231(FIN):                                              
                                                                               
       An Act relating to when previous conduct constituting a                 
       sexual offense may be used as an  aggravating factor at                 
       sentencing.                                                             
                                                                               
  Co-chair  Pearce invited  Margot  Knuth, Assistant  Attorney                 
  General, Criminal Division, Department of  Law, to the table                 
  since Diane Schenker, Special Assistant to the Commissioner,                 
  Department of Corrections, had not arrived at the meeting.                   
                                                                               
  Ms. Knuth said  there was  an assumption being  made by  the                 
  Department  of Corrections  that  this aggravator  provision                 
  would be used in  extremely few cases and anticipated  a one                 
  percent incidence.  Because  of the sex offenders that  were                 
  already in custody, she explained  any impact at all carried                 
  with  it a  fiscal note.   HB 231  would pick  up situations                 
  where  a  sex  offender's prior  offense  was  either sexual                 
  assault (rape) or  sexual abuse  of a minor,  and either  of                 
                                                                               
                                                                               
  those would be used as an aggravating factor.                                
                                                                               
  At this time, Diane Schenker  joined the meeting.   Co-chair                 
  Pearce  explained  that  there  were  questions  about   the                 
  Department  of Correction's  fiscal note  and why it  was so                 
  late in coming.                                                              
                                                                               
  DIANE SCHENKER said that the fiscal note was  submitted last                 
  year when the  original bill included a mitigator  which was                 
  not in the bill  at present.  She  said that as long  as the                 
  aggravating factor was in the bill,  it must be assumed that                 
  sentences would be aggravated.                                               
                                                                               
  In answer  to Co-chair Frank, Ms. Schenker said an operating                 
  cost was included  because the bill aggravated  sex offenses                 
  which already generally resulted in a year of incarceration.                 
  The  actual  prisoner  would already  be  incarcerated  on a                 
  normal  sentence and if the aggravator went into effect, the                 
  sentence  would be lengthened at  some point.  She explained                 
  that  the  capital  expenses  were  put  into  FY95  because                 
  approximately five beds  would need  to be added.   A  rough                 
  estimate  was  made of  the  aggravate increase  and capital                 
  money was asked for up front.                                                
                                                                               
  In answer to Co-chair Pearce, Ms.  Schenker said she did not                 
  know why Section 3 with the mitigating language was removed.                 
  Ms.  Knuth said there  was a philosophical  objection to the                 
  language  that  said why  should  someone be  rewarded whose                 
  conduct was becoming more serious.  Co-chair Frank concurred                 
  with that opinion.                                                           
                                                                               
  In answer  to Co-chair  Pearce, Ms.  Schenker remarked  that                 
  even if the mitigating language was  put back into the bill,                 
  a zero fiscal note would not be applicable.                                  
                                                                               
  Co-chair Pearce said that she would  prefer to move the bill                 
  and  add back in the  mitigating language in Rules Committee                 
  or on the  floor if it would make a difference in the fiscal                 
  note.                                                                        
                                                                               
  After comments from Co-chair Frank, Ms. Schenker said, based                 
  on  the crime  legislation that  would pass  this year,  not                 
  including  the  third  time felony  DWI,  the  Department of                 
  Corrections  would  require  the  construction  of over  200                 
  additional  beds.     The  Department  did   consider  every                 
  conceivable  way  that  those  could  be housed  in  outside                 
  contract or less secure  beds.  The  beds needed for HB  231                 
  were on top of those additional 200 beds, none of which were                 
  funded.   In fact,  she said,  some existing  beds had  been                 
  threatened to be defunded.                                                   
                                                                               
  In answer to Senator Rieger, Ms.  Schenker said in regard to                 
  the expansion of the furlough policy, the department was not                 
  prohibited  from furloughing  presumptive  sentences or  any                 
                                                                               
                                                                               
  offender by crime offense.  The only restriction on furlough                 
  was that they had to have served a third  of their sentence,                 
  be within three years  of their release,  and able to be  in                 
  community custody.  At this time, the department had gone as                 
  far as it could in this area.  in fact, it had to pull  back                 
  in furloughing untreated sex offenders.                                      
                                                                               
  At Co-chair Pearce's request, Ms. Schenker agreed to provide                 
  the committee  with  a new  fiscal  note if  the  mitigating                 
  language was added back into HB 231.                                         
                                                                               
  Co-chair Pearce  announced  that HB  231  would be  HELD  in                 
  committee.                                                                   
                                                                               
  Scheduled but not heard: