SB 216 - CIVIL COMMITMENT OF SEXUAL PREDATORS CHAIRMAN TAYLOR next called upon Donald Stoltz to present SB 216 to the committee. DONALD W. (BILL) STOLTZ, legislative administrative assistant to Senator Rick Halford, came forward to present the bill on behalf of the sponsor, noting that during a previous hearing the committee requested him to work with the bill drafters, the Department of Law, and other agencies to address some of the concerns that had arisen during testimony. He noted that the latest work draft was 0-LS1134\F, dated 4/13/98. The major changes to this version are that it includes stepchildren, corrects a technical omission on the last page by including the word "substantially" before "likely", and, at the request of the Department of Law, develops the criteria through regulation rather than in statute. SENATOR MIKE MILLER made a motion to adopt Version F, Luckhaupt, dated 4/13/98, as a work draft. There being no objection, it was so ordered. Number 305 MR. STOLTZ indicated the sponsor received fiscal notes since the previous meeting that almost belie an intent to not make this work. He said the bill allows quite a bit of discretion as to how these people are screened. Conversations with the chief prosecutor indicate she would probably take a slow, careful look at this in developing perhaps one case over an extended period; it would be a case she could likely win and for which she could lay good groundwork and set a good precedent. Mr. Stoltz questioned the validity of the fiscal notes, particularly the one from the Alaska Psychiatric Institute (API). He characterized this civil commitment statute as a specialized tool for the prosecutor, adding, "And any workman knows you don't use every tool on every single job." Mr. Stoltz said they are looking at an egregious class of criminals. He emphasized the amount of discretion given to the department when screening and implementing the bill, and again questioned whether there would be runaway costs. Number 324 SENATOR JOHNNY ELLIS referred to page 9, line 29, subsection (b), which says, "suffers from a mental illness that makes the person substantially likely to commit a sexually violent predatory offense." Noting that the word "substantially" is new, he asked Mr. Stoltz to explain its origin and meaning. MR. STOLTZ replied that "substantially" had been omitted through an oversight in the original draft. He suggested that the likelihood to commit an offense would be determined through the screening process of the Department of Corrections, the Department of Health and Social Services, and the Department of Law, probably including a psychiatric overview and other determinations by professionals in the prosecution arm of law enforcement. SENATOR ELLIS asked whether it is well known in the field that some mental illnesses make a person substantially likely to commit these kinds of offenses, whereas other mental illnesses do not. CHAIRMAN TAYLOR suggested that "likely to commit" is far too broad a standard to be measurable. He said he doesn't know that "substantially" sufficiently narrows it but it has a significant narrowing effect. In his reading of it, perhaps a person has a greater than 50 percent chance of recidivism, as opposed to a 5 or 10 percent chance. He advised a stronger word or one with a clearer definition may be appropriate. SENATOR ELLIS responded that it goes to the sponsor's intent as to how broad a net to cast. He referred to the definitions section, beginning on page 8, and what goes into defining "predatory." He specifically asked about subsection (i), which read in part, "is related up to the fourth degree of consanguinity," and he asked the lay person's term for that. CHAIRMAN TAYLOR said it is a second cousin. MR. STOLTZ said he would feel more comfortable if the drafter, Anne Carpeneti, and Cynthia Cooper of the Department of Law formulated this criteria. He emphasized the desire to have the screening done by professionals, not in a political arena. Number 378 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He said he and Director Barbara Brink had carefully looked over the bill and put in the fiscal note some of the questions and problems that might arise. He agreed with Mr. Stoltz that the prosecutors would probably pick the first case carefully, noting that it will involve quite a lot of litigation. He emphasized that this is a major departure in Alaska, where criminal confinement is usually based upon some act or conduct that occurred, rather than upon predictions of future dangerousness; he said that is certainly a concern about the bill. For example, do the mental health professionals who will have to make this difficult determination think they have enough knowledge to do so? He indicated his agency has some real questions about that after reading the American Psychiatric Association Task Force report and other documents. MR. McCUNE said the premise of the bill is that there is a small but extremely dangerous group of sexually violent predators who don't have a mental disease or defect that would allow an involuntary commitment. Although the Department of Law and others had worked hard on these definitions, the definition of "sexually violent offense" is still fairly broad. Mr. McCune referred to page 9, 3(A) and (B), noting that it would include sexual contact. Under (C), even a conviction for an attempt at sexual contact could be a predicate for commitment if the person is