Senate Bill No. 348
(By Senators Kessler, Foster, Barnes, Browning, Deem and Plymale)
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[Introduced January 26, 2010; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §15-12-2 and §15-12-5 of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§62-12-3 of said code, all relating to amending the
community notification and disclosure provisions of the Sex
Offender Registration Act; developing a risk assessment
scale; establishing end-of-confinement review committees;
determining risk of reoffending; defining risk levels;
community notification for various risk levels; timing of
notification; length of community notification;
communicating the risk level determination; other
information communicated to law enforcement; notice of an
offender's release; reassessing the risk level
determination; administrative review of risk level
assessment; and offender request for reassessment of risk
level.
Be it enacted by the Legislature of West Virginia:
That §15-12-2 and §15-12-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and §62-12-3 of said
code be amended and reenacted, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively
and prospectively.
(b) Any person who has been convicted of an offense or an
attempted offense or has been found not guilty by reason of
mental illness, mental retardation or addiction of an offense
under any of the following provisions of chapter sixty-one of
this code or under a statutory provision of another state, the
United States Code or the Uniform Code of Military Justice which
requires proof of the same essential elements shall register as
set forth in subsection (d) of this section and according to the
internal management rules promulgated by the superintendent under
authority of section twenty-five, article two of this chapter:
(1) Article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed by an Act of the
Legislature during the year 2000 legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two;
(5) Sections six, seven, twelve and thirteen, article eight; or
(6) Section fourteen-b, article three-c, as it relates to
violations of those provisions of chapter sixty-one listed in
this subsection.
(c) Any person who has been convicted of a criminal offense
and the sentencing judge made a written finding that the offense
was sexually motivated shall also register as set forth in this
article.
(d) Persons required to register under the provisions of
this article shall register in person at the West Virginia State
Police detachment in the county of his or her residence, the
county in which he or she owns or leases habitable real property
that he or she visits regularly, the county of his or her place
of employment or occupation and the county in which he or she
attends school or a training facility, and in doing so, provide
or cooperate in providing, at a minimum, the following when
registering:
(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or
resides at the time of registration, the address of any habitable
real property owned or leased by the registrant that he or she
regularly visits:
Provided, That a post office box may not be
provided in lieu of a physical residential address, the name and
address of the registrant's employer or place of occupation at
the time of registration, the names and addresses of any
anticipated future employers or places of occupation, the name
and address of any school or training facility the registrant is
attending at the time of registration and the names and addresses
of any schools or training facilities the registrant expects to
attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of
registration;
(5) A brief description of the crime or crimes for which the
registrant was convicted;
(6) Fingerprints;
(7) Information related to any motor vehicle, trailer or
motor home owned or regularly operated by a registrant, including
vehicle make, model, color and license plate number:
Provided,
That for the purposes of this article, the term "trailer"
shall
mean means travel trailer, fold-down camping trailer and house
trailer as those terms are defined in section one, article one,
chapter seventeen-a of this code;
(8) Information relating to any Internet accounts the
registrant has and the screen names, user names or aliases the
registrant uses on the Internet; and
(9) Information related to any telephone or electronic
paging device numbers that the registrant has or uses, including,
but not limited to, residential, work and mobile telephone numbers.
(e) (1) On the date that any person convicted or found not
guilty by reason of mental illness, mental retardation or
addiction of any of the crimes listed in subsection (b) of this
section, hereinafter referred to as a "qualifying offense",
including those persons who are continuing under some post-
conviction supervisory status, are released, granted probation or
a suspended sentence, released on parole, probation, home
detention, work release, conditional release or any other release
from confinement, the Commissioner of Corrections, regional jail
administrator, city official or sheriff operating a jail or
Secretary of the Department of Health and Human Resources who
releases the person and any parole or probation officer who
releases the person or supervises the person following the
release, shall obtain all information required by subsection (d)
of this section prior to the release of the person, inform the
person of his or her duty to register and send written notice of
the release of the person to the State Police within three
business days of receiving the information. The notice must
include the information required by said subsection. Any person
having a duty to register for a qualifying offense shall register
upon conviction, unless that person is confined or incarcerated,
in which case he or she shall register within three business days
of release, transfer or other change in disposition status.
(2) Notwithstanding any provision of this article to the
contrary, a court of this state shall, upon presiding over a
criminal matter resulting in conviction or a finding of not
guilty by reason of mental illness, mental retardation or
addiction of a qualifying offense, cause, within seventy-two
hours of entry of the commitment or sentencing order, the
transmittal to the sex offender registry for inclusion in the
registry all information required for registration by a
registrant as well as the following nonidentifying information
regarding the victim or victims:
(A) His or her sex;
(B) His or her age at the time of the offense; and
(C) The relationship between the victim and the perpetrator.
The provisions of this paragraph do not relieve a person
required to register pursuant to this section from complying with
any provision of this article.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental
abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty
by reason of mental illness, mental retardation or addiction in a
court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court a statement
acknowledging that he or she understands the requirements imposed
by this article. The court shall inform the person so convicted
of the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his
or her counsel that the defendant has received notice of the
provisions of this article and that the defendant understands the
provisions. The statement, when signed and witnessed,
constitutes prima facie evidence that the person had knowledge of
the requirements of this article. Upon completion of the
statement, the court shall provide a copy to the registry.
Persons who have not signed a statement under the provisions of
this subsection and who are subject to the registration
requirements of this article must be informed of the requirement
by the State Police whenever the State Police obtain information
that the person is subject to registration requirements.
(h) The State Police shall maintain a central registry of
all persons who register under this article and shall release
information only as provided in this article. The information
required to be made public by the State Police by
subdivision
(2), subsection
(b) (f), section five of this article is to be
accessible through the Internet. No information relating to
telephone or electronic paging device numbers a registrant has or
uses may be released through the Internet.
(i) For the purpose of this article, "sexually violent
offense" means:
(1) Sexual assault in the first degree as set forth in
section three, article eight-b, chapter sixty-one of this code or
of a similar provision in another state, federal or military
jurisdiction;
(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code or
of a similar provision in another state, federal or military
jurisdiction;
(3) Sexual assault of a spouse as set forth in the former
provisions of section six, article eight-b, chapter sixty-one of
this code, which was repealed by an Act of the Legislature during
the two thousand legislative session, or of a similar provision
in another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction.
(j) For purposes of this article, the term "sexually
motivated" means that one of the purposes for which a person
committed the crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent
predator" means a person who has been convicted or found not
guilty by reason of mental illness, mental retardation or
addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person
likely to engage in predatory sexually violent offenses.
(l) For purposes of this article, the term "mental
abnormality" means a congenital or acquired condition of a
person, that affects the emotional or volitional capacity of the
person in a manner that predisposes that person to the commission
of criminal sexual acts to a degree that makes the person a
menace to the health and safety of other persons.
(m) For purposes of this article, the term "predatory act"
means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.
(n) For the purposes of this article, the term "business
days", means days exclusive of Saturdays, Sundays and legal
holidays as defined in section one, article two, chapter two of
this code.
§15-12-5. Distribution and disclosure of information.
(a) Within five business days after receiving any
notification as described in this article, the State Police shall
distribute a copy of the notification statement to:
(1) The supervisor of each county and municipal law-
enforcement office and any campus police department in the city
and county where the registrant resides, owns or leases habitable
real property that he or she regularly visits, is employed or
attends school or a training facility;
(2) The county superintendent of schools in each county
where the registrant resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends
school or a training facility;
(3) The child protective services office charged with
investigating allegations of child abuse or neglect in the county
where the registrant resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends
school or a training facility;
(4) All community organizations or religious organizations
which regularly provide services to youths in the county where
the registrant resides, owns or leases habitable real property
that he or she regularly visits, is employed or attends school or
a training facility;
(5) Individuals and organizations which provide day care
services for youths or day care, residential or respite care, or
other supportive services for mentally or physically
incapacitated or infirm persons in the county where the
registrant resides, owns or leases habitable real property that
he or she regularly visits, is employed or attends school or a
training facility; and
(6) The Federal Bureau of Investigation (FBI).
(a) As used in this section:
(1) "Commissioner" means the Commissioner of the Division of
Corrections;
(2) "Confinement" means confinement in a state correctional
facility or a state treatment facility;
(3) "Executive director" means the Executive Director,
Regional Jail and Correctional Facility Authority;
(4) "Immediate household" means any and all individuals who
live in the same household as the offender;
(5) "Law-enforcement agency" means the law-enforcement
agency having primary jurisdiction over the location where the
offender expects to reside upon release;
(6) "Authority" means the Regional Jail and Correctional
Facilities Authority;
(7) "Residential facility" means a facility that is licensed
as a residential program by the Secretary of Health and Human
Resources under the provisions of article five-c, five-d or
five-e, chapter sixteen of this code whose staff are trained in
the supervision of sex offenders;
(8) "Secretary" means the Secretary of the Department of
Health and Human Resources; and
(9) "Sex offender" and "offender" mean a person who is
required to register as a sex offender under section two of this
article.
(b) By July 1, 2010, the Secretary of the Department of
Military Affairs and Public Safety, shall develop a risk
assessment scale which assigns weights to the various risk
factors listed in subdivision(7), subsection(c) of this section,
and specifies the risk level to which offenders with various risk
assessment scores shall be assigned. In developing this scale,
the Secretary of the Department of Military Affairs and Public
Safety shall consult with prosecuting attorneys, treatment
professionals, law-enforcement officials, and probation and
parole officers.
(c) (1) the Commissioner of the Division of Corrections, the
Executive Director of the Regional Jail and Correctional Facility
Authority and the Secretary of the Heath and Human Resources
shall establish and administer end-of-confinement review
committees at each: (A) State correctional facility; (B)
regional jail facility; and (C) state treatment facility where
sex offenders are confined. The committees shall assess on a
case-by-case basis the public risk posed by sex offenders who are
about to be released from confinement.
(2) Each committee is a standing committee and shall consist
of the following members appointed by the commissioner, executive
director or secretary:
(A) The chief executive officer or head of the correctional
facility, regional jail or treatment facility where the offender
is currently confined, or that person's designee;
(B) A member of the State Police;
(C) A treatment professional who is trained in the
assessment of sex offenders;
(D) A caseworker experienced in supervising sex offenders; and
(E) A victim's services professional.
Members of the committee, other than the facility's chief
executive officer or head, shall be appointed by the
commissioner, executive director or secretary to two-year terms.
The chief executive officer or head of the facility or designee
shall act as chair of the committee and shall use the facility's
staff, as needed, to administer the committee, obtain necessary
information from outside sources, and prepare risk assessment
reports on offenders.
(3) The committee shall have access to the following data on
a sex offender only for the purposes of its assessment and to
defend the committee's risk assessment determination upon
administrative review under this section:
(A) Private medical data that relate to medical treatment of
the offender;
(B) Private and confidential court services data;
(C) Private and confidential corrections data; and
(D) Private criminal history data.
Data collected and maintained by the committee under this
subdivision may not be disclosed outside the committee. The sex
offender has access to data on the offender collected and
maintained by the committee, unless the data are confidential
data received under this subdivision.
(4) (A) Except as otherwise provided in paragraphs (B), (C),
and (D) of this subdivision, at least ninety days before a sex
offender is to be released from confinement, the commissioner,
executive director or secretary shall convene the appropriate
end-of-confinement review committee for the purpose of assessing
the risk presented by the offender and determining the risk level
to which the offender shall be assigned under subdivision (5).
The offender and the law-enforcement agency that was responsible
for the charge resulting in confinement shall be notified of the
time and place of the committee's meeting. The offender has a
right to be present and be heard at the meeting. The law-
enforcement agency may provide material in writing that is
relevant to the offender's risk level to the chair of the
committee. The committee shall use the risk factors described in
subdivision (7) of this section and the risk assessment scale
developed under subsection (b) of this section to determine the
offender's risk assessment score and risk level. Offenders
scheduled for release from confinement shall be assessed by the
committee established at the facility from which the offender is
to be released.
(B) If an offender is received for confinement in a facility
with less than ninety days remaining in the offender's term of
confinement, the offender's risk shall be assessed at the first
regularly scheduled end of confinement review committee that
convenes after the appropriate documentation for the risk
assessment is assembled by the committee. The commissioner, executive director or secretary shall make reasonable efforts to
ensure that offender's risk is assessed and a risk level is
assigned or reassigned at least thirty days before the offender's
release date.
(C) If the offender is subject to a mandatory life sentence,
the commissioner shall convene the appropriate end-of-confinement
review committee at least nine months before the offender's
minimum term of imprisonment has been served. If the offender is
received for confinement in a facility with less than nine months
remaining before the offender's minimum term of imprisonment has
been served, the committee shall conform its procedures to those
outlined in paragraph (B) of this subdivision to the extent
practicable.
(D) If the offender is granted supervised release, the
commissioner shall notify the appropriate end-of-confinement
review committee that it needs to review the offender's
previously determined risk level at its next regularly scheduled
meeting. The commissioner shall make reasonable efforts to
ensure that the offender's earlier risk level determination is
reviewed and the risk level is confirmed or reassigned at least
sixty days before the offender's release date. The committee
shall give the report to the offender and to the law-enforcement
agency at least sixty days before an offender is released from
confinement.
(5) The committee shall assign to risk level I a sex
offender whose risk assessment score indicates a low risk of
reoffense. The committee shall assign to risk level II an
offender whose risk assessment score indicates a moderate risk of
reoffense. The committee shall assign to risk level III an
offender whose risk assessment score indicates a high risk of
reoffense.
(6) Before the sex offender is released from confinement,
the committee shall prepare a risk assessment report which
specifies the risk level to which the offender has been assigned
and the reasons underlying the committee's risk assessment
decision. Except for an offender subject to a mandatory life
sentence, who has not been granted supervised release, the
committee shall give the report to the offender and to the State
Police at least sixty days before an offender is released from
confinement. If the offender is subject to a mandatory life
sentence and has not yet served the entire minimum term of
imprisonment, the committee shall give the report to the offender
and to the commissioner at least six months before the offender
is first eligible for release. If the risk assessment is
performed under the circumstances described in
paragraph(B),subdivision(4) of this section, the report shall be
given to the offender and the State Police as soon as it is
available. The committee also shall inform the offender of the
availability of review under subsection (f) of this section.
(7) As used in this subsection, "risk factors" includes, but is not limited to, the following factors:
(A) The seriousness of the offense should the offender
reoffend. This factor includes consideration of the following:
(i) The degree of likely force or harm;
(ii) The degree of likely physical contact; and
(iii) The age of the likely victim;
(B) The offender's prior offense history. This factor
includes consideration of the following:
(i) The relationship of prior victims to the offender;
(ii) The number of prior offenses or victims;
(iii) The duration of the offender's prior offense history;
(iv) The length of time since the offender's last prior
offense while the offender was at risk to commit offenses; and
(v) The offender's prior history of other antisocial acts;
(C) The offender's characteristics. This factor includes
consideration of the following:
(i) The offender's response to prior treatment efforts; and
(ii) The offender's history of substance abuse;
(D) The availability of community supports to the offender.
This factor includes consideration of the following:
(i) The availability and likelihood that the offender will
be involved in therapeutic treatment;
(ii) The availability of residential supports to the
offender, such as a stable and supervised living arrangement in
an appropriate location;
(iii) The offender's familial and social relationships,
including the nature and length of these relationships and the
level of support that the offender may receive from these
persons; and
(iv) The offender's lack of education or employment
stability;
(E) Whether the offender has indicated or credible evidence
in the record indicates that the offender will reoffend if
released into the community; and
(F) Whether the offender demonstrates a physical condition
that minimizes the risk of reoffense, including but not limited
to, advanced age or a debilitating illness or physical condition.
(8) Upon the request of the State Police or the offender's
parole or probation officer, the commissioner, executive director
or secretary may reconvene the end-of-confinement review
committee for the purpose of reassessing the risk level to which
an offender has been assigned under subdivision (5) of this
section. In a request for a reassessment, the State Police or
the parole or probation officer shall list the facts and
circumstances arising after the initial assignment or facts and
circumstances known to the State Police or the parole or
probation officer, but not considered by the committee under
subdivision (5) of this section which support the request for a
reassessment. The request for reassessment by the State Police
must occur within thirty days of receipt of the report indicating the offender's risk level assignment. The offender's parole or
probation officer, in consultation with the State Police, may
request a review of a risk level at any time if substantial
evidence exists that the offender's risk level should be reviewed
by an end-of-confinement review committee. This evidence
includes, but is not limited to, evidence of treatment failures
or completions, evidence of exceptional crime-free community
adjustment or lack of appropriate adjustment, evidence of
substantial community need to know more about the offender or
mitigating circumstances that would narrow the proposed scope of
notification, or other practical situations articulated and based
in evidence of the offender's behavior while under supervision.
Upon review of the request, the end-of-confinement review
committee may reassign an offender to a different risk level. If
the offender is reassigned to a higher risk level, the offender
has the right to seek review of the committee's determination
under subsection (f) of this section.
(9) An offender may request the end-of-confinement review
committee to reassess the offender's assigned risk level after
three years have elapsed since the committee's initial risk
assessment and may renew the request once every two years
following subsequent denials. In a request for reassessment, the
offender shall list the facts and circumstances which demonstrate
that the offender no longer poses the same degree of risk to the
community. In order for a request for a risk level reduction to
be granted, the offender must demonstrate full compliance with
supervised release conditions, completion of required post-
release treatment programming, and full compliance with all
registration requirements contained in this article. The
offender must also not have been convicted of any felony or
misdemeanor offenses subsequent to the assignment of the original
risk level. The committee shall follow the process outlined in
subdivisions (1) through (3) of this section in the reassessment.
An offender who is incarcerated may not request a reassessment
under this subdivision.
(10) Offenders returned to prison as release violators do
not have a right to a subsequent risk reassessment by the end-of-
confinement review committee unless substantial evidence
indicates that the offender's risk to the public has increased.
(d)(1) Except as provided in subdivision (2), the
commissioner shall establish an end-of-confinement review
committee to assign a risk level:
(A) To offenders who are released from a federal
correctional facility in the State of West Virginia or a federal
correctional facility in another state and who intend to reside
in the State of West Virginia;
(B) To offenders who are accepted from another state under
any interstate compact or any other authorized interstate
agreement; and
(C) To offenders who are referred to the committee by the State Police under subdivision (6) of this section.
(2) This subsection does not require the commissioner to
convene an end-of-confinement review committee for a person
coming into the State of West Virginia who is subject to
probation under another state's law. The probation or parole
officer and the State Police shall manage such cases in
accordance with section nine of this article.
(3) The committee shall make reasonable efforts to conform
to the same timelines applied to offenders released from a State
correctional facility or regional jail and shall collect all
relevant information and records on offenders assessed and
assigned a risk level under this section. However, for offenders
who were assigned the most serious risk level by another state,
the committee must act promptly to collect the information
required under this section.
The end-of-confinement review committee must proceed in
accordance with all requirements set forth in this section and
follow all policies and procedures applied to offenders released
from a State correctional facility or regional jail in reviewing
information and assessing the risk level of offenders covered by
this subsection, unless restrictions caused by the nature of
federal or interstate transfers prevent such conformance. All of
the provisions of this section apply to offenders who are
assessed and assigned a risk level under this subsection.
(4) If a local law-enforcement agency learns or suspects
that a person who is subject to this section is living in the
State of West Virginia and a risk level has not been assigned to
the person under this section, the law-enforcement agency shall
provide this information to the State Police within three
business days.
(5) If the State Police receives reliable information that a
person subject to this section is living in this state and a
local law-enforcement agency so requests, the State Police must
determine if the person was assigned a risk level under a law
comparable to this section. If the State Police determines that
the law is comparable and public safety warrants, the State
Police, within three business days of receiving a request, may
proceed with notification under subsection (e) of this section
based on the person's out-of-state risk level. However, if the
State Police conclude that the offender is from a state with a
risk level assessment law that is not comparable to this section,
the extent of the notification may not exceed that of a risk
level II offender under subdivision(12), subsection(e) of this
section, unless the requirements of subdivision (6) of this
section have been met. If an assessment is requested from the
end-of-confinement review committee under subdivision (6) of this
section, the State Police may continue to disclose information
under subsection (d) of this section until the committee assigns
the person a risk level. After the committee assigns a risk
level to an offender pursuant to a request made under subdivision (6) of this section, the information disclosed by the State
Police shall be consistent with the risk level assigned by the
end-of-confinement review committee. The State Police, in
consultation with the commissioner, shall determine whether the
law of another state is comparable to this section.
(6) If the State Police wants to make a broader disclosure
than is authorized under subdivision (5) of this section, the
State Police may request that the appropriate end-of-confinement
review committee assign a risk level to the offender. The State
Police shall provide to the committee all information concerning
the offender's criminal history, the risk the offender poses to
the community, and other relevant information. The end-of-
confinement review committee shall attempt to obtain other
information relevant to determining which risk level to assign
the offender. The committee shall promptly assign a risk level
to an offender under this subsection.
(e)(1) The State Police shall disclose to the public any
information regarding the offender contained in the report
forwarded to the agency under subdivision(6), subsection(c) of
this section, that is relevant and necessary to protect the
public and to counteract the offender's dangerousness, consistent
with the guidelines in subdivision (2) of this section. The
extent of the information disclosed and the community to whom
disclosure is made must relate to the level of danger posed by
the offender, to the offender's pattern of offending behavior,
and to the need of community members for information to enhance
their individual and collective safety.
(2) The State Police shall employ the following guidelines
in determining the scope of disclosure made under this
subsection:
(A) If the offender is assigned to risk level I, the State
Police may maintain information regarding the offender within the
agency and may disclose it to other law enforcement agencies.
Additionally, the State Police may disclose the information to
any victims of or witnesses to the offense committed by the
offender. The State Police shall disclose the information to
victims of the offense committed by the offender who have
requested disclosure and to adult members of the offender's
immediate household;
(B) If the offender is assigned to risk level II, the State
Police also may disclose the information to agencies and groups
that the offender is likely to encounter for the purpose of
securing those institutions and protecting individuals in their
care while they are on or near the premises of the institution.
These agencies and groups include the staff members of public and
private educational institutions, day care establishments, and
establishments and organizations that primarily serve individuals
likely to be victimized by the offender. The State Police also
may disclose the information to individuals the agency believes
are likely to be victimized by the offender. The State Police's belief shall be based on the offender's pattern of offending or
victim preference as documented in the information provided by
the Division of Corrections or the Regional Jail and Correctional
Facility Authority;
(C) If the offender is assigned to risk level III, the State
Police shall disclose the information to the persons and entities
described in paragraphs (A) and (B) of this subdivision and to
other members of the community whom the offender is likely to
encounter, unless the State Police determines that public safety
would be compromised by the disclosure or that a more limited
disclosure is necessary to protect the identity of the victim.
Notwithstanding the assignment of a sex offender to risk
level II or III, the State Police may not make the disclosures
permitted or required by paragraph (B) or (C) of this
subdivision, if the offender is placed or resides in a
residential facility. However, if an offender is placed or
resides in a residential facility, the offender and the head of
the facility shall designate the offender's likely residence upon
release from the facility and the head of the facility shall
notify the commissioner or the secretary of the offender's likely
residence at least fourteen days before the offender's scheduled
release date. The commissioner or secretary shall give this
information to the State Police. The head of the residential
facility also shall notify the commissioner or the secretary
within forty-eight hours after finalizing the offender's approved
relocation plan to a permanent residence. Within five days after
receiving this notification, the commissioner or secretary shall
give to the State Police all relevant information the
commissioner or secretary has concerning the offender, including
information on the risk factors in the offender's history and the
risk level to which the offender was assigned. After receiving
this information, the State Police shall make the disclosures
permitted or required by paragraph (B) or (C), as appropriate.
(3) As used in paragraph(B) and(C), subdivision(2) of this
section, "likely to encounter" means that:
(A) The organizations or community members are in a location
or in close proximity to a location where the offender lives or
is employed, or which the offender visits or is likely to visit
on a regular basis, other than the location of the offender's
outpatient treatment program; and
(B) The types of interaction which ordinarily occur at that
location and other circumstances indicate that contact with the
offender is reasonably certain.
(4) The State Police shall make a good faith effort to make
the notification within five business days of receipt of a
confirmed address from the Division of Corrections, the Regional
Jail and Correctional Facility Authority or the Department of
Health and Human Resources that the offender will be, or has
been, released from confinement, or accepted for supervision, or
has moved to a new address and will reside at the address indicated. If a change occurs in the release plan, this
notification provision does not require an extension of the
release date.
(5) The State Police may not disclose the identity or any
identifying characteristics of the victims of or witnesses to the
offender's offenses.
(6) The State Police shall continue to disclose information
on an offender as required by this subsection for as long as the
offender is required to register under this article. This
requirement to continue to disclose information also applies to
an offender who lacks a primary address.
(7) The State Police shall post information on an offender
assigned to risk level III on the Internet as required in
subsection (f) of this section.
(8) An offender who is the subject of a community
notification meeting held pursuant to this section may not attend
the meeting.
(9) When a school, day care facility, or other entity or
program that primarily educates or serves children receives
notice under paragraph(C) of this section, that a level III sex
offender resides or works in the surrounding community, notice to
parents must be made as provided in this subdivision. If the sex
offender identified in the notice is participating in programs
offered by the facility that require or allow the person to
interact with children other than the person's children, the
principal or head of the entity must notify parents with children
at the facility of the contents of the notice received pursuant
to this section. The immunity provisions of subsection (j) of
this section apply to persons disclosing information under this
subdivision.
(f) The State Police shall create and maintain an Internet
Web site and post on the site the information about offenders
assigned to risk level III. This information must be updated in
a timely manner to account for changes in the offender's address
and maintained for the period of time that the offender remains
subject to community notification as a level III offender.
(g) (1) The State Police shall disclose the registrant
status of any sex offender required to register under this
article to a health care facility if the registered offender is
receiving inpatient care in that facility.
(2) As used in this section "health care facility" means a
publicly or privately owned facility, agency or entity that
offers or provides health care services, whether a for-profit or
nonprofit entity and whether or not licensed, or required to be
licensed, in whole or in part, and includes, but is not limited
to, hospitals; skilled nursing facilities; kidney disease
treatment centers, including free-standing hemodialysis units;
intermediate care facilities; ambulatory health care facilities;
ambulatory surgical facilities; home health agencies; hospice
agencies; rehabilitation facilities; health maintenance organizations; and community mental health and mental retardation
facilities. For purposes of this definition, "community mental
health and mental retardation facility" means a private facility
which provides such comprehensive services and continuity of care
as emergency, outpatient, partial hospitalization, inpatient or
consultation and education for individuals with mental illness,
mental retardation or drug or alcohol addiction.
(h) At least sixty days before a sex offender is released
from confinement, the Division of Corrections, the Regional Jail
and Correctional Facility Authority or the Department of Health
and Human Resources, shall give to the State Police all relevant
information that the division, the authority or the department
has concerning the offender, including information on risk
factors in the offender's history. Within five days after
receiving the offender's approved release plan from the hearings
and release unit, the Division of Corrections of the Regional
Jail and Correctional Facility Authority shall give to the State
Police all relevant information the department has concerning the
offender, including information on risk factors in the offender's
history and the risk level to which the offender was assigned.
If the offender's risk level was assigned under the circumstances
described in subparagraph(ii), paragraph(d), subdivision(3) of
this section, the appropriate department shall give the State
Police all relevant information that the department or authority
has concerning the offender, including information on the risk
factors in the offender's history and the offender's risk level
within five days of the risk level assignment or reassignment.
(i) (1) An offender assigned or reassigned to risk level II
or III under subdivision(3),subsection(c),subdivision(5)or(8) has
the right to seek administrative review of an end-of-confinement
review committee's risk assessment determination. The offender
must exercise this right within fourteen days of receiving notice
of the committee's decision by notifying the chair of the
committee. Upon receiving the request for administrative review,
the chair shall notify: (A) The offender; (B) the victim or
victims of the offender's offense who have requested disclosure
or their designee; (C) the law-enforcement agency that
investigated the offender's crime of conviction or, where
relevant, the law-enforcement agency having primary jurisdiction
where the offender was committed; (D) the State Police, providing
that the release plan has been approved by the hearings and
release unit of the Division of Corrections or Regional Jail and
Correctional Facility Authority; and (E) any other individuals
the chair may select. The notice shall state the time and place
of the hearing. A request for a review hearing may not
interfere with or delay the notification process under
subsections (e) and (h) of this section, unless the
administrative law judge orders otherwise for good cause shown.
(2) An offender who requests a review hearing must be given
a reasonable opportunity to prepare for the hearing. The review hearing shall be conducted on the record before an administrative
law judge. The review hearing shall be conducted at the
correctional facility, regional jail or mental health treatment
facility in which the offender is currently confined. If the
offender no longer is incarcerated, the administrative law judge
shall determine the place where the review hearing will be
conducted. The offender has the burden of proof to show, by a
preponderance of the evidence, that the end-of-confinement review
committee's risk assessment determination was erroneous. The
Attorney General or a designee shall defend the end-of-
confinement review committee's determination. The offender has
the right to be present and be represented by counsel at the
hearing, to present evidence in support of the offender's
position, to call supporting witnesses and to cross-examine
witnesses testifying in support of the committee's determination.
Indigent offenders shall be provided legal counsel.
(3) After the hearing is concluded, the administrative law
judge shall decide whether the end-of-confinement review
committee's risk assessment determination was erroneous and,
based on this decision, shall either uphold or modify the review
committee's determination. The judge's decision shall be in
writing and shall include the judge's reasons for the decision.
The judge's decision shall be final and a copy of it shall be
given to the offender, the victim, the law-enforcement agency,
and the chair of the end-of-confinement review committee.
(4) The review hearing is subject to the contested case
provisions section four, article five, chapter twenty-nine-A of
this code.
(5) The administrative law judge may seal any portion of the
record of the administrative review hearing to the extent
necessary to protect the identity of a victim of or witness to
the offender's offense.
(j) (1) A state or local agency or official, or a private
organization or individual authorized to act on behalf of a state
or local agency or official, is not criminally liable for
disclosing or failing to disclose information as permitted by
this section.
(2) A state or local agency or official, or a private
organization or individual authorized to act on behalf of a state
or local agency or official, is not civilly liable for failing to
disclose information under this section.
(3) A state or local agency or official, or a private
organization or individual authorized to act on behalf of a state
or local agency or official, is not civilly liable for disclosing
information as permitted by this section. However, this
subdivision applies only to disclosure of information that is
consistent with the offender's conviction history. It does not
apply to disclosure of information relating to conduct for which
the offender was not convicted.
(b) (k) (1) At least sixty days before the release of any inmate convicted of an offense requiring registration under
article, the commissioner, executive director, or secretary shall
send written notice of the impending release to the sheriff of
the county and the police chief of the city in which the inmate
will reside or in which placement will be made in a work release
program. The sheriff of the county where the offender was
convicted also shall be notified of the inmate's impending
release.
(2) The same notice shall be sent to the following persons
concerning a specific inmate convicted of an offense requiring
registration under this article:
(A) The victim of the crime for which the inmate was
convicted or a deceased victim's next of kin if the victim or
deceased victim's next of kin requests the notice in writing;
(B) Any witnesses who testified against the inmate in any
court proceedings involving the offense, if the witness requests
the notice in writing; and
(C) Any person specified in writing by the prosecuting
attorney.
The notice sent to victims under paragraph (A) must inform
the person that the person has the right to request and receive
information about the offender authorized for disclosure under
the
community notification provisions of this section. If the victim
or witness is under the age of sixteen, the notice required by
this subsection shall be sent to the parents or legal guardian of
the child. The commissioner, executive director or secretary
shall send the notices required by this provision to the last
address provided by the requesting party. The requesting party
shall furnish the commissioner, executive director or secretary
with a current address. Information regarding witnesses
requesting the notice, information regarding any other person
specified in writing by the prosecuting attorney to receive the
notice, and the notice are private data on individuals and are
not available to the inmate.
(3) The existence of the notice requirements contained in
this subsection shall in no event require an extension of the
release date.
(l) Information concerning persons whose names are contained
in the sex offender registry is not subject to the requirements
of the West Virginia Freedom of Information Act, as set forth in
chapter twenty-nine-b of this code, and may be disclosed and
disseminated only as otherwise provided in this article.
and as
follows:
(1) (m) When a person has been determined to be a sexually
violent predator under the terms of section two-a of this
article, the State Police shall notify the prosecuting attorney
of the county in which the person resides, owns or leases
habitable real property that he or she regularly visits, is
employed or attends a school or training facility. The prosecuting attorney shall cooperate with the State Police in
conducting a community notification program which is to include
publication of the offender's name, photograph, place of
residence, location of regularly visited habitable real property
owned or leased by the offender, county of employment and place
at which the offender attends school or a training facility, as
well as information concerning the legal rights and obligations
of both the offender and the community. Information relating to
the victim of an offense requiring registration may not be
released to the public except to the extent the prosecuting
attorney and the State Police consider it necessary to best
educate the public as to the nature of sexual offenses:
Provided, That no victim's name may be released in any public
notification pursuant to this subsection. No information
relating to telephone or electronic paging device numbers a
registrant has or uses may be released to the public with this
notification program. The prosecuting attorney and State Police
may conduct a community notification program in the county where
a person who is required to register for life under the terms of
subdivision (2), subsection (a), section four of this article
resides, owns or leases habitable real property that he or she
regularly visits, is employed or attends a school or training
facility. Community notification may be repeated when determined
to be appropriate by the prosecuting attorney.
(2) The State Police shall maintain and make available to
the public at least quarterly the list of all persons who are
required to register for life according to the terms of
subdivision (2), subsection (a), section four of this article.
No information concerning the identity of a victim of an offense
requiring registration or telephone or electronic paging device
numbers a registrant has or uses may be released with this list.
The method of publication and access to this list are to be
determined by the superintendent; and
(3) A resident of a county may petition the circuit court
for an order requiring the State Police to release information
about persons that reside or own or lease habitable real property
that the persons regularly visit in that county and who are
required to register under section two of this article. The
court shall determine whether information contained on the list
is relevant to public safety and whether its relevance outweighs
the importance of confidentiality. If the court orders
information to be released, it may further order limitations upon
secondary dissemination by the resident seeking the information.
In no event may information concerning the identity of a victim
of an offense requiring registration or information relating to
telephone or electronic paging device numbers a registrant has or
uses be released.
(c) (n) The State Police may furnish information and
documentation required in connection with the registration to
authorized law-enforcement, campus police and governmental agencies of the United States and its territories, of foreign
countries duly authorized to receive the same, of other states
within the United States and of the State of West Virginia upon
proper request stating that the records will be used solely for
law-enforcement-related purposes. The State Police may disclose
information collected under this article to federal, state and
local governmental agencies responsible for conducting
preemployment checks. The State Police also may disclose
information collected under this article to the Division of Motor
Vehicles pursuant to the provisions of section three, article
two, chapter seventeen-b of this code.
(d) (o) An elected public official, public employee or
public agency is immune from civil liability for damages arising
out of any action relating to the provisions of this section
except when the official, employee or agency acted with gross
negligence or in bad faith.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-3. Suspension of sentence and release on probation.
(a) Whenever, upon the conviction of any person eligible for
probation under the preceding section, it shall appear to the
satisfaction of the court that the character of the offender and
the circumstances of the case indicate that he is not likely
again to commit crime and that the public good does not require
that he be fined or imprisoned, the court, upon application or of
its own motion, may suspend the imposition or execution of
sentence and release the offender on probation for such period
and upon such conditions as are provided by this article; but in
no case, except as provided by the following section, shall the
court have authority to suspend the execution of a sentence after
the convicted person has been imprisoned for sixty days under the
sentence.
(b) Any person released on probation must participate as a
condition of probation in the litter control program of the
county to the extent directed by the court, unless the court
specifically finds that this alternative service would be
inappropriate.
(c) In any case in which a person is convicted of an
offense requiring registration as a sex offender pursuant to
section two, article twelve, chapter fifteen of this code and the
court grants a suspension of the imposition or execution of
sentence and releases the offender on probation for such period
and upon such conditions as are provided by this article, the
probation officer who is assigned to supervise the offender shall
provide in writing to the following the fact that the offender is
on probation and the terms and conditions of probation:
(1) The victim of and any witnesses to the offense committed
by the offender, if the victim or the witness has requested
notice; and
(2) The State Police.
The State Police, in consultation with the offender's
probation officer, may provide all or part of this information to
any of the following agencies or groups the offender is likely to
encounter: public and private educational institutions, day care
establishments, and establishments or organizations that
primarily serve individuals likely to be victimized by the
offender. The State Police, in consultation with the offender's
probation officer, also may disclose the information to
individuals the probation officer believes are likely to be
victimized by the offender. The probation officer is not
required under this subdivision to provide any notice while the
offender is placed or resides in a licensed residential facility,
if the facility staff is trained in the supervision of sex
offenders.
(d) Nothing in subsection (c) of this section may be
interpreted to impose a duty on any person to use any information
regarding an offender about whom notification is made under this
section.
NOTE: This bill provides that at least 90 days before a sex
offender is to be released, a committee that includes a licensed
sex offender treatment provider, a law-enforcement official, and
a caseworker who handles sex offenders, convenes to determine the
risk that a particular sex offender will reoffend. They take
into consideration a wide range of factors, including the
circumstances of the sex offense which produced the conviction.
The panel decides the level a which an offender will be subject
to community notification. The extent of the information
disclosed and the community to whom disclosure is made must
relate to the level of danger posed by the offender, to the
offender's pattern of offending behavior, and to the need of
community members for information to enhance their individual and
collective safety. Low-risk offenders' information is given to
law-enforcement officials in the jurisdiction where the offender
will reside, as well as to the victims of and any witnesses to
the individual's offense. Moderate- to high-level risk offenders'
information may also be given, as appropriate, to area schools,
daycares, and healthcare centers, and the police may hold a
community meeting to explain the risks a particular sex offender
poses for the community. A convicted sex offenders may appeal
their registration status every two years to a panel of experts
that includes law enforcement and treatment providers. The panel
has the authority to reassess the convicted sex offender's level
of dangerousness and adjust his or her risk level accordingly.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
This bill was recommended for introduction and passage during the 2010 Regular Session of the Legislature by the Joint
Standing Committee on the Judiciary.