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: