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F I S C A L I M P A C T R E P O R T

SPONSOR Carraro

DATE

TYPED 1/28/05 HB

SHORT TITLE Sexual Predator Civil Commitment Act

SB 42

ANALYST Wilson

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$11, 500

Recurring General Fund

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the District Attorneys (AODA)

Corrections Department (CD)

Public Defender Department (PDD)

Department of Health (DOH)

Did not respond

Attorney General’s Office (AGO)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

Senate Bill 42 appropriates $11 million from the general fund to the Department of Health), $150

thousand from the general fund to the Attorney General’s Office, $150 thousand from the gen-

eral fund to the Public Defender Department and $150 thousand from the general fund to the

Administrative Office of the Courts to carry out the purposes of the Sexual Predator Civil Com-

mitment Act.

Senate Bill 42 -- Page 2

This bill provides a comprehensive mechanism for the civil commitment of individuals who are

deemed to be sexually violent predators. Persons who are identified as possibly sexually violent

predators by a multi-disciplinary team and a committee of prosecutors may be committed to con-

finement by the Secretary of DOH following a trial by jury. Persons who are determined to be

sexually violent predators must be housed in a secure facility and segregated from other patients

if housed in a state health facility. The bill provides for an annual review of persons confined

under the act, and transitional and conditional release once the person is determined to no longer

commit predatory acts.

Significant Issues

This bill requires that the offender undergo an evaluation to determine if they are a sexually vio-

lent predator. Results of previous studies show that sexual perpetrators often score within the

normal range on psychological testing and that the mentally ill are no more likely to commit sex-

ual violence than the rest of the population.

Research indicates that sexual violence is often not sexually motivated. It is often an act of

power and control designed to humiliate and control someone else. It becomes the ultimate form

of control and dominance over another.

SB 42 is designed to address the civil commitment of a population that presents potential danger

to society due to their predilection to commit repeat violent sexual crimes. There are seventeen

states with laws that have similarities to the proposed Sexual Predators Commitment Act. On

January 22, 2002, the U.S. Supreme Court upheld the constitutionality of the Kansas Sexually

Violent Predator Act, which is worded similarly to SB 42. The Supreme Court held that the con-

finement criterion embodied in the statute with respect to mental abnormality or personality dis-

order satisfied substantive due process. The Supreme Court upheld the State of Kansas’ argu-

ment that states have the authority to define involuntary commitment criteria and may not spe-

cifically include mental illness.

The bill has broad system-wide operational and fiscal implications not only for DOH and other

departments, including Corrections, Administrative Office of the Courts, Public Defender’s Of-

fice, the Attorney General, the prosecutorial state functions. The bill contains new definitions,

provisions, and processes. There is a clause in this bill to addressing problems of conflict of

laws and constitutionality.

Sexually Violent Predator (SVP) statutes in other states contain provisions for ‘step down and

transition”. Information available to DOH indicate that these have yet to be used.

The PDD states that this legislation deprives incompetent persons the right not to be subjected to

a trial at which they cannot assist. While similar legislation has been upheld in many states and

by the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), this issue was

not presented in that case and would be challenged in the New Mexico courts. Other potential

challenges would arise as cases move through the system.

FISCAL IMPLICATIONS

The appropriation of $11,450 contained in this bill is a recurring expense to the general fund to

be divided as follows:$11 million to DOH, $150 thousand to the AGO, $150 thousand to the

Senate Bill 42 -- Page 3

PDD and $150 thousand the AOC to carry out the purposes of the Sexual Predator Civil Com-

mitment Act.

DOH will use their appropriation to create and fund programs that do not presently exist, and

will have to be created. The commitment of resources should be expected to be significant, with

appropriate treatment protocols uncertain. DOH believes that a new and separate facility maybe

required to house sexual predators. DOH may also need security personnel, as well as treatment

staff, to operate such a facility, DOH would need to study all cost factors involved before we

could determine if $11 million is sufficient to provide an appropriate facility and operating

budget.

Currently there is no separate and secure facility to provide housing and treatment to those per-

sons committed to the DOH. Female patients would need a separate facility from the males. The

Washington State experience has been that the cost for its sole female client is $1 million per

year.

Money is needed for legal costs to commit an alleged sexual predator. Costs include investiga-

tion, litigation, appeal, experts, and in most cases, provision of counsel for the alleged predator.

States have cited average costs of several hundred thousand dollars to complete commitment

proceedings for most individuals. Treatment costs (and elaborate treatment is legally required)

are considered at the high range for inpatient mental health treatment, plus the recognized high

costs of security in an essentially forensic hospital setting.

The PDD claims it is difficult to estimate the fiscal impact of this legislation on them without

first having a measure of the number of persons who will be subjected to commitment under the

legislation. The legislation permits the classification of any person who has been convicted of a

sexually violent crime as a sexually violent predator. It provides for commitment proceedings for

nine specific crimes and a catch-all category of any crime that is determined to have been sexu-

ally motivated. The initial hearings alone on commitment require two probable cause hearings

and a trial by jury with expert testimony for the State and for the person sought to be committed.

At all stages of the proceedings, whether for commitment, release, or review of conditions of

confinement, the person committed is entitled to representation by counsel, and generally, a trial

by jury. The legal work involved in presenting such cases is highly specialized and requires a

working knowledge of psychiatric diagnoses and treatment modes, in addition to the psychologi-

cal and sociological history of the person committed. The necessary procedures under the legis-

lation will require more trial work for a specialized unit of the Public Defender Department, and

more appeals for the Appellate Division.

Kansas has a similar statue. Based on the experiences of that state, the additional expenses for

screening by the Attorney General’s Office, initial Department of Health evaluations, independ-

ent evaluations of those referred for commitment, representation by counsel at trial and appeal,

and costs of jury trial would range between $335,000 to $571,000 to complete the initial com-

mitment stage for 27 to 35 persons. These costs do not include administrative costs or the costs

of annual reviews. Of the states that have compiled cost information on commitment trials, the

costs range per trial from a low of $3,000 (plus testing at $240 per hour) in South Carolina to a

high of $200,000 in Washington in the year 2000. The cost of a commitment trial in Arizona is

$90,000.

Senate Bill 42 -- Page 4

In patient service costs also cover a wide range, from a low of $52,000 per year per person in

Missouri to a high of $164,250 per year per person in the District of Columbia. Because of the

extremely high cost of committing, housing, and treating such persons, it is unclear how many

persons will be identified as sexually violent persons under the legislation. Since procedures will

be repeated annually, such as reviews, even five such clients per year would likely require the

addition of two PDD attorneys and an additional social worker.

The legislation is not entirely clear on who is responsible for the cost of expert witnesses. It does

provide that the district court assist in obtaining experts and approves payment of experts hired

to do evaluations. If the person sought to be committed is responsible for these costs, the impact

on the Department’s budget is potentially great as expert psychological evaluations and testi-

mony run into thousands of dollars per case.

The CD notes there is no appropriations included for them. In both the short term and the long

term, the bill will result in a minor increase in costs to the CD, as a result of the requirement that

the Secretary of Corrections establish a multi-disciplinary team. There will probably also be a

small to moderate increase in costs to the Corrections Department as a result of the ability of the

district court judges to order that potential sexual predators be placed in the custody of the CD

after a probable cause determination has been made.

There could be a minimal decrease in costs to the Corrections Department’s Probation and Parole

Division if the civil commitment of these sexual predators resulted in slightly smaller probation

and parole caseloads. There could also be a minimal decrease in revenue if the civil commit-

ments result in fewer offenders being placed on probation or parole; which in time will result in

slightly less probation and parole supervision fees being collected.

ADMINISTRATIVE IMPLICATIONS

There are direct implications for the DOH, in addition to coordination requirements among de-

partments. New programs and services would have to be developed, and professional, licensed

and direct care staff hired and trained. The DOH does not currently have the clinical staff or ex-

pertise to operate the type of programs required in the bill and SB 42 may require new capital

projects, because no such secure state facility currently exists.

The DOH Secretary is charged with the responsibility of keeping the court and victims informed

of any change in status of the treatment or release of a committed sexual predator and for all

costs relating to the evaluation and treatment of persons committed to the Secretary’s custody

under the Act.

The mandates of representation for indigent persons by the legislation at every stage of the

commitment proceedings and changes to the conditions of confinement will require the PDD

commit already scarce resources to the representation of persons committed under the legisla-

tion. The legislation goes beyond the requirements of the Public Defender Act, NMSA 1978,

sections 1-12, which charges the PDD to represent persons without counsel who are financially

unable to obtain counsel and who are charged with crimes that carries a possible sentence of im-

prisonment, and requirements of the Defense of Indigents Act, NMSA 1978, sections 1-10,

which guarantees legal counsel to a needy person who is charged with a serious crime.

Senate Bill 42 -- Page 5

The CD notes in both the short term and the long term, the bill will result in additional adminis-

trative burdens upon the CD. First, the Secretary of Corrections will be required to establish and

maintain a multi-disciplinary team, which will have significant evaluation and reporting re-

quirements. Furthermore, the CD will be required to establish and maintain a notification to alert

the AGO of the upcoming release of certain sexual offenders.

Conversely, the bill could result in a minor decrease in the administrative burden upon

CD’sProbation and Parole officers if the civil commitment of these sexual predators resulted in

smaller parole caseloads.

TECHNICAL ISSUES

The bill references “developmental disability”, which may need to be defined. Reference is also

made to the term “personality disorder”, but this term is not defined in the definitions section.

The Supreme Court upheld the Kansas Act referenced above based in large part to precise crite-

ria for such terms as “mental abnormality”, and “personality disorder”.

The AODA provided the Following:

Technical issues include the following:

•

Section 3.A. includes the children, youth and families department as an “agency that

releases upon lawful order or authority a person serving a sentence or a term of con-

finement”. No where else in the Act is it specified that juveniles are to be included.

•

Section 3.I 10. This could be interpreted to include sexually motivated misdemean-

ors.

•

Section 4.B.: Does not specify which agency has jurisdiction over an accused incom-

petent person or one who has been found legally insane.

•

Section 8.A. reads “[a]t all times, a committed person committed for control, care and

treatment by the department shall be kept in a secure facility and shall be segregated

at all times from other patients under the supervision of the secretary.” It is not clear

whether or the sex offender needs to be segregated from other sex offenders.

DW/lg