also found, beyond a reasonable doubt, to be substantially likely to engage in predatory conduct in the future. He urged the committee to look carefully at these sections, suggesting "violent predator" brings something to mind that might not fit the definition. MR. McCUNE next characterized definition (1) which refers to AS 12.47.090 as broad (page 8). Reading from that, he said it means any mental condition that increases the propensity of the defendant to be dangerous to the public peace and safety; however, it is not required that the mental illness be sufficient to exclude criminal responsibility or that it be the same one that the defendant suffered at the time of the criminal conduct. Mr. McCune indicated this is a bit of a circular definition, explaining, "You're looking at somebody who might be dangerous because they might be dangerous, as a result of a mental condition." He said he doesn't know exactly what "mental condition" means, excludes or doesn't exclude; this is not what is traditionally known as a mental illness or a major mental illness in other statutes, in other contexts. Mr. McCune stated the belief that this would have a fairly significant impact. Referring to the introductory part of the bill, he pointed out that these can involve a lifetime of commitment if someone is not found treatable or cannot be certified as safe to be at large. The resources that would go into this would be commensurate with what is at stake for a person. MR. McCUNE told members there are additional items, not included in the fiscal note, that would be difficult to quantify. For example, they would expect a lot more trials involving these listed cases, as people would hesitate to plead "no contest" because of the threat of a possible commitment hearing after serving jail time. Number 441 CHAIRMAN TAYLOR asked whether Mr. McCune had checked on the actual impact on the public defender agency in Washington State, which has had similar legislation for some time. He expressed his own understanding that there was no dramatic increase there, but rather a handful of cases despite a population much larger than Alaska's. MR. McCUNE answered that they had not checked with other states. Although the Department of Law's figures indicate there would not be many cases prosecuted, there would be quite a lot of public pressure to bring a proceeding if someone likely to be released from jail had committed one of the more serious offenses listed. CHAIRMAN TAYLOR suggested Mr. McCune check on that before explaining the fiscal note before the Senate Finance Committee. He said he himself was more concerned with substantive, rather than fiscal, aspects of the bill. He asked whether Mr. McCune had an opportunity to check Washington State law; he believed a rather famous case there went to the supreme court. MR. McCUNE replied that he had reviewed that law, although he couldn't recall the defendant's name. The Washington Supreme Court, after years of litigation, had approved the law. As he recalled, it then went to federal district court, where the judge felt it was an ex post facto law; he believes it is now in the 9th Circuit Court of Appeals. That was all before the Kansas v. Hendricks case came out. Mr. McCune said he had looked over the Kansas law and the Washington law, and he hadn't seen many differences between them. CHAIRMAN TAYLOR asked whether he meant differences between them and the law currently before this committee. MR. McCUNE stated his understanding that the proposed legislation is essentially based on the Kansas law, suggesting Ms. Cooper and Mr. Guaneli from the Department of Law could better explain the origins. RANDALL BURNS, Director, Alaska Psychiatric Institute (API), Division of Mental Health and Developmental Disabilities, Department of Health and Social Services (DHSS), noted via teleconference that he and Dr. Osbeck (ph) were available to answer questions. He pointed out that Karl Brimner, Northern Regional Mental Health Services Coordinator, was at the meeting on behalf of the division. Number 483 WALTER MAJOROS, Executive Director, Alaska Mental Health Board, came forward to testify. He reminded members that a staff person from his agency had testified at the previous hearing. He said the board's formal position is that issues regarding sexual predators are more effectively addressed through the criminal system than through the civil system; however, if an issue is addressed through the civil system, various safeguards need to be in place. He would address two of those safeguards, about which the board is still very concerned even with the latest iteration of the bill. MR. MAJOROS told members the first safeguard is where the treatment will take place. There has been some broadening in terms of the capability to send sexual predators outside the state of Alaska to receive treatment, which he believes is good. However, the board's concern is that the treatment not take place at API for a number of reasons; to that end, they suggest that language be introduced to disallow treatment at API. One reason, pointed out in the bill, is that the profile of a sexual predator is very different from that of someone who is truly mentally ill with a brain disorder. Sexually violent predators have anti-social behavioral disorders that require different treatment approaches than those used for mental disorders. MR. MAJOROS said second is the safety issue. Sexual predators need to be physically separated from people who are more vulnerable, as mentally ill people with brain disorders are, and the security needs for sexual predators are much higher. Third, API has been undergoing a process with the board, the division, the department, and the Alaska Mental Health Trust Authority to further downsize. Right now it has 79 beds; under the new plan, there will be 54 beds. Already the average length of stay has been reduced to a very short period and people have to leave the institution to make room for new people. If a new population were superimposed, those with true mental illnesses may not be able to receive the services or will be there for only a day or two; they would be put out in the streets before being effectively stabilized and before being able to be successful in the community. The board's strong preference is that the bill disallow treatment of sexually violent predators at API, for the integrity of the mental health system. MR. MAJOROS next addressed funding, saying the board's position is that this is a public safety issue. Public safety funds should be earmarked for this, and they do not believe it is appropriate that the funding for services to sexually violent predators come out of the mental health system. Resources within the mental health system need to be targeted for mentally ill persons with brain disorders, as well as children with serious emotional disturbances. There is a movement now to provide increasing services within the community and away from institutionalization. However, if those funds were used for this purpose, movement in the other direction would occur. He pointed out that there are still many unmet needs in the mental health system. MR. MAJOROS told members sexually violent predators would be there for a very long time. Although there might be a couple of people the first year, after several years there would be an increasing population that would, in turn, jeopardize more and more funding from the public mental health system needed by people who have true mental illnesses and children with serious emotional disturbances. He concluded, "So, our two main points are: Please don't allow treatment at API, and please fund this through public safety and criminal justice resources, and not public mental health resources." Number 535 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault (CDVSA), Department of Public Safety, came forward to testify in support of the bill, especially the tightening that had occurred with the work draft. At the same time, the CDVSA echoes the concerns expressed by the mental health community. She reminded members that sexually violent predators don't share the same problems and concerns of someone who is mentally ill in the more traditional sense. She cautioned about being careful where these offenders are placed and how they are treated, so as not to put others at risk by placing them at API, for example. MS. ANDREEN pointed out that sex offenders can never truly be cured of their disorder or criminal behavior or violent tendencies; at most, they can be taught to control those tendencies. However, both in Alaska and elsewhere in the country, the correctional system has been able to consistently identify a small percentage of offenders who are so violent that the system doesn't want them released. The CDVSA believes the current work draft is tightened up enough to provide that safety net for the most severe offenders. Number 549 ANNE D. CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, came forward to testify, agreeing with Mr. McCune that this is a significant step in Alaska law. She said it had been their concern all along to work with the sponsor to ensure that the step is taken carefully and with a narrow focus. They had worked with the sponsor to limit the definition of sexually violent offenses to those that seem to be committed by people who are dangerous or likely to repeat the offense, and perhaps it could be looked at further to limit it more. It was the department's suggestion to change "likely" to "substantially likely" in the definition of "sexually violent predator." MS. CARPENETI acknowledged these terms are hard to define. She told members she interprets "likely" in terms of a civil case to be "more likely than not," whereas "substantially likely" is significantly higher. In order to prove a person is a sexually violent predator, the state would have to prove beyond a reasonable doubt, to a jury of 12 who would have to reach a unanimous finding, that a person is substantially likely to commit these acts again. MS. CARPENETI said she would go through Version F and explain some of the changes they had suggested which had been incorporated in the draft. She noted that the Department of Corrections will generally be the agency with custody, although the Division of Mental Health and Developmental Disabilities (Mental Health) would have custody of people who had been found incompetent to be tried, as well as others. Generally, the Department of Corrections will be doing the initial screening of the group of people convicted of sex offenses who are about to be released. On page 2, lines 14 - 17, a new provision provides that when the Department of Corrections is looking at these people, the criteria will be developed by Mental Health in consultation with the Department of Law and the DHSS. MS. CARPENTI advised members there was another amendment that the Department of Law had requested be added, and that a conversation with Mr. Stoltz had indicated there was no problem. She asked whether it was in committee packets. MR. STOLTZ indicated he had thought Ms. Carpeneti was going to present it. MS. CARPENETI explained they wanted to add a provision on page 2, line 21, at the end of the line, to provide that the screening standards of people referred from the agency with custody would be developed by the department in consultation with the Department of Law and the Department of Corrections. She indicated she had that in writing. CHAIRMAN TAYLOR said he would have copies run off to distribute to committee members. MS. CARPENETI told members that on page 3, line 29, there was one other amendment they would suggest. She said after the probable cause hearing a person would be given a formal evaluation by a professional. She suggested eliminating "under regulations adopted by the department" because this draft contains a general regulation section therefore, she doesn't believe it needs to specifically refer to regulations for this particular decision. TAPE 98-37, SIDE B Number 001 MS. CARPENETI specified that following the word "examination," the words "assigned or retained by the department" would be added. She said it may or may not be a person already employed by the state. Throughout the original bill it refers to the person that the state is petitioning to have civilly committed as being represented by the Office of Public Advocacy. Ms. Carpeneti indicated Ms. Brink had testified that the Public Defender Agency would probably be representing these people; therefore, the Department of Law requested that reference be eliminated. Ms. Carpeneti pointed out that in other civil commitment procedures, the Public Defender Agency represents the person that the state is seeking to have civilly committed. Just one example could be found on page 4, line 8, of the work draft. In response to a question, she agreed that it is not a new amendment, but rather a cleanup in the work draft. CHAIRMAN TAYLOR referred members to the amendment suggested by Ms. Carpeneti for page 2, line 21. SENATOR ELLIS made a motion to adopt Amendment 1, which read: Page 2, line 21: Following "sexually violent predator." insert: "The standards for screening persons referred under (a) of this section shall be adopted by the department in consultation with the departments of law and corrections." CHAIRMAN TAYLOR asked whether there was any objection. There being none, Amendment 1 was adopted. Number 030 SENATOR ELLIS offered as Amendment 2 the following: On page 3, line 29, following "examination", the words "under regulations adopted" would be replaced by "assigned or retained." There being no objection, Amendment 2 was adopted. Number 040 MS. CARPENETI next referred to page 8, lines 29-31. She stated,"I believe this is an addition, duties of the department and their regulations - it's a general regulation authority for the Department of Health and Social Services." CHAIRMAN TAYLOR suggested it is the same thing just added by Amendment 1. MS. CARPENETI agreed, then asked whether subsection (C) is new in this draft. Hearing no response, she said she believes it may be in the original bill. She noted that it is a statement that as long as public officials are acting in good faith, they cannot be found liable for their actions under this law. CHAIRMAN TAYLOR said he had noted it earlier. MS. CARPENETI again referred to page 8, lines 29-31. She said this is not the Department of Law's language; she believes it was added by legislative legal counsel. She told members that in talking about fourth degree of consanguinity, she believes it refers to first cousins, not second cousins, counting up to a common ancestor and then counting down; it would include grandparents and grandchildren, and she believes it would include great- grandchildren. CHAIRMAN TAYLOR stated there are two different ways to count it: civil law and church law. He suggested Ms. Carpeneti was doing it according to church law, which is the way most family trees are traced. MS. CARPENETI said she doesn't believe there are any additional changes to the definitions section from the previous draft. She said it does include the "substantially likely" that was supposed to be in the prior draft but which was omitted through an oversight. SENATOR ELLIS asked Ms. Carpeneti to explain page 8, line 24, subsection (b), which read in part, "individuals with whom a relationship has been established or promoted for the primary purpose of victimization". MS. CARPENETI replied this is a common definition that other states have in their statutory scheme for a predator. She said it is a "grooming" activity, where a person establishes a trusting relationship with an individual, such as a child. SENATOR ELLIS suggested it would be a pedophile who obtains a job at a day care center, for instance. MS. CARPENETI agreed that would be a good example. Another example would be making friends with children in one's neighborhood by offering them candy and establishing trust in a number of ways, getting them to feel comfortable enough to go into one's house or into a situation where they can be victimized. SENATOR ELLIS asked whether Ms. Carpeneti suggested adding the language, "lives in the same household". Number 068 MS. CARPENETI said yes. She explained, "It was our suggestion that for the very serious family sexual abuse cases, we would want to be