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SPONSOR: |
Rainaldi |
DATE TYPED: |
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HB |
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SHORT TITLE: |
20-Year Probation for Sex Offenders |
SB |
12 |
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ANALYST: |
Gilbert |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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Significant;
See Narrative |
Recurring |
General
Fund |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Duplicates
HB3
Relates
to/Conflicts With HB2, 3, 4, 8/HJCS
Relates
to HB5
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)
Department
of Health (DOH)
No
Response Received From:
Department
of Public Safety (DPS)
Children
Youth and Families Department (CYFD)
SUMMARY
Synopsis
of Bill
Senate Bill 12 amends NMSA 1978, Section 31-20-5
(placing defendants on probation) and would add a new section, Section
31-20-5.1, to the NMSA.
Section 31-20-5 is amended to clarify that
Subsection A does not apply to sex offenders, who instead are dealt with under
the new Section 31-20-5.2.
A new section is added (Section 31-20-5.2 Sex Offenders
– Period of Probation – Terms and Conditions of Probation), to mandate that
prior to the release of a sex offender on probation, the district court shall
conduct a hearing to determine the terms and conditions of probation. The initial
period of probation shall be for a 5-year term, and the district court may
extend the period of probation in 5 year increments up to 20 years total. The
Bill also lists relevant factors the court may consider.
The new Section 31-20-5.2 requires the court to
review the sex offender probationer’s terms and conditions of probation at 2
1/2 year intervals. It also mandates that “the state shall bear the burden of
proving to the district court that a sex offender should remain on probation.”
The court is authorized to decide to continue a sex offender’s probation, but
may remove conditions of probation that are no longer needed. The Bill lists
probation conditions that may be required by the court, including intensive
supervision, in- or out-patient treatment, abstention from alcohol and drugs,
cessation of contact with individuals or classes of persons, and being subject
to alcohol and drug testing, and polygraph examinations to determine if the offender
is in compliance.
Section 31-20-5.2 also requires the court to notify
the offender’s counsel of record of the upcoming probation hearing. If the
counsel of record provides good cause that they should not represent the offender
at the hearing, then the chief public defender shall be notified and shall
represent the sex offender at the probation hearing. The new Section would give
the court the power to revoke probation or order additional probation
conditions upon a finding of violation. “Sex offender” would be 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.
Significant Issues
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 remaining natural lifespan. Additionally,
since probationers often violate their conditions of probation, the extended period
of probation will extend the timeframe within which the probationers might
violate.
While SB 12 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.
According to the
Corrections Department, studies and experience have demonstrated that many sex
offenders continue to commit sex offenses well 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 the crimes.
Also, although there is no cure for sex offenders, their behavior can be
controlled through treatment and intensive supervision, thus longer periods
of probation and parole
should be an available option.
FISCAL
IMPLICATIONS
According to the Public Defender Department,
three additional attorney personnel may be required to handle the likelihood of
increased trial work and appellate work. 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,
the Department 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.
In the long-term, there will be an increase in
probation caseloads and perhaps an increase in the prison population due to the
longer periods of probation, but this increase will be delayed for approximately
6 years because it will take about 1 year for offenders to be adjudicated under
the new law, plus the offenders would still have served a 5 year period of
probation under current law. Also, there
is a good chance that the longer periods of probation and parole in conjunction
with intensive supervision will result in a lower recidivism rate; and thereby
offset some of the cost increases due to larger caseloads.
According to the
Corrections Department, there will be minimal to moderate cost increase to the
Department 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
New Mexicans due to fewer people being the victim of sexual crimes.
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.
The enactment of the bill is likely to have some
fiscal impact on the courts, possibly requiring additional judges, staff and
monetary resources. Any time the
prosecution or defense functions indicate that there will be an increase in
attorney time (e.g., more hearings or more complex preparation for existing
hearings), there will be a corresponding increase in trial court time. The passage of this bill may require
additional expert witness funds and additional administrative and appellate
resources.
According to the
Department of Health, substance abuse treatment resulting from
this legislation may increase treatment costs to the DOH. This bill may also
result in a need to increase treatment beds in
ADMINISTRATIVE
IMPLICATIONS
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. This will require
additional FTE’s and associated resources, which will be addressed in the
executive
budget
requests for FY 04 and FY 05.
CONFLICT,
DUPLICATION, RELATIONSHIP
Duplicates HB03
Relates
to HB02,3,4,8/HJCSwhich contains very similar provisions.
Relates
to HB05, which mirrors this bill, but addresses parole rather than probation.
SB12
conflicts with HB 2,3,4,8/HJCS as follows:
For purposes of probation of sex offenders, HB
2,3,4,8/HJCS includes the same offenses as defined in SB 12, but also includes
the following in the definition of “sex offender” (meaning those persons to
which the new law would apply):
a)
Kidnapping,
as provided in Subsection C of Section
b)
Criminal
sexual contact of a minor in the second degree as provided in Section
c)
Sexual exploitation of children as provided in Section
30-6A-3 NMSA 1978.
SB 12 and HB 2,3,4,8/HJCS both provide the same
relevant factors for consideration by the district court in determining the
duration, terms and conditions of probation and both bills provide for a review
hearing at two and one-half year intervals.
TECHNICAL
ISSUES
The term “intensive
supervision” is not defined.
OTHER
SUBSTANTIVE ISSUES
The
provision that sets the initial period of probation at 5 years, but then allows
the probation period to be extended may violate the general principle of law
that once an offender is sentenced, the sentence cannot be increased.
The
Department of Health provided the following comments:
Sexual violence is a major threat to public health in
DOH’s Las Vegas Medical Center
(LVMC) currently has a program that provides residential treatment to a total
of eight adult sex offenders referred by Department of Corrections or the New
Mexico Judicial System. This program uses the “Relapse Prevention” model, a
model that is nationally recognized for inpatient sex offender treatment.
Currently, 80% of patients admitted to the program are parolees from the N.M. Department of Corrections; 20% of patients
admitted into the program are probationers from the N.M. Judicial System.
Clear
and consistent policies at all levels (state, local, and agency) are a crucial
component of sex offender management. Policies must be developed that address
and effectively connect
together the many components of sex offender management. This legislation may provide the impetus for a more effective sex offender management policy.
AMENDMENTS
Instead of an
initial period of probation of 5 years, which can be extended to 20 years, set
the initial period of probation as a period not to exceed 20 years.
On Page 4, line
23, change the word “parole” to “probation.”
SB12 appears to contain a drafting error
regarding reasonable terms and conditions of probation. (Paragraph
5 should read “…the terms and conditions of his probation).
GL/yr
|
Corrections Department |
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|
Average Cost Per Inmate / Client |
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|
Based on FY 02 Actual
Expenditures |
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Cumulative |
Average |
Cost |
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Average |
Annual Cost |
Per |
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Population/ |
Per Inmate/ |
Day |
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Institution / Program |
Caseload |
Client |
(In $'s) |
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|
Penitentiary of |
603 |
|
$ 42,966 |
( 4 ) |
$ 117.72 |
|
|
|
|
394 |
|
35,890
|
|
98.33 |
|
|
|
|
763 |
|
31,921
|
( 5 ) |
87.46 |
|
|
|
|
1,186 |
|
29,504
|
( 6 ) |
80.83 |
|
|
|
|
116 |
|
37,549
|
|
102.87 |
|
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PNM - South |
162 |
|
53,250
|
|
145.89 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Department Operated Facilities |
3,224 |
|
$ 34,857 |
|
$ 95.50 |
( 1 ) |
|
|
|
|
|
|
|
|
|
|
CCA (Women's Facility) |
512 |
|
$ 25,117 |
( 7 ) |
$ 68.81 |
( 2 ) |
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Out of System (Males) |
1,974 |
|
23,552
|
|
64.53
|
( 2 ) |
|
|
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Total Privately Operated Facilities
|
2,486 |
|
$ 23,874 |
|
$ 65.41 |
|
|
|
|
|
|
|
|
|
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|
Institution Totals |
5,710 |
|
$ 30,075 |
|
$ 82.40 |
|
|
|
|
|
|
|
|
|
|
|
|
Community Corrections (Privately
Operated) |
326 |
|
$ 10,953 |
( 3, 8 ) |
$ 30.01 |
|
|
|
CC / Department Operated Programs |
399 |
|
$ 5,618 |
( 3 ) |
$ 15.39 |
|
|
|
Probation & Parole (Less ISP) |
10,730 |
|
$ 1,533 |
|
$ 4.20 |
|
|
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Intensive Supervision Program |
435 |
|
$ 2,964 |
|
$ 8.12 |
|
|
|
Probation & Parole/Community Corrections Totals |
|
11,890 |
|
$ 1,981 |
|
$ 5.43 |
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Notes: |
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( 1 ) |
The Corrections Department
institutions Cost Per Inmate is based on FY 02 expenditures, including
allocations for Administration, APD Director, |
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( 2 ) |
The Out-of-System Cost Per Inmate
is based on FY 02 expenditures, including allocations for Administration, APD
Director, Health and Education Central Office. |
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( 3 ) |
Calculation is based on an annual
cost per client. It is not based on
the number of clients served. The
average length of stay for a Community Corrections client is nine months. |
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( 4 ) |
Includes PNM North and PNM Minimum
Restrict facilities. |
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( 5 ) |
Includes SNMCF Main and SNMCF
Minimum Restrict facilities. |
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( 6 ) |
Includes CNMCF |
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( 7 ) |
Includes cost allocated from the
Women's Residential Program. |
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( 8 ) |
This component includes two
contracts for residential treatment that increases the cost. |
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