SENATE BILL 151
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Mimi Stewart
FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO SEX OFFENDER PAROLE; REVISING THE TERMS AND CONDITIONS OF PAROLE FOR SEX OFFENDERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-21-10.1 NMSA 1978 (being Laws 2003 (1st S.S.), Chapter 1, Section 9, as amended by Laws 2007, Chapter 68, Section 4 and by Laws 2007, Chapter 69, Section 4) is amended to read:
"31-21-10.1. SEX OFFENDERS--PERIOD OF PAROLE--TERMS AND CONDITIONS OF PAROLE.--
A. If the district court sentences a sex offender to a term of incarceration in a facility designated by the corrections department, the district court shall include a provision in the judgment and sentence that specifically requires the sex offender to serve an indeterminate period of supervised parole for a period of:
(1) not less than five years and not in excess of twenty years for the offense of kidnapping when committed with intent to inflict a sexual offense upon the victim, criminal sexual penetration in the third degree, criminal sexual contact of a minor in the fourth degree, [or] sexual exploitation of children in the second degree or child solicitation by electronic communication device; or
(2) not less than five years and up to the natural life of the sex offender for the offense of aggravated criminal sexual penetration, criminal sexual penetration in the first or second degree, criminal sexual contact of a minor in the second or third degree or sexual exploitation of children by prostitution in the first or second degree.
A sex offender's period of supervised parole [may be for a period of less than the maximum if] shall not exceed the five-year minimum unless, at a review hearing provided for in Subsection [C] D of this section, the state is [unable] able to prove that the sex offender should remain on parole.
B. Prior to placing a sex offender on parole, the board shall conduct a hearing to determine the terms and conditions of supervised parole for the sex offender. The board may consider any relevant factors, including:
(1) the nature and circumstances of the offense for which the sex offender was incarcerated;
(2) the nature and circumstances of a prior sex offense committed by the sex offender;
(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;
(4) the danger to the community posed by the sex offender; and
(5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate parole board personnel.
C. A risk and needs assessment performed pursuant to Subsection B of this section may only be performed by a licensed mental health clinician who has a contract with the human services department and who shall administer a dynamic evaluation instrument that has specific relevance to evaluating sex offenders and that has been validated. The sex offender and the attorney general may also submit an independent assessment at the party's own expense.
[C.] D. When a sex offender has served the initial five years of [supervised] parole, [and at two and one-half year intervals thereafter] the board shall review the duration of the sex offender's [supervised] parole. If parole is extended beyond five years, the board shall review the sex offender's parole duration at two and one-half year intervals thereafter. At each review hearing, the attorney general shall bear the burden of proving by clear and convincing evidence that the sex offender should remain on parole. To meet this burden, the attorney general must show that the sex offender has not progressed with treatment or rehabilitation or has otherwise failed to comply with conditions of release, taking into consideration victim notification pursuant to Section 31-26-12 NMSA 1978.
[D.] E. The board may order a sex offender released on parole to abide by reasonable terms and conditions of parole, including:
(1) being subject to intensive supervision by a parole officer of the corrections department;
(2) participating in an outpatient or inpatient sex offender treatment program;
(3) a parole agreement by the sex offender not to use alcohol or drugs;
(4) a parole agreement by the sex offender not to have contact with certain persons or classes of persons; and
(5) 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 the sex offender's parole. Any polygraph examinations that implicate potential criminal liability and that are required for parole compliance shall be accompanied by a use immunity agreement.
[E.] F. The board shall require electronic real-time monitoring of every sex offender released on parole for the entire time the sex offender is on parole. The electronic monitoring shall use global positioning system monitoring technology or any successor technology that would give continuous information on the sex offender's whereabouts and enable law enforcement and the corrections department to determine the real-time position of a sex offender to a high level of accuracy.
[F.] G. The board shall notify the chief public defender of an upcoming parole hearing for a sex offender pursuant to Subsection [C] D of this section, and the chief public defender shall make representation available to the sex offender at the parole hearing if the parolee does not obtain private counsel.
[G.] H. If the board finds that a sex offender has violated the terms and conditions of the sex offender's parole, the board may revoke the sex offender's parole or may modify the terms and conditions of parole. If a sex offender's parole is revoked and the sex offender is re-incarcerated, the board shall review the sex offender's eligibility to be released at one-year intervals thereafter. At no point shall a sex offender remain incarcerated for a period of more than five years without a full review hearing pursuant to Subsection D of this section.
[H.] I. The provisions of this section shall apply to all sex offenders, except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act.
[I.] J. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:
(1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;
(2) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;
(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;
(4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978;
(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978; or
(6) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978."
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