H. B. 4631
(By Delegates Yost and Moore)
[Introduced February 17, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §15-12-1a, §15-12-2a and §15-12-2b of
the Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new article, designated §62-11D-1,
§62-11D-2, §62-11D-3, §62-11D-4, §62-11D-5, §62-11D-6,
§62-11D-7, §62-11D-8, §62-11D-9, §62-11D-10, §62-11D-11,
§62-11D-12, §62-11D-13, §2-11D-14, 62-11D-15, §62-11D-16,
§62-11D-17, §62-11D-18, §62-11D-19 and §62-11D-20, all
relating to establishing a procedure for committing sexually
violent predators; setting forth certain findings; requiring
notice to prosecuting attorney of proposed release of sexually
violent predator; providing for the filing of a commitment
petition for a sexually violent predator; providing for a
probable cause hearing on the petition; setting forth certain
rights of the parties; requiring the filing of a petition for
conditional release; setting forth procedures for determining unconditional discharge of sexually violent predator;
providing for hearing on least restrictive alternative;
conditional release to a less restrictive setting; providing
for the apprehension of persons placed in less restrictive
alternatives; hearing and revocation of placement; setting
forth certain responsibilities of the Department of Health and
Human Resources; approval of community service personnel by
Department of Health and Human Resources; providing for the
release of certain information; procedure on escape or
disappearance of violent sexual offenders; notice of escape
and recapture; and proposing of rules for legislative
approval.
Be it enacted by the Legislature of West Virginia:
That §15-12-1a, §15-12-2a and §15-12-2b of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that
said code be amended by adding thereto a new article, designated
§62-11D-1, §62-11D-2, §62-11D-3, §62-11D-4, §62-11D-5, §62-11D-6,
§62-11D-7, §62-11D-8, §62-11D-9, §62-11D-10, §62-11D-11,
§62-11D-12, §62-11D-13, §62-11D-14, §62-11D-15, §62-11D-16,
§62-11D-17, §62-11D-18, §62-11D-19 and §62-11D-20, all to read as
follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-1a. Intent and findings.
(a) It is the intent of this article to assist law-enforcement
agencies' efforts to protect the public from sex offenders by
requiring sex offenders to register with the State Police
detachment in the county where he or she shall reside and by making
certain information about sex offenders available to the public as
provided in this article. It is not the intent of the Legislature
that the information be used to inflict retribution or additional
punishment on any person convicted of any offense requiring
registration under this article. This article is intended to be
regulatory in nature and not penal.
(b) The Legislature finds and declares that there is a
compelling and necessary public interest that the public have
information concerning persons convicted of sexual offenses in
order to allow members of the public to adequately protect
themselves and their children from these persons.
(c) The Legislature also finds and declares that persons
required to register as sex offenders pursuant to this article have
a reduced expectation of privacy because of the state's interest in
public safety.
(d) The Legislature finds that a small but extremely dangerous
group of sexually violent predators exist who do not have a mental
disease or defect that renders them appropriate for the existing
involuntary treatment provisions of this code, which is intended to
be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental
disorders and then return them to the community. In contrast to
persons appropriate for civil commitment, sexually violent
predators generally have personality disorders and mental
abnormalities which are not amenable to existing mental illness
treatment modalities and those conditions render them likely to
engage in sexually violent behavior. The Legislature further finds
that sex offenders' likelihood of engaging in repeat acts of
predatory sexual violence is high. The existing involuntary
commitment procedure, is inadequate to address the risk to reoffend
because during confinement these offenders do not have access to
potential victims and therefore they will not engage in an overt
act during confinement as required by the involuntary treatment act
for continued confinement. The Legislature further finds that the
prognosis for curing sexually violent offenders is poor, the
treatment needs of this population are very long-term, and the
treatment modalities for this population are very different than
the traditional treatment modalities for people appropriate for
commitment under the involuntary treatment act.
§
15-12-2a. Court determination of sexually violent predator.
(a) The circuit court that has sentenced a person for the
commission of a sexually violent offense or that has entered a
judgment of acquittal of a charge of committing a sexually violent
offense in which the defendant has been found not guilty by reason of mental illness, mental retardation or addiction shall make a
determination whether:
(1) A person is a sexually violent predator; or
(2) A person is not a sexually violent predator.
(b) A hearing to make a determination as provided in
subsection (a) of this section is a summary proceeding, triable
before the court without a jury.
