CSSB 216(JUD): "An Act providing for the civil commitment of sexually violent predators."
00CS FOR SENATE BILL NO. 216(JUD) 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. Screening and notice to attorney general before release. 12 (a) When it appears that a person may meet the criteria for a sexually violent 13 predator, the agency with custody shall request a referral examination by the 14 department, and give written notice to the attorney general, three months before the 15 anticipated release from confinement of the person. The criteria to be used by the 16 agency with custody to evaluate a person for referral under this subsection shall be 17 developed by the department in cooperation with the Department of Law and the 18 Department of Corrections. 19 (b) When a referral has been made to the department under (a) of this section, 20 the department shall assemble the person's criminal records, juvenile records, and any 21 other information that is relevant to evaluate the person according to standards adopted 22 by the department for screening a person who may be a sexually violent predator. 23 The standards for screening persons referred under (a) of this section shall be adopted 24 by the department in consultation with the Department of Law and the Department of 25 Corrections. Notwithstanding any other provision of law, all records in the custody 26 of a state agency requested by the department for the referral examination shall be 27 provided to the department. The department shall complete the referral examination 28 within 30 days and shall forward the results of the examination to the agency with 29 custody and to the attorney general. If the department determines that the person may 30 be a sexually violent predator or upon the request of the attorney general, the agency 31 with custody shall provide the following information to the attorney general:
01 (1) information concerning an anticipated plan for employment, 02 residence, conditions of release, and supervision if the person is released as scheduled; 03 (2) a summary of the person's institutional adjustment and any 04 treatment received; 05 (3) the results of the referral evaluation under this section, including 06 the documents obtained by the department for use in the evaluation; 07 (4) reports of any previous mental health examination of the person. 08 (c) In this section, "agency with custody" means the department with the 09 authority to direct the release of a person serving a sentence or term or period of 10 confinement. 11 Sec. 47.30.818. Sexually violent predator petition; filing; judicial 12 determination; evaluation. (a) The attorney general may file a petition in the 13 superior court alleging that a person is a sexually violent predator and stating sufficient 14 facts to support the allegation when it appears that the person may be a sexually 15 violent predator and it appears that 16 (1) the term of confinement of a person who has been convicted of a 17 sexually violent offense is about to expire or has expired; 18 (2) the term of confinement of a person found to have committed a 19 sexually violent offense as a juvenile is about to expire or has expired; 20 (3) a person who has been charged with a sexually violent offense and 21 who was determined to be incompetent to stand trial is about to be released or has 22 been released; or 23 (4) a person who has been found not guilty by reason of insanity of a 24 sexually violent offense is about to be released or has been released. 25 (b) Upon the filing of a petition, notice shall be provided to the person and the 26 court shall schedule a hearing within 72 hours at which the person has a right to 27 appear. At the hearing, the judge shall determine whether probable cause exists to 28 believe that the person named in the petition is a sexually violent predator. If probable 29 cause is found, the judge shall direct that the person be taken into custody, and the 30 person shall be transferred to an appropriate facility for an evaluation as to whether 31 the person is a sexually violent predator. The evaluation shall be conducted by a
01 person professionally qualified to conduct the examination assigned or retained by the 02 department. The results of the examination conducted under this section are 03 admissible in all further proceedings conducted under AS 47.30.816 - 47.30.824. 04 Sec. 47.30.819. Trial; rights of parties; determination; commitment 05 procedures. (a) Within 60 days following a judicial determination of probable cause 06 under AS 47.30.818, the court shall conduct a trial to determine whether the person 07 is a sexually violent predator. The trial may be continued upon the request of either 08 party and a showing of good cause or by the court on its own motion in the interests 09 of justice and when the person will not be substantially prejudiced. At all stages of 10 the proceedings under AS 47.30.816 - 47.30.824, a person who is the subject of a 11 petition filed under AS 47.30.818 is entitled to the assistance of counsel, and, if the 12 person is indigent, the court shall appoint counsel to assist the person. A person 13 examined under AS 47.30.818(b) may retain experts or professionals to perform an 14 examination on the person's behalf; the expert or professional shall be permitted 15 reasonable access to the person for the purpose of an examination, and to all relevant 16 medical and psychological records and reports. If the person is indigent, the court, 17 upon the person's request, shall determine if the services are necessary and the 18 compensation for those services is reasonable. If the court determines that the services 19 are necessary and the compensation for the services is reasonable, the court and the 20 person's counsel shall assist the person in obtaining an expert or professional to 21 perform an examination or participate in the trial on the person's behalf. Upon motion 22 of the person or the attorney general, or on the court's own motion, the trial shall be 23 before a jury. If no motion is made, the trial shall be before the court. 24 (b) The court or jury shall determine, beyond a reasonable doubt, whether the 25 person is a sexually violent predator. If trial is to a jury, the jury must make the 26 determination unanimously. Upon a determination that the person is a sexually violent 27 predator, the court shall consider less restrictive alternatives to confinement and 28 whether these alternatives, if any, will adequately protect the public so it is safe for 29 the person not to be confined and will prevent the person from committing a sexually 30 violent predatory offense. If the court determines that the less restrictive alternatives 31 will not (1) adequately protect the public so it would be safe for the person to be at
