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SPONSOR: |
HJC |
DATE TYPED: |
|
HB |
2,3,4,8/HJCS/aSJC |
||
SHORT TITLE: |
Omnibus Sex Offender Bill |
SB |
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||||
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ANALYST: |
Gilbert |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY04 |
FY05 |
FY04 |
FY05 |
|
|
|
|
Significant;
See Narrative |
Recurring |
General
Fund |
|
(Parenthesis
( ) Indicate Expenditure Decreases)
LFC
Files
Responses
Received From
Administrative
Office of the Courts (AOC)
Attorney
General’s Office (AGO)
Corrections
Department (CD)
NM
Sentencing Commission (NMSC)
NM
Public Defender Department (NMPDD)
Children
Youth and Families Department (CYFD)
Department
of Health (DOH)
SUMMARY
Synopsis
of SJC Amendment
The
Senate Judiciary Committee amendment to HB 2,3,4, & 8/HJCS makes the
following changes:
Synopsis
of Original Bill
House Judiciary Committee Substitute for House
Bills 2, 3, 4, 5, and 8/HJCS is a comprehensive bill which creates a sex
offender management board, redefines the crime of kidnapping when such involves
a minor and a sexual offense is committed, increases the penalties for criminal
sexual penetration and criminal sexual contact of a minor, provides for minimum
mandatory penalties, permits the placement of a sex offender on probation for a
period of up to 20 years, lists factors for the district court to consider when
imposing probation, authorizes a period of parole for up to 20 years, and lists
factors for the parole board to consider when determining parole. This bill
does not contain an appropriation.
HB 2,3,4, & 8/HJCS, which relates to sex
offenders, has several purposes as outlined below:
Section 1 of the bill creates the
Sex Offender Management Board (SOMB) within the existing New Mexico Sentencing
Commission. The membership includes
certain members who are already members of the Sentencing Commission, including
the Attorney General, a District Attorney appointed by the District Attorneys'
Association of New Mexico, the Chief Public Defender, a District Court Judge
appointed by the District Court Judges' Association of New Mexico, the Secretary
of Corrections, the Secretary of Health, the Secretary of Children, Youth and
Families, and one member of the public appointed by the Governor who is a
representative of a New Mexico victims organization. The membership also includes several members
who are not currently members of the Sentencing Commission, including two
representatives appointed by the Governor who are mental health professionals
licensed to practice in New Mexico, at
least one of which shall be a member of the Association for the Treatment of
Sexual Abusers and one shall be a juvenile sex offender treatment specialist,
a representative appointed by the Governor from the Adult Probation and Parole
Division of the Corrections Department who has expertise in the supervision of
sex offenders, a representative appointed by the Governor from the law enforcement
community who has expertise regarding sex offender community notification,
registration, tracking and monitoring, a representative appointed by the
Governor who is affiliated with a civil liberties organization, and a
representative appointed by the Governor who is affiliated with a faith-based
organization.
Responsibilities of the Sex Offender Management
Board include the following:
·
develop
and prescribe a standard procedure for the identification and evaluation of convicted
sex offenders, including behavior management, monitoring, treatment and program
compliance for sex offenders, as well as developing and recommending measures
of success;
·
develop
and implement guidelines and standards for the treatment of sex offenders that
can be utilized by offenders who are placed on probation, incarcerated by the
Corrections Department, placed on parole or placed in a community Corrections
program. The guidelines and standards
shall include a monitoring process and a planned for developing treatment
programs for sex offenders, including determining the duration, terms and conditions
of probation and parole for sex offenders;
·
develop
a standardized procedure for the identification and evaluation of juvenile sex
offenders;
·
develop
and implement guidelines and standards for the treatment of juvenile sex offenders;
·
research
and determine the feasibility and legality of implementing indeterminate sentencing
for sex offenders;
·
evaluate
sex offender treatment programs administered by state agencies and recommend
necessary changes; and
·
review
the provisions of the Sex Offender Notification and Registration Act and recommend
necessary changes.
The SOMB is required to report its findings and
recommendations to the New Mexico Sentencing Commission on a quarterly
basis. The Sentencing Commission must
vote to approve, disapprove or revise the recommendations of the Board.
Section 2 amends the definition
of kidnapping to specify the crime is a second degree felony when a kidnapper
releases his victim in a safe place and does not inflict physical injury or a
sexual offense upon the victim.
Section 3 amends the definition
of and penalty for criminal sexual penetration to specify that criminal sexual
penetration in the second degree on a child 13 to 18 years of age represents a second
degree felony for a sexual offense against a child and shall result in a
minimum three year term of imprisonment, which shall not be suspended or
deferred. Under existing law, the
sentence can be suspended or deferred.
Section 3 also amends existing law to specify that criminal sexual
penetration in the third degree, when the victim is a child 13 to 18 years of
age, represents a third degree felony for a sexual offense against a child. The
amended language specifies that this section does not preclude sentencing provisions
of Sections 31-18-17, 31-18-25 and 31-18-26 NMSA 1978.
Section 4 amends the definition
of and penalty for criminal sexual contact of a minor. This bill makes a distinction between
touching the clothed as opposed to the unclothed intimate parts of a
minor. Criminal sexual contact to the unclothed
intimate parts of a minor would constitute a second degree felony for a sexual
offense against a child and, notwithstanding the provisions of Section 31-18-15
NMSA 1978, shall result in a minimum three year term of imprisonment, which
shall not be suspended or deferred.
Under existing law, criminal sexual contact of a minor is a third degree
felony and the entire sentence can be suspended or deferred. The imposition of a minimum, mandatory term
of imprisonment pursuant to this section does not preclude sentencing
provisions of Sections 31-18-17, 31-18-25 and 31-18-26 NMSA 1978.
Section 5 amends existing law to establish
a sentence of 15 years imprisonment (three years of which cannot be suspended
or deferred as set out in Section 3) for a second degree felony sexual offense
against a child and 6 years imprisonment (three years of which cannot be
suspended or deferred as set out in Section 4) for a third degree felony for a
sexual offense against child. The fine
for a second degree felony for a sexual offense against child is $12,500 and
$5000 for a third degree felony for a sexual offense against a child.
Sections 6
and 7 change
the maximum period of probation and conditions of probation for sex offenders. Under current law, the maximum period of
probation for any felony offender, including a sex offender, is 5 years. This bill would allow the period of probation
for a sex offender to extend up to 20 years.
HB 2,3,4, & 8/HJCS defines "sex
offender" to mean a person who is convicted of, pleads guilty to, or
pleads no contest to any one of the following offenses:
·
criminal
sexual penetration in the first, second or third degree, as provided in Section
·
criminal
sexual contact of a minor in the second or third degree, as provided in Section
HB 2,3,4, & 8/HJCS provides that, prior to
placing sex offenders on probation, the district court shall conduct a hearing
to determine the duration, terms, and conditions of probation for sex offenders. A sex offender's initial period of probation
shall not exceed 20 years. The district
court may consider any relevant factors, including:
·
rehabilitation
efforts engaged in by the sex offender, including participation in treatment
programs while incarcerated or elsewhere;
·
a
risk and needs assessment regarding the sex offender, developed by the Sex
Offender Management Board of the New Mexico Sentencing Commission or other
appropriate entity, to be used by appropriate district court personnel.
According to this bill, the district court must
review the terms and conditions of a sex offender's probation at 2 1/2 year
intervals. During the review hearing,
the state shall bear the burden of proving to the district court that a sex
offender should remain on probation. The
district court may decide to continue a sex offender's probation and that
certain terms and conditions of probation are no longer necessary.
The district court may order sex offenders to
abide by reasonable terms and conditions of probation, including:
·
being
subject to the intensive supervision by a probation officer of Corrections
Department;
·
a
probationary agreement by the sex offender not to have contact with certain persons
or classes of persons; and
·
being
subject to alcohol testing, drug testing or polygraph examinations used to determine
if the sex offender is in compliance with the terms and conditions of his
probation.
The district court must notify the sex
offender's counsel of record of the upcoming probation hearing for a sex
offender. The sex offender's counsel of record shall represent the sex offender
at the probation hearing unless the sex offender's counsel of record provides
the court with good cause that counsel of record should not represent the sex
offender. If the sex offender is subsequently
unable to obtain counsel, the district court shall notify the Chief Public
Defender of the upcoming probation hearing and the Chief Public Defender shall
make representation available to the sex offender. “Sex offender” is defined in the new Section
to mean any person convicted of Criminal Sexual Penetration in the first, second,
or third degree, Criminal Sexual Contact of a Minor in the third degree, or
Sexual Exploitation of Children in the second degree.
If the district court finds a sex offender has
violated the terms and conditions of his probation, the district court may
revoke probation or may order additional terms and conditions of probation.
Sections 8
and 9
amend existing law as to allow the parole period for "sex offenders"`
(as defined above) to extend up to 20 years, whereas under current law the
maximum mandatory period of parole is 2 years.
Section 10 amends the Sex Offender
Registration and Notification Act to expand and clarify the definition of
"sex offense" as it pertains to the crime of sexual exploitation of
children.
Section 11 amends the registry
portion of the Sex Offender Registration and Notification Act The amendments
essentially are limited to the inclusion of the new crime of criminal sexual contact
of a minor (2nd Degree).
Section 12 amends the active
community notification portion of the Sex Offender Registration and
Notification Act to make the same clarification as noted in Sections 10 and 11
above as to the crime of sexual exploitation of children.
Section 13
amends
the Earned Meritorious Deductions Act to provide that second degree sexual
contact of a minor (in addition to third degree criminal sexual contact of a minor,
as set out in existing law) is included within the definition of a serious
violent offense.
Section 14 of the bill is a
severability clause.
Significant Issues
According to the
Corrections Department, studies and experience demonstrate that many sex offenders
continue to commit sex offenses into middle and old age. They often commit dozens of offenses each
year and are rarely apprehended because they target children and/or adult
victims who do not report such crimes. Although
there is no cure for sex offenders, their behavior can be controlled through
treatment and intensive supervision, and thus longer periods of probation and
parole should be an available option.
The proposed legislation
would increase the minimum sentence faced by many sex offenders. There is a
strong likelihood that such a penalty increase would result in a decrease in
the number of plea bargains entered and a concomitant increase in the number of
trials required.
Sex offenders are also
rarely convicted on just one count – at least two counts is a common occurrence
and often there are dozens of charges involved with sex offenses against minors.
Whether or not these counts were run consecutively, the proposed legislation
could greatly increase the time that sex offenders would remain on probation.
The proposed legislation could ensure that sex offenders could remain on parole
for much of their entire natural lifespan. Additionally, because probationers
often violate their conditions of probation, the extended period of probation
will extend the timeframe within which the probationers might violate.
While HB 2,3,4, &
8/HJCS contemplates use of polygraph examinations to determine if offenders are
in compliance with probation conditions, the New Mexico Supreme Court is
presently considering whether to continue to allow such evidence at trials in
the state. This decision might affect admissibility of such evidence at
in-court probation hearings. This decision is unlikely to affect admissibility
of such evidence at parole hearings, however.
FISCAL
IMPLICATIONS
According to the New Mexico Sentencing
Commission (NMSC), a $250.0 appropriation is needed to allow the NMSC to
properly carry out its responsibilities under this bill. The NMSC’s current
budget is devoted to contractual services, and therefore there are no direct
FTE’s on staff. Additional direct costs include information systems services, printing,
travel costs, equipment purchases, office supplies, building rental, meeting
room and equipment rental, subscriptions, education and training, and
advertising. In addition to staff and direct costs, an appropriation is needed
for contractual services necessary to develop sentencing reform.
The Corrections
Department believes there
will be minimal to moderate cost increases in the short-term and substantial
cost increases in the-long term. This bill will increase probation and parole
caseloads and may increase the prison population due to the longer periods of
probation and parole, which will increase the chances of probation and parole
violations. However, these should be offset somewhat from lower recidivism
rates and a better quality of life for
Governor Richardson by executive order made
approximately $1.0 million in nonrecurring federal grant funds available to the
Corrections Department to address concerns related to sex offenders. An additional $3.4 million will also be
incorporated into the Department’s executive budget request for FY04 and FY05
to retain current probation and parole officers, to fund 10 new probation and
parole officers, to lease state-of-the-art electronic monitoring devices, and
for increasing prison sex offender treatment programs. Long-term prison population cost increases
will be addressed in the future.
According to the
Administrative Office of the Courts, there will be new costs associated with
statewide update, distribution, and documentation of statutory changes. Additional fiscal impact on the judiciary
would be proportional to the enforcement of this law and the number of commenced
prosecutions. New laws and increased
penalties have the potential to increase caseloads in the courts, thus
requiring additional resources to handle the increase.
According to the Public Defender Department, additional
resources will be necessary since they expect more cases go to trial due to the
increased sentences. These trials will be relatively long and complex, and will
require the use of advanced attorney staff and expert witnesses. During the 2003 Regular Legislative Session,
they estimated (for a similar bill) that $389.3 would be needed for three felony
attorneys, two investigators, two legal liaisons and for furniture and
equipment.
Additionally, since
probationers often violate the conditions of their probation, the extended period
of probation will expand the timeframe within which probationers may violate their
probation provisions. This will lead to
additional violations, and will likely require additional funding for staff and
attorney resources. As the sex offenders
convicted under the new law come up for parole, there will be an increase in
the Public Defender Department workload. Based on projected numbers the Department
may require additional resources for attorneys and support staff, probably
increasing from FY2012-FY2015, and then beginning to decrease in FY2025.
ADMINISTRATIVE
IMPLICATIONS
According to the NMSC, passage
of this bill would have a long-term administrative effect on the agency
requiring new FTEs and associated resources.
According to the Corrections Department, this bill will
result in an increase in the administrative burden on probation and parole
officers and prison sex offender treatment personnel, thus requiring additional
FTE’s and associated resources. The
Corrections Department states that these issues will be addressed in their
executive budget requests for FY 04 and FY 05.
The Public Defender Department stated that this
bill would require additional trial attorneys, expert witness funds, and
concomitant additional administrative and appellate resources.
CONFLICT,
DUPLICATION, RELATIONSHIP
The language in sections
1D(7) and 1D(8) of the new section of Chapter 9, Article 3, Sex Offender
Management Board, may be viewed to conflict with the duties and authorities
granted to the CYFD under the Delinquency Act in the Children’s Code.
TECHNICAL
ISSUES
Enactment of this Bill may require an amendment
of the Public Defender Act, NMSA 1978, Sections 31-15-1 to –12. Presently it appears the Public Defender Department
is authorized only to represent individuals charged with crimes that carry a
possible sentence of imprisonment and individuals in post-conviction
proceedings.
According to the CYFD, the
following technical issues pertaining to the duties of the SOMB should be
considered before passage of this bill:
OTHER
SUBSTANTIVE ISSUES
The NMSC’s current work on juvenile programming
needs is extremely important. During its first few years of operation, the NMSC
focused exclusively on adult-related criminal justice issues, and decided to
turn its focus in FY02 and FY03 to juvenile-related issues that desperately
need attention. The membership of the NMSC is concerned that if the additional
mandates imposed by this bill are not adequately funded, this important work
will fall by the wayside.
AMENDMENTS
The Bill’s addition of duties to the Chief
Public Defender may require an amendment of the Public Defender Act, NMSA 1978,
Sections 31-15-1 to–12. Presently the
Department of the Public Defender appears to be authorized only to represent
individuals charged with crimes that carry a possible sentence of imprisonment
and for individuals in post-conviction proceedings.
