CSSB 2(JUD): "An Act providing for civil commitment of sexually violent predators."
00CS FOR SENATE BILL NO. 2(JUD) 01 "An Act providing for 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 under AS 18.85 to represent the 13 person. A person examined under AS 47.30.818(b) may retain experts or professionals 14 to perform an examination on the person's behalf; the expert or professional shall be 15 permitted reasonable access to the person for the purpose of an examination, and to 16 all relevant medical and psychological records and reports. Upon motion of the person 17 or the attorney general, or on the court's own motion, the trial shall be before a jury. 18 If no motion is made, the trial shall be before the court. 19 (b) The court or jury shall determine, beyond a reasonable doubt, whether the 20 person is a sexually violent predator. If trial is to a jury, the jury must make the 21 determination unanimously. Upon a determination that the person is a sexually violent 22 predator, the court shall consider less restrictive alternatives to confinement and 23 whether these alternatives, if any, will adequately protect the public so it is safe for 24 the person not to be confined and will prevent the person from committing a sexually 25 violent predatory offense. If the court determines that the less restrictive alternatives 26 will not (1) adequately protect the public so it would be safe for the person to be at 27 large, or (2) prevent the person from committing a sexually violent predatory offense, 28 the court shall order the person committed to the custody of the department for control, 29 care, and treatment until the person's mental illness has so changed that the person is 30 safe to be at large. If the court or jury is not satisfied beyond a reasonable doubt that 31 the person is a sexually violent predator, the court shall direct the person's release
01 from the custody of the department. 02 (c) If the state files a petition under AS 47.30.816 - 47.30.824 to commit a 03 person who has been charged with a sexually violent offense and been found 04 incompetent to be tried for the offense, the trier of fact, in conjunction with the 05 commitment proceeding, shall make a determination beyond a reasonable doubt 06 whether the person committed the offense charged. The finding that the person 07 committed the offense may not be used for another purpose than for consideration of 08 commitment. If the trier of fact finds that the person committed the offense, the trier 09 of fact may proceed to determine whether the person is a sexually violent predator 10 under this section. 11 (d) The department shall confine a person who is ordered committed under 12 AS 47.30.816 - 47.30.824 in a secure treatment facility. The department may contract 13 with a public or private entity inside or outside the state for the confinement of persons 14 committed under AS 47.30.816 - 47.30.824. Persons committed to the department 15 under AS 47.30.816 - 47.30.824 shall be segregated at all times from other persons 16 under the supervision of the department and may not be confined in a state-operated 17 facility providing services to other persons under the supervision of the department. 18 The department may not confine a person committed under AS 47.30.816 - 47.30.824 19 in a correctional facility or institution operated by the Department of Corrections. This 20 subsection does not prohibit the department from confining a person committed under 21 AS 47.30.816 - 47.30.824 in a treatment facility operated by the department and 22 located within or on the grounds of a correctional facility or in a specialized secure 23 facility operated by the department on the grounds of a state-operated facility provided 24 the specialized secure facility provides services exclusively to persons confined under 25 AS 47.30.816 - 47.30.824. Persons confined in a treatment facility within or on the 26 grounds of a correctional facility shall be segregated at all times from the inmates of 27 the correctional facility. Following confinement of the committed person, the 28 department shall inform the person of the person's rights under AS 47.30.821. The 29 involuntary detention or commitment of a person under AS 47.30.816 - 47.30.824 shall 30 conform to the constitutional requirements for care and treatment. 31 Sec. 47.30.820. Annual examination. The department shall provide an
01 examination of the current mental condition of a person committed under 02 AS 47.30.816 - 47.30.824 at least once each year. In addition to the annual 03 examination provided by the department, the person may retain a qualified expert or 04 a professional to examine the person, and the expert or professional shall have access 05 to all records concerning the person. The results of the examination shall be provided 06 to the court that committed the person. 07 Sec. 47.30.821. Petition for release. (a) If the commissioner determines that 08 the person's mental illness has so changed that the person is safe to be at large and is 09 not likely to commit a sexually violent predatory offense if released, the commissioner 10 shall authorize the person to petition the court for release. The petition shall be served 11 upon the attorney general as the attorney for the state. The court, upon receipt of the 12 petition for release, shall order a hearing within 45 days. The state has the right to 13 have the petitioner examined by an expert or professional person of the state's choice. 14 The hearing shall be before a jury if demanded by either the petitioner or the state. 15 The burden of proof is upon the state to show beyond a reasonable doubt that the 16 petitioner's mental illness remains such that the petitioner is not safe to be at large and 17 that, if discharged, is likely to commit a sexually violent predatory offense. If the 18 hearing is before a jury, the jury must make this determination unanimously. 19 (b) This section does not prohibit the person from otherwise petitioning the 20 court for discharge without the commissioner's approval. The commissioner shall 21 provide the committed person with an annual written notice of the person's right to 22 petition the court for release over the commissioner's objection. The notice must 23 contain a waiver of rights. The commissioner shall forward the notice and waiver 24 form to the court with the annual examination. If the person does not affirmatively 25 waive the right to petition, the court shall hold a show cause hearing to determine 26 whether facts exist that warrant a hearing on whether the person's condition has so 27 changed that the person is safe to be at large and is not likely to commit a sexually 28 violent predatory offense if discharged. The committed person has the right to have 29 an attorney represent the person at the show cause hearing and, if the person is 30 indigent, the court shall appoint counsel under AS 18.85 to represent the person. The 31 committed person is not entitled to be present at the show cause hearing. If the court
01 at the show cause hearing determines that probable cause exists to believe that the 02 person's mental illness has so changed that the person is safe to be at large and is not 03 likely to commit a sexually violent predatory offense if discharged, the court shall set 04 a hearing on the issue. At the hearing, the committed person is entitled to be present 05 and to the benefit of all constitutional protections that were afforded to the person at 06 the initial commitment proceeding. The attorney general shall represent the state and 07 has the right to a jury trial and to have the committed person evaluated by experts 08 chosen by the state. The committed person may also have experts evaluate the person 09 on the person's behalf. The burden of proof at the hearing is upon the state to prove 10 beyond a reasonable doubt that the committed person's mental illness remains such 11 that the person is not safe to be at large and, if released, is likely to commit a sexually 12 violent predatory offense. 13 (c) If a person has previously filed a petition for discharge without the 14 commissioner's approval and the court determined, either upon review of the petition 15 or following a hearing, that the petitioner's petition was frivolous or that the 16 petitioner's condition had not so changed that the person was safe to be at large and 17 was not likely to commit a sexually violent predatory offense if discharged, the court 18 shall deny the subsequent petition unless the petition contains facts upon which a court 19 could find that the condition of the petitioner has so changed that a hearing is 20 warranted. Upon receipt of a second or subsequent petition from a committed person 21 without the commissioner's approval, the court shall review the petition and determine 22 if the petition is based upon frivolous grounds and, if so, shall deny the petition 23 without a hearing. 24 Sec. 47.30.822. Duties of department; regulations; immunity. (a) The 25 department is responsible for costs relating to the evaluation and treatment of persons 26 committed to its custody under the provisions of AS 47.30.816 - 47.30.824. 27 Reimbursement may be obtained by the department for the cost of care and treatment 28 of persons committed to its custody under AS 47.30.819. 29 (b) The department may adopt regulations to implement the provisions of 30 AS 47.30.816 - 47.30.824. The department shall consult with the Department of Law 31 and the Department of Corrections when adopting regulations.
01 (c) The state, agencies of the state, employees of agencies of the state, and 02 officials are immune from liability for conduct under AS 47.30.816 - 47.30.824 except 03 that this subsection does not preclude liability for civil damages as a result of gross 04 negligence or reckless or intentional misconduct. 05 Sec. 47.30.823. Release of information authorized. Notwithstanding any 06 other provision of law and in addition to any other information required to be released 07 under AS 47.30.816 - 47.30.824, the department may release relevant information that 08 is necessary to protect the public concerning a specific sexually violent predator 09 committed under AS 47.30.816 - 47.30.824. 10 Sec. 47.30.824. Definitions. In AS 47.30.816 - 47.30.824, 11 (1) "mental illness" has the meaning given in AS 12.47.090; 12 (2) "predatory" means that acts are directed towards 13 (A) strangers; 14 (B) individuals with whom a relationship has been established 15 or promoted for the primary purpose of victimization; or 16 (C) family members if the familial relationship has been 17 exploited for the purpose of victimization; in this subparagraph "family 18 member" means a person who 19 (i) is related up to the fourth degree of consanguinity, 20 whether of the whole or half blood or by adoption computed under the 21 rules of civil law; or 22 (ii) lives in the same household; 23 (3) "sexually violent offense" means an act that is 24 (A) a violation of AS 11.41.410, 11.41.420(a)(1), or 11.41.434 - 25 11.41.438, or a felony offense in this or another jurisdiction formerly, or 26 currently, having elements similar to AS 11.41.410, 11.41.420(a)(1), or 27 11.41.434 - 11.41.438; 28 (B) a violation of AS 11.41.100, 11.41.110, 11.41.200, or 29 11.41.300, or a felony offense in this or another jurisdiction formerly, or 30 currently, having elements similar to AS 11.41.100, 11.41.110, 11.41.200, or 31 11.41.300 if the state proves beyond a reasonable doubt, in civil commitment
01 proceedings under AS 47.30.816 - 47.30.824, that, during the course of the 02 offense, the person engaged in or intended to engage in sexual penetration, 03 sexual contact, or sexually gratifying conduct; or 04 (C) a violation of AS 11.31.100 - 11.31.120, or a felony offense 05 in this or another jurisdiction formerly, or currently, having elements similar 06 to AS 11.31.100 - 11.31.120, that is an attempt, criminal solicitation, or 07 conspiracy to commit one of the felonies designated in (A) or (B) of this 08 paragraph; 09 (4) "sexually violent predator" means a person who 10 (A) has been 11 (i) convicted of a sexually violent offense; 12 (ii) found to have committed a sexually violent offense 13 as a juvenile; 14 (iii) charged with a sexually violent offense and who 15 was determined to be incompetent to stand trial under AS 12.47.100; or 16 (iv) found not guilty by reason of insanity of a sexually 17 violent offense under AS 12.47.040; and 18 (B) suffers from a mental illness that makes the person 19 substantially likely to commit a sexually 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.