able to have this tool available to us, because there have been in the past, in our state, some very, very serious familial sexual abuse cases." SENATOR ELLIS asked for confirmation that the definition of "sexual predator" doesn't rely on the number of victims. MS. CARPENETI answered that generally there would be more than one act, although the bill requires only one prior conviction. SENATOR ELLIS asked whether someone could be a sexual predator even if that person had preyed upon one person. MS. CARPENETI replied that it is possible, but it is unlikely the state would be able to prove, beyond a reasonable doubt, that a person is substantially likely to do it again if there is only one victim, with one conviction, and there isn't evidence of other acts. SENATOR ELLIS asked about the language, "lives in the same household". He asked what would have to happen to make a sexual predator of a member of one's own family. MS. CARPENETI replied, "Well, their own family, it's just the family relationship. But the 'lives in the same household' was to address situations where people will establish relationships with other people who have children, in order to make their children available as victims. And it doesn't have to be a marriage situation between the adults, but it could be a live-in situation. And it doesn't have to be a formal adoption or assumption of the child as a stepchild, but it is often a live-in relationship where the child is then available as a victim for the predator." Number 088 SENATOR ELLIS asked about the overlap between mentally ill people and sexual predators. He further asked whether all sexual predators are mentally ill. MS. CARPENETI acknowledged it is a difficult issue. She advised members that the U.S. Supreme Court decision in Kansas v. Hendricks approved the Kansas procedure - which is based on the Washington statute and upon which this is also based - on the fact that this individual is mentally ill, although the Kansas statute may use a different term besides "mentally ill." The decision turned on a person who is dangerous because of past acts and, in addition, suffers from another condition that makes him or her likely to victimize people again. MS. CARPENETI mentioned that different terms could be used. The Department of Law had suggested "mentally ill" as defined in Title 12 because it is a broad definition. She said people in the mental health field will suggest that there are better definitions. As Senator Pearce said, this is perhaps a criminal law definition of "mentally ill." SENATOR ELLIS brought up the issue of people going to API and crowding other people out for limited services. He said he was trying to get a feel for how many people convicted under this would appropriately go to API, and who should go to a forensic unit of a regular prison, and who should go outside of Alaska for some sort of high-security mental health treatment. Number 114 KARL BRIMNER, Director, Division of Mental Health and Developmental Disabilities, DHSS, stated, "I think an attempt at that would be to say that those individuals who would be going to API are going to API for mental illnesses, major mental illnesses that we consider in terms of brain disorders, such as bipolar, schizophrenia, major depression, and are usually going there because of a psychotic episode. Very seldom will you find someone who falls into the categories that we're talking about here today, with regards to this bill, [is] psychotic, first of all. ... Secondly, they usually do not experience a major mental illness, and if they do, they probably would qualify under the existing Title 47, involuntary commitment. This particular bill as I understand, it tries to protect the public in terms of a behavior that exists that cannot be controlled by this individual. They don't respond to treatment very well. It's not traditional treatment that can be offered to these people, that would be offered, say, for instance, in a psychiatric hospital such as API. It takes a very specialized treatment, and the success of that treatment is very limited, unfortunately." SENATOR ELLIS asked if people who commit serial sex crimes are not, for the most part, mentally ill. MR. BRIMNER replied, "Typically not, no. ... Not as we've discussed it outside of criminal law. That's correct." Number 146 CHAIRMAN TAYLOR emphasized that this legislation is not about a criminal sanction but rather has to do with a civil commitment to try to provide this individual with the very best the state has to offer as treatment. He stated, "Now, the fact that we may not be successful in a very high percentage of those cases is probably not relevant, except to the extent that we all pray that we will be more successful in the future. The important subject that I think is crucial, at least from my perspective as chairman of this committee, is that we focus upon the need to provide protection, both for them and for society, from the acts that they carry out. And attempting to decide how many angels can dance on the head of a pin, whether it's criminal or whether it's more criminal or more civil in nature, really does not address the issue. The issue is one of whether or not this person is suffering from a problem, whatever that problem might be, and whether or not they need protection." CHAIRMAN TAYLOR continued, "I often think of the situation, I believe, that will occur. I believe our courts are, at best, an attempt at times to prevent blood feuds. And hopefully we succeed more often than we fail. But in this instance, where you have a sexually violent predator who is preying upon the public, for the sake of the predator, you have to hope that the police get there first. In Alaska today, the opportunity for someone to take the law in their own hands would be abundantly available. And as a consequence, I think we need to remember that these people also need some level of protection, just as our society does, and that's why we have civil commitment available to us. My only concern at this juncture is that we very carefully define the terms, and that's what Senator Ellis was attempting to elicit, I believe, is those terms under which people may fall within a given category. And the debate about whether the -- the turf battle over whether or not API is going to pay for it, or the Mental Health Trust is going to pay for it, or the general fund budget of the state is going to pay for it in some other fashion, is really kind of irrelevant. The question is: Does this person need protection, and does society need protection, and should we not give them the greatest level of help and care that we can, to hopefully turn them around and change them." MS. CARPENETI stated the findings section in the bill says sexually violent predators don't tend to respond to treatment that is normally provided for mentally people, but they do suffer from a mental illness, mental abnormality or mental condition that makes them dangerous. She referred to the previous draft and said that in order to withstand constitutional challenge, she believes these people have to be treated. In addition, the bill provides that they must be in a place separate from other mentally ill people and separate from prisoners in a correctional facility. CHAIRMAN TAYLOR restated that it is for the protection of themselves and others. He expressed hope that a cure may be forthcoming in the future, stating his belief that most of it is caused by a mental imbalance caused by chemistry. Number 178 SENATOR ELLIS asked Ms. Carpeneti whether it is more likely than not that people who would be affected by this would have already served time in a regular prison for these offenses, and that this is a mechanism for the public to put these people away from the public after release from their sentences. MS. CARPENETI said she believes it will mainly apply to people who are serving a sentence after conviction of an offense, and who are getting close to their release date. Number 191 SENATOR ELLIS asked whether it is not an option, then, for someone charged with such a crime. He further asked whether there is any ability to defer to this procedure in lieu of criminal prosecution. MS. CARPENETI replied that she believes it depends on whether the person has already been convicted of a sexually violent offense. She explained, "If we could prove beyond a reasonable doubt that this is a sexually violent predator, that option is available, but it would be unlikely that we would not proceed with the criminal prosecution." SENATOR ELLIS asked whether a person could "self-elect" this track - for example, when that person had been convicted previously, had served time, had been released, and then committed another act - rather than going to jail where there is no hope of treatment. MS. CARPENETI replied that such a person might want to, but she believes the state would proceed with a criminal prosecution if there was evidence to convict the person. Then, at the end of the sentence, the state would look at the possibility of civil commitment. SENATOR ELLIS asked whether it would not be attractive to be able to say, "Okay, this fellow agrees, he's not going to contest this, and we can civilly commit, based on the evidence, rather than convicting him and putting him away for three years." MS. CARPENETI answered that the bill before the committee doesn't allow the state to put a person away indefinitely. The person has a right to an annual examination by a psychiatrist, and the right to petition the court for release. She said that involves another procedure whereby the state has to prove, beyond a reasonable doubt, that this person is still dangerous. SENATOR ELLIS responded that if it is voluntarily, theoretically that person wouldn't exercise those rights of review. MS. CARPENETI said she couldn't imagine allowing a person to elect that procedure if he or she has committed a crime that the state would prosecute. Nothing addresses that issue in this bill. She said she could ask her superiors, but that she believes they would go ahead with the criminal prosecution and then look at the civil commitment at the end of the sentence, because that is what this bill does: It addresses end-of-sentence dangerousness and civil commitment at that point. SENATOR ELLIS asked whether there is any automatic review envisioned for setting this process in motion. MS. CARPENETI explained that the bill right now provides that the agency with custody - and most of the time it will be the Department of Corrections - three months before the person is about to be released will review sex offenders and apply criteria adopted in consultation with the DHSS, to do the initial screening to decide who meets these criteria and refer to the DHSS for a more in-depth screening procedure. After that screening is complete, the Department of Law will be notified that this person meets the screening standards of