According to the
Attorney General’s Office, the following changes should be considered:
·
Section
1, Creation of a SOMB. The purpose of
this board seems to be to act as an advisory committee to the New Mexico
Sentencing Commission, but some of the directives to the SOMB appear to empower
it to act directly. The board is a
non-voting entity. Amendments are
necessary to clarify the strictly advisory role of the Board; the availability
of an expert in the field of the treatment of sex abusers (the term should be
“sex offenders” at page 3, line 6); the lack of funding for the SOMB to
implement the duties and responsibilities; the review of Megan’s Law should be
more specific, i.e. to include the duty to recommend changes to Megan’s Law in
accordance with federal rules and regulations in order to receive all available
federal grants and monies.
·
Section
2, Kidnapping. The definition of
kidnapping is amended to include the kidnapping and commission of a sexual
offense of a minor as a first-degree felony.
Unlike Section
·
Section
3, Criminal Sexual Penetration. Provides
for a minimum mandatory sentence for a second-degree felony when the Criminal
Sexual Penetration is committed on a victim between the ages of thirteen to
eighteen years. Suggested language could
include an age differential such as the situation presented above (assistant
coach and student-athlete).
·
Section
5, Sentencing Authority. Provides for a
lengthened sentence for a second-degree felony of 15 years for a sexual offense
against a child. Provides for an
increased sentence for a third degree felony of 6 years for a sexual offense
against a child. Clarification is
probably needed for the crimes that explicitly fall within the definition of
“sexual offense against a child.” A
direct reference to the proposed increase in probation and parole for sex offenders
should be included.
·
Section
6, Probation. Sex offenders are excluded
from the general provisions regarding probation. No appropriation is made for the supervision
of sex offenders on probation and specialized training for those probation
officers supervising sex offenders. The
implementation of any extended probation for sexual offenders would require the
actions and adoption of recommendations from the Sex Offender Management Board
and the Sentencing Commission. A prospective
date should therefore be included to avoid any statutory interpretation issue
about the effective date.
·
Section
7, Terms and Conditions of Probation.
This proposal lists those factors to be considered by the district court
when probation is ordered. Registration
as a sex offender should be included as one requirement. Terms and conditions of probation could be determined
after the Sex Offender Management Board and the Sentencing Commission determining
the relevant factors as described in Section (A)(1-5). The procedure for review at two and one-half
year intervals fails to address burden of proof, need for expert testimony and
payment of fees, a remedy for the failure to hold a probation hearing within
the specific time frame, notification to victims, and right to legal
counsel. Also, it is unclear what agency
has the duty and responsibilities throughout the extended period of parole to
represent the State (Department of Corrections? District Attorney? Attorney
General?). This legal representation
should be clarified as well as what legal counsel is afforded a probationer and
the funding for this legal representation.
Notification to the victim(s) should also probably be specifically
included. A prospective effective date
should be included as well.
·
Section
8, Parole. This proposal creates
extended parole for sex offenders.
Fiscal implications should be considered for both the Parole Board as
well as administrative and legal costs.
A prospective effective date should be included. Similar to the extended probation propose,
the procedural aspects should be considered.
Notification to victim(s) is important and should be part of the
proposed law.
·
Section
9. Parole. The recommendations and adopting of standards
would be required to implement and enforce the extended parole for sex
offenders. Expert witnesses and advisers
would be required. One requirement for
extended parole should include registration as a sex offender. An effective date for the application of
extended parole should be included.
·
Section
12, Public Access for SORNA. Public
access to information should be afforded about not only those sex offenders who
have direct contact with children but also about those offenders who may be
employed or volunteer as a caretaker or work in a nursing home, care facility
or hospital environment, e.g. as a nurse’s aide, maintenance worker. According to a recent report regarding sexual
assault, victims include not only children but also mentally or physically
disabled individuals. Amendments to that
effect should therefore also be considered.
·
Section
13, Meritorious Deductions. No
significant issues noted.
LG/lg:yr