NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

The LFC is only preparing FIRs on bills referred to the Senate Finance Committee, the Senate Ways and Means Committee, the House Appropriations and Finance Committee and the House Taxation and Revenue Committee. The chief clerks are responsible for preparing and issuing all other bill analyses.

Only the most recent FIR version, excluding attachments, is available on the Intranet. Previously issued FIRs and attachments may be obtained from the LFC office in Room 416 of the State Capitol Building.

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates/Conflicts with/Companion to/Relates to

SOURCES OF INFORMATION

LFC files

Department of Public Safety (DPS)

Administrative Office of the Courts (AOC)

Adult Parole Board

Bernalillo County Metropolitan Court

Children, Youth and Families Department (CYFD)

Corrections Department (CD)

Department of Health (DOH)

SUMMARY

Synopsis of SFl #1 Amendment

This Senate Floor amendment strikes on page 1, line 11 "PUNISHMENT" and inserts in lieu thereof "TREATMENT". Also, on page 2, line 2 after "other" inserts "treatment of".

Synopsis of SFC Amendment

The Senate Finance Committee amendment strikes "MAKING AN APPROPRIATION" from the title. Also, on pages 7 and 8, strikes section 3 "appropriation" in its entirety. Finally, renumbers the succeeding section accordingly.

Synopsis of Bill

SB 159 requires a person convicted of criminal sexual penetration in the first degree when the victim is a child less than thirteen years of age shall, if paroled, to undergo medroxyprogesterone acetate treatment or its equivalent, in addition to any other punishment prescribed for that offense. (In other words, chemical castration).

SB 159 provides that the person shall be exempt from the treatment if he has undergone or does undergo a permanent surgical alternative to hormonal chemical treatment for sex offenders.

The bill also provides that the chemical treatment shall begin one week prior to the offenders release on parole from the physical custody of the Corrections Department (CD). It requires the sex offender to remain on the treatment program until released from parole unless before that date the Parole Board demonstrates to the satisfaction of the sentencing court that the treatment is no longer necessary. The bill also amends Section 31-21-10, NMSA 1978 to add a provision that a person paroled for conviction of this crime would be paroled for life.

SB 159 provides that the federal Center for Disease Control and Prevention shall administer and implement the protocols required by the bill.

SB 159 appropriates $200.0 from the general fund to CD for expenditure in FY2000 for the purpose of implementing a hormonal chemical treatment program for sex offenders released on parole.

Significant Issues

CD reports the most significant issue to the agency is the increase in costs that will result from the bill. This increase in costs will result not only from the administration of the chemical treatment program, but from lengthening the parole term of these offenders for a period of their natural life.

Also, CD does not currently provide medical services to any parolees or probationers. CD only provides medical services for those offenders housed in its prisons. Therefore, this will be the first time CD will be required to provide medical services to parolees. CD will presumably be required to contract with various physicians or medical service providers in various communities around the state and is not currently funded for this expense. It may also be somewhat difficult to monitor an offender's compliance with this program.

CD states another issue is that SB 159 mandates the federal Center for Disease Control and Prevention to administer the protocols required by the bill. The supremacy clause of the United states Constitution prohibits a state from mandating a federal agency to administer a state program. This problem could be addressed by suggesting the state will follow CDC protocols.

According to the Department of Health (DOH), SB 159 raises the question of the legal and medical efficacy of using hormonal chemical treatment to prevent future sexual assaults on children.

FISCAL IMPLICATIONS

According to CD, the cost of the program will be recurring. Since the bill also increases the parole term for these offenders to the period of their natural life, these recurring costs will continue to grow each year as to both the chemical treatment program as well as ordinary costs associated with administering the program. CD is unable to determine what the costs of such a program would be. It may be that the $200.0 is sufficient to administer the program in FY2000, but such an amount may be insufficient in later years as the number of parolees participating in this program increases.

Also, the bill will ultimately result in a substantial increase in the number of persons being supervised on parole; since the parole term for these offenders is increased to the period of their natural life. CD anticipates additional appropriations for this purpose in later years.

CD reports, by increasing the length of their parole term to the natural life of the offender; the bill also increases the likelihood that these offenders will at sometime have their parole violated and be returned to prison. This will result in a slight increase in CD prison population if it occurs.

SB 159 may result in a minimal increase in revenues, parole supervision fees accessed against those offender's who would now be serving a longer period of parole.

The Children Youth and Families Department (CYFD) reports, it is not clear if a juvenile who is a youthful offender is subject to the parole constriction in this statute.

The Adult Parole Board reports, it is uncertain how much in recurring costs will be needed since it is uncertain how aggressively the district attorneys will pursue full prosecution under this proposal.

The Administrative Office of the Courts reports, it will cost the judicial information system $400 for statewide update, distribution, and documentation of statutory changes. Any additional fiscal impact on the judiciary would be proportional to the enforcement of this law and commenced prosecutions. New laws, amendments to existing laws, and new hearings have the potential to increase caseloads in the courts, thus requiring additional resources to handle the increase.

ADMINISTRATIVE IMPLICATIONS

According to CYFD, it is unclear if a juvenile who is convicted under this statute remains on parole and is continued under the supervision of the juvenile system. If so, then an agreement with the Adult Parole Board would have to be executed to resolve the problem.

The Adult Parole Board reports no administrative impact is anticipated.

The Administrative Office of the Courts reports this new sentencing provision adds new hearings, at the district court level, to determine if the parolee has satisfactorily demonstrated that treatment is no longer necessary.

OTHER SUBSTANTIVE ISSUES

According to DOH, research regarding sex offenders finds that this form of treatment is effective for offenders who are characterized as compulsive. It is not assumed to be effective if compulsivity is not present. It cannot be assumed that compulsivity is characteristic of this particular subset of convicted offenders. The issue of contraindications such as health problems is not addressed. No physician would start or continue to administer these drugs, despite their patients' request to do so, if there is substantive contraindications. Does this mean that the person with health problems that make administration of this drug a hazard would be ineligible for parole or that their parole would be revoked? It takes at least a month for these chemicals to reach efficacy. Thus, the requirement that treatment start no later than one week prior to parole does not provide enough time for the chemical to reach efficacy.

DOH reports, this form of parole may constitute a violation of the prohibition on "cruel and unusual punishment" as contained in the Eighth Amendment of the U.S. Constitution.

DOH reports, one disturbing portion of section 21 (new) paragraph D: A..."person on parole remains in the legal custody of the institution from which he was released..." Hopefully this would not apply to juveniles. As it stands now, juveniles who are paroled are considered back in legal custody of their parents or another court appointed custodian. Because they are no longer in the institution's legal custody they are eligible for Medicaid. If the adult standard were applied to juveniles, it would affect many of DOH's clients.

Bernalillo County Metro Court reports, would this kind of treatment or it's equivalent be used on women, e.g., would this treatment have the same effect on women as that of men? What would keep the offender from using foreign objects to molest children under the age of 13, e.g., hands, etc.? Why wouldn't this apply to any child under the age of 17 years of age?

Also, if SB 159 does not pass there is a high possibility that the convicted male sex offender of children under the age of 13 may commit the same sexual offenses: e.g., sexual penetration or even that of a higher degree; e.g., murder, etc.

LAT/gm