01 large, or (2) prevent the person from committing a sexually violent predatory offense, 02 the court shall order the person committed to the custody of the department for control, 03 care, and treatment until the person's mental illness has so changed that the person is 04 safe to be at large. If the court or jury is not satisfied beyond a reasonable doubt that 05 the person is a sexually violent predator, the court shall direct the person's release 06 from the custody of the department. 07 (c) If the person charged with a sexually violent offense has been found 08 incompetent to stand trial, is about to or has been released, and the person's 09 commitment is sought under this section, the court shall first hear evidence and 10 determine whether the person committed the act or acts charged. The hearing on this 11 issue must comply with the procedures specified in this section. In addition, the rules 12 of evidence applicable in criminal trials and all constitutional rights available to 13 defendants at criminal trials, other than the right to a jury trial and right not to be tried 14 while incompetent, shall apply. After hearing evidence under this subsection, the court 15 shall make specific findings on whether the person committed the act or acts charged, 16 the extent to which the person's incompetence affected the outcome of the hearing, 17 including its effect on the person's ability to consult with and assist counsel and to 18 testify on the person's own behalf, the extent to which the evidence could be 19 reconstructed without the assistance of the person, and the strength of the state's case. 20 If, after the conclusion of the hearing on this issue, the court finds, beyond a 21 reasonable doubt, that the person committed the act or acts charged, it shall enter an 22 order, appealable by the person, on that issue and may proceed to consider whether the 23 person should be committed under this section. A finding under this subsection that 24 the person committed the act or acts charged is not a conviction or a finding of guilt 25 for any purpose other than for consideration of commitment. 26 (d) The department shall confine a person who is ordered committed under this 27 section in a secure mental health facility. The department may contract with a public 28 or private entity inside or outside the state for the confinement of persons committed 29 under AS 47.30.816 - 47.30.824. Persons committed to the department shall be 30 segregated at all times from other persons under the supervision of the department. 31 The department may not confine a person committed under AS 47.30.816 - 47.30.824
01 in a correctional facility or institution operated by the Department of Corrections. This 02 subsection does not prohibit the department from confining a person committed under 03 AS 47.30.816 - 47.30.824 in a mental health facility operated by the department and 04 located within or on the grounds of a correctional facility. Persons confined in a 05 mental health facility within or on the grounds of a correctional facility shall be 06 segregated at all times from the inmates of the correctional facility. Following 07 confinement of the committed person, the department shall inform the person of the 08 person's rights under AS 47.30.821. The involuntary detention or commitment of a 09 person under AS 47.30.816 - 47.30.824 shall conform to the constitutional 10 requirements for care and treatment. 11 Sec. 47.30.820. Annual examination. The department shall provide an 12 examination of the current mental condition of a person committed under 13 AS 47.30.816 - 47.30.824 at least once each year. In addition to the annual 14 examination provided by the department, the person may retain or, if the person is 15 indigent and so requests, the court that committed the person may assist the person in 16 obtaining a qualified expert or a professional to examine the person, and the expert or 17 professional shall have access to all records concerning the person. The results of the 18 examinations shall be provided to the court that committed the person. 19 Sec. 47.30.821. Petition for release. (a) If the commissioner determines that 20 the person's mental illness has so changed that the person is safe to be at large and is 21 not likely to commit a sexually violent predatory offense if released, the commissioner 22 shall authorize the person to petition the court for release. The petition shall be served 23 upon the attorney general as the attorney for the state. The court, upon receipt of the 24 petition for release, shall order a hearing within 45 days. The state has the right to 25 have the petitioner examined by an expert or professional person of their choice. The 26 hearing shall be before a jury if demanded by either the petitioner or the state. The 27 burden of proof is upon the state to show beyond a reasonable doubt that the 28 petitioner's mental illness remains such that the petitioner is not safe to be at large and 29 that, if discharged, is likely to commit a sexually violent predatory offense. If the 30 hearing is before a jury, the jury must make this determination unanimously. 31 (b) This section does not prohibit the person from otherwise petitioning the