the DHSS. Even if they concur that the standards have been met, the Department of Law will then review each individual case. Ethically, the Department of Law cannot file a petition unless it is believed a jury can be convinced, beyond a reasonable doubt, that the person is a sexually violent predator. She added that, in addition to screening standards, medical issues and mental health issues, evidentiary issues needed to be looked at. SENATOR ELLIS asked how a relative of a victim, concerned community council president or other member of the public would make his or her views known. MS. CARPENETI replied that she felt the Department of Law could be contacted, adding that the victims of crimes are one of the major groups of witnesses in Washington. SENATOR ELLIS asked if victim notification was required under victims' rights legislation prior to the release of the offender. CHAIRMAN TAYLOR recalled a case in Miami, Florida, where a prostitute with full-blown AIDS was still on the streets to support her crack cocaine habit. The judge had given her maximum sentences each time she was picked up so that he could hold her for 90 days; however, he could not hold her longer. Chairman Taylor asked if this type of person would fall under this definition. MS. CARPENETI responded that she did not believe prostitution was included in the definition of a sexually violent offense in this particular bill. CHAIRMAN TAYLOR questioned whether it would have to be either a non-consensual act or an act that was based on some sort of coercion. MS. CARPENETI clarified that, for adult victims, the bill defines "sexually violent offense" to be "sexual assault in the first degree," and "contact without consent" to be "sexual assault in the second degree." For child victims, she further added, this would include sexual abuse of a minor in the first, second and third degree. CHAIRMAN TAYLOR added that consent is probably not given if the person engaging in the activity does not fully understand the consequences. SENATOR ELLIS brought up the conceptual amendment proposed by Mr. Majoros to disallow commitment for these offenders at API. He stated that he was certain funding would be discussed in the Finance Committee; however, he wanted to make sure Mr. Majoros knew that he was heard on this matter. Number 296 SENATOR RICK HALFORD expressed appreciation to the committee and the Administration for consideration of this bill. He acknowledged that it is a very expensive, difficult, complex and technical tool. He further added that he would expect this to be used only in very rare cases; broad application would be prohibitive to the rest of our systems. SENATOR HALFORD stated, "I think we know, with at least some of these people, that they are going to reoffend. They say they are going to reoffend. Everyone around them says they are going to reoffend. Everyone in a professional relationship in any kind of administrative capacity knows that they are going to reoffend. So, their time is probably going to be spent in some kind of confinement. The only difference that we can make is the number of victims they contact. This is an effort so that, at least when the very worst of them are well-known, documented and can go through the process, we may be able to save some victims from a life- destroying experience." SENATOR HALFORD added that the fiscal note could entail a large number of people or very small number of people; however, the bill is not intended to be a mandatory Act on the part of the Administration. These cases would come out of the system at the rate that they decide to bring them out of the system. He felt this tool would remain in inventory, be used very seldom, and be very expensive when it is used. He again acknowledged the difficulties involved in working this bill through, but stated, "I don't want to see the newspaper articles that we have seen from some other states where virtually everyone involved was able to predict the outcome in every detail except the name of the next victim." Number 329 SENATOR ELLIS expressed appreciation for the sponsor's work and intent, but questioned whether public pressure would be to cover this application too broadly, to every sex offender nearing the end of his or her sentence, without regard for resources or strains on the system in other areas. SENATOR HALFORD concurred that the standard of application is incredibly high. He added that the standard of outcome would have to be proven beyond a reasonable doubt to an entire jury, and that it would be foolish to try this on anything but the very worst cases. Number 346 SENATOR ELLIS expressed concern that the public not be given false hope. He has attended numerous community councils where the emphasis is on "putting away" these sex offenders. He feels this would be a tool in place, but feels its application would be more limited. Number 358 SENATOR HALFORD stated that he agreed with Senator Ellis. He offered an analogy: "It's like the hypothetical -- coming up with a new vaccine for a horrible disease. The only problem is that it costs $10 million for each person treated. Should we announce it or not?" CHAIRMAN TAYLOR asked for further questions, discussion or witnesses. SENATOR MIKE MILLER moved to report the work draft, Version F, 0- LS1134/F, Luckhaupt, 04-13-98, as amended, out of committee with individual recommendations. There being no objection, CSSB 216(JUD) moved from the Senate Judiciary Committee.