(c) A proceeding seeking to establish that a person is a
sexually violent predator
upon conviction or finding of not guilty
by reason of mental illness, mental retardation or addiction is
initiated by the filing of a written pleading by the prosecuting
attorney. The pleading shall describe the record of the judgment
of the court on the person's conviction or finding of not guilty by
reason of mental illness, mental retardation or addiction of a
sexually violent offense and shall set forth a short and plain
statement of the prosecutor's claim that the person suffers from a
mental abnormality or personality disorder that makes the person
likely to engage in predatory sexually violent offenses.
(d) Prior to making a determination pursuant to the
provisions of this section, the sentencing court may order a
psychiatric or other clinical examination and, after examination,
may further order a period of observation in an appropriate
facility within this state designated by the court after
consultation with the Director of the Division of Health.
(e) Prior to making a determination pursuant to the provisions
of this section, the sentencing court shall request and receive a
report by the board established pursuant to section two-b of this
article. The report shall set forth the findings and
recommendation of the board on the issue of whether the person is
a sexually violent predator.
(f) At a hearing to determine whether a person is a sexually
violent predator, the person shall be present and shall have the
right to be represented by counsel, introduce evidence and
cross-examine witnesses. The offender shall have access to a
summary of the medical evidence to be presented by the state. The
offender shall have the right to an examination by an independent
expert of his or her choice and testimony from the expert as a
medical witness on his or her behalf. At the termination of the
hearing the court shall make a finding of fact upon a preponderance
of the evidence as to whether the person is a sexually violent
predator.
(g) If a person is determined by the circuit court to be a
sexually violent predator, the clerk of the court shall forward a
copy of the order to the State Police in the manner promulgated in
accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(h) Notwithstanding any other provision of this code to the
contrary, no person determined to be a sexually violent predator under the provisions of this section may be released from
confinement until a commitment hearing is held under the provisions
of article eleven-d, chapter sixty-two of this code.
§15-12-2b. Creation of sex offender registration advisory board.
(a) There is hereby created within the Department of Military
Affairs and Public Safety a sex offender registration advisory
board consisting of a minimum of five members appointed by the
Secretary of the Department of Military Affairs and Public Safety.
At least two of the members shall be experts in the field of the
behavior and treatment of sexual offenders, and each shall be a
physician, psychologist or social worker in the employ of this
state appointed by the secretary in consultation with the director
of the Division of Health. The remaining members shall be victims
rights advocates and representatives of law-enforcement agencies.
Members of the board shall be reimbursed their reasonable expenses
pursuant to the rules promulgated by the Department of
Administration for the reimbursement of expenses of state officials
and employees and shall receive no other compensation for their
services. The board shall utilize the staff of the division or
office within the Department of Military Affairs and Public Safety
designated by the secretary thereof in carrying out its duties and
responsibilities as set forth in this article.
(b) The board shall assist the circuit courts of this state in
determining whether persons convicted of sexually violent offenses are sexually violent predators
at sentencing: Provided, That the
provisions of article eleven-d, chapter sixty-two shall govern the
procedure for determining, prior to release to the community,
whether an incarcerated or committed person is a sexually violent
predator for the purposes of committing that person under the
provisions of article eleven-d, chapter sixty-two.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11D. SEXUALLY VIOLENT PREDATOR COMMITMENT ACT.
§62-11D-1. Definitions.
Unless the context clearly requires otherwise, the definitions
in this section apply throughout this article.
(1) "Department" means the Department of Health and Human
Resources.
(2) "Health care facility" means any hospital, hospice care
center, licensed or certified health care facility or health
maintenance organization or other licensed facility designated by
the secretary for the purposes of this article as a health care
facility.
(3) "Health care practitioner" means an individual or firm
licensed or certified to engage actively in a regulated health
profession.
(4) "Health care services" means those services provided by
licensed health care professionals.
(5) "Health profession" means those health professions
licensed under the provisions of this code to provide health care
services.
(6) "Less restrictive alternative" means court-ordered
treatment in a setting less restrictive than total confinement.
(7) "Likely to engage in predatory acts of sexual violence if
not confined in a secure facility" means that the person more
probably than not will engage in sexual predatory acts if released
unconditionally from detention. The "likely to engage in predatory
acts of sexual violence" finding must be shown by evidence of a
recent overt act if the person is not confined at the time the
petition is filed.
(8) "Mental abnormality" means