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SPONSOR: |
Carraro |
DATE TYPED: |
|
HB |
|
||
SHORT TITLE: |
Sexual Predator Civil Commitment Act |
SB |
21 |
||||
|
ANALYST: |
Fox-Young |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
Significant $0.1 |
Recurring |
General
Fund |
(Parenthesis ( )
Indicate Expenditure Decreases)
Relates to HB 165, SB 88, HB 42
Responses
Received From
Department of Health (DOH)
Corrections Department (CD)
Public
Defender Department (PDD)
Children
Youth and Families Department (CYFD)
Administrative
Office of the Courts (AOC)
Administrative
Office of the District Attorneys (AODA)
Attorney
General (AG)
SUMMARY
Synopsis
of Bill
·
Senate Bill 21 enacts
the “Sexual Predator Civil Commitment Act,” creating a
separate involuntary civil commitment process for the potentially long-term
control, care and treatment of sexually violent predators.
·
The bill defines
“sexually violent predator” as “ a person who has been convicted of or charged
with a sexually violent offense and who suffers from a mental abnormality or
personality disorder that makes the person likely to engage in repeat acts of
sexual violence and who has a serious difficulty in controlling his behavior.”
·
A “sexually violent
offense” means (1) criminal sexual penetration; (2) sexual exploitation of
children; (3) criminal sexual contact in the fourth degree; (4) criminal sexual
contact of a minor; (5) incest; (6) aggravated indecent exposure; (7) child
luring; (8) an attempt, conspiracy or criminal solicitation of an offense
described above; (9) any conviction for a felony offense that is essentially
the same for which the person was convicted for in another state; and (10) any
other crime, that either at the time of sentencing or during subsequent civil
commitment proceedings that is determined beyond a reasonable doubt to have
been sexually motivated.
Significant
Issues
The
bill establishes an involuntary commitment process, independent of the New
Mexico Mental Health and Developmental Disabilities Code, for certain “sexually
violent predators,” regardless of age, including those who have already served
a sentence.
At present,
The bill raises significant
issues involving the rights of the sexual predator, due process considerations,
authority to review a commitment, allocation of
resources for the determination of sexual predator status and the treatment and
housing of sexual predators. The bill
anticipates coordinated efforts by law enforcement agencies, the Department of
Health (DOH), district attorneys, district courts, the Attorney General (AG),
and mental health professionals.
DOH refers to the
experience of the state of
The
AG and DOH each make reference to Kansas v. Hendricks, 521 U.S. 346
(1997) and Kansas v. Crane, 534 U.S. 407 (2002), the United States
Supreme Court interpretation of the
AG
also indicates
DOH notes that the bill contains a savings clause intended to address problems of conflict of laws and constitutionality; however, a large proportion of mental health and forensics professionals have serious reservations regarding the validity and effectiveness of evaluations to determine propensity for violence and sexual predation.
FISCAL IMPLICATIONS
There is no appropriation
in the bill to cover the many significant costs it invites. These costs include investigation,
litigation, appeal, experts and provision of counsel for the alleged predator.
Treatment and security costs of in-patient mental health treatment in what is
an essentially forensic hospital setting are extremely high. DOH reports that
states have cited average costs of several hundred thousand dollars to complete
commitment proceedings for a single individual.
The greatest fiscal impact will be felt at
DOH. If the court or jury determines
that the person is a sexually violent predator, the person is committed to the
custody of DOH for control, care and treatment until such time that the
committed person’s mental abnormality or personality disorder is reversed. DOH would
likely need a significant increase in clinical and administrative staff to
carry out the provisions of the bill. DOH
is responsible for:
Fiscal
implications at CD may also be significant. The department may be required to
DOH
notes that the state would have to make resources available to build separate
secure state facilities for males and females.
The AG and the courts will carry a significant burden in implementing the enforcement and review provisions of the bill. To do this effectively, these agencies will likely need additional attorneys, legal support staff, and administrators. The bill’s provision that any party may demand a twelve-person jury trial creates the potential for enormous costs. The following consequences of the bill will have a significant impact on these agencies:
·
Any emergency ex parte orders.
The state will provide
counsel and the necessary expert witnesses to indigent persons in the required
civil proceedings.
This bill will have a minimal fiscal impact on district attorneys and the Public Defender Department (PDD).
RELATIONSHIP
Relates to SB 88 and nearly duplicates HB 165 (technical
differences). Unlike SB 21, SB 88 does not require that a person have “a
serious difficulty in controlling his behavior,” to be defined as either
“likely to engage in repeat acts of sexual violence” or as a “sexually violent
predator.” SB 88 also has no effective
date. Relates to HB 42 (provides for
life imprisonment of certain sex offenders).
TECHNICAL ISSUES
DOH notes that there
is potential conflict with the state statutory scheme for the evaluation and
commitment of dangerous individuals determined to have mental retardation and
not competent to stand trial (see Section 31-9-1.6 NMSA 1978) and related
statutes for diversion of developmentally disabled persons from the criminal
justice system. The provisions for legal
proceedings for incompetent persons are untested as a matter of law, and it is
unclear how state courts will choose applicable law for persons with mental
retardation charged with the crimes enumerated in this bill.
AOC suggests that the bill
be amended so that Section 4(A) refers to subsection C in addition to
subsection D.
AG notes the following
concerns:
-- For example, the
term “probable cause” relies on the same standard used in criminal law.
·
Section 13 could
be construed to be a banishment provision, as it details where a committed
person “shall reside” and “with whom.”