01 court for discharge without the commissioner's approval. The commissioner shall 02 provide the committed person with an annual written notice of the person's right to 03 petition the court for release over the commissioner's objection. The notice must 04 contain a waiver of rights. The commissioner shall forward the notice and waiver 05 form to the court with the annual examination. If the person does not affirmatively 06 waive the right to petition, the court shall hold a show cause hearing to determine 07 whether facts exist that warrant a hearing on whether the person's condition has so 08 changed that the person is safe to be at large and is not likely to commit a sexually 09 violent predatory offense if discharged. The committed person has the right to have 10 an attorney represent the person at the show cause hearing and, if the person is 11 indigent, the court shall appoint counsel to represent the person. The committed 12 person is not entitled to be present at the show cause hearing. If the court at the show 13 cause hearing determines that probable cause exists to believe that the person's mental 14 illness has so changed that the person is safe to be at large and is not likely to commit 15 a sexually violent predatory offense if discharged, the court shall set a hearing on the 16 issue. At the hearing, the committed person is entitled to be present and to the benefit 17 of all constitutional protections that were afforded to the person at the initial 18 commitment proceeding. The attorney general shall represent the state and has the 19 right to a jury trial and to have the committed person evaluated by experts chosen by 20 the state. The committed person may also have experts evaluate the person on the 21 person's behalf, and the court shall assist the person in obtaining an expert if the 22 person is indigent and requests the assistance. The burden of proof at the hearing is 23 upon the state to prove beyond a reasonable doubt that the committed person's mental 24 illness remains such that the person is not safe to be at large and, if released, is likely 25 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; regulations; immunity. (a) The 07 department is responsible for costs relating to the evaluation and treatment of persons 08 committed to its custody under the provisions of AS 47.30.816 - 47.30.824. 09 Reimbursement may be obtained by the department for the cost of care and treatment 10 of persons committed to its custody under AS 47.30.819. 11 (b) The department may adopt regulations to implement the provisions of 12 AS 47.30.816 - 47.30.824. The department shall consult with the Department of Law 13 and the Department of Corrections when adopting regulations. 14 (c) The state, agencies of the state, employees of agencies of the state, and 15 officials are immune from liability for conduct under AS 47.30.816 - 47.30.824 except 16 that this subsection does not preclude liability for civil damages as a result of gross 17 negligence or reckless or intentional misconduct. 18 Sec. 47.30.823. Release of information authorized. Notwithstanding any 19 other provision of law and in addition to any other information required to be released 20 under AS 47.30.816 - 47.30.824, the department may release relevant information that 21 is necessary to protect the public concerning a specific sexually violent predator 22 committed under AS 47.30.816 - 47.30.824. 23 Sec. 47.30.824. Definitions. In AS 47.30.816 - 47.30.824, 24 (1) "mental illness" has the meaning given in AS 12.47.090; 25 (2) "predatory" means that acts are directed towards 26 (A) strangers; 27 (B) individuals with whom a relationship has been established 28 or promoted for the primary purpose of victimization; or 29 (C) family members if the familial relationship has been 30 exploited for the purpose of victimization; in this subparagraph "family 31 member" means a person who
01 (i) is related up to the fourth degree of consanguinity, 02 whether of the whole or half blood or by adoption computed under the 03 rules of civil law; or 04 (ii) lives in the same household; 05 (3) "sexually violent offense" means an act that is 06 (A) a violation of AS 11.41.410, 11.41.420(a)(1), or 11.41.434 - 07 11.41.438, or a felony offense in this or another jurisdiction formerly, or 08 currently, having elements similar to AS 11.41.410, 11.41.420(a)(1), or 09 11.41.434 - 11.41.438; 10 (B) a violation of AS 11.41.100, 11.41.110, 11.41.200, or 11 11.41.300, or a felony offense in this or another jurisdiction formerly, or 12 currently, having elements similar to AS 11.41.100, 11.41.110, 11.41.200, or 13 11.41.300 if the state proves beyond a reasonable doubt, in civil commitment 14 proceedings under AS 47.30.816 - 47.30.824, that, during the course of the 15 offense, the person engaged in or intended to engage in sexual penetration, 16 sexual contact, or sexually gratifying conduct; or 17 (C) a violation of AS 11.31.100 - 11.31.120, or a felony offense 18 in this or another jurisdiction formerly, or currently, having elements similar 19 to AS 11.31.100 - 11.31.120, that is an attempt, criminal solicitation, or 20 conspiracy to commit one of the felonies designated in (A) or (B) of this 21 paragraph; 22 (4) "sexually violent predator" means a person who 23 (A) has been 24 (i) convicted of a sexually violent offense; 25 (ii) found to have committed a sexually violent offense 26 as a juvenile; 27 (iii) charged with a sexually violent offense and who 28 was determined to be incompetent to stand trial under AS 12.47.100; or 29 (iv) found not guilty by reason of insanity of a sexually 30 violent offense under AS 12.47.040; and 31 (B) suffers from a mental illness that makes the person
01 substantially likely to commit a sexually violent predatory offense. 02 * Sec. 2. APPLICABILITY. This Act applies to all acts committed before, on, or after the 03 effective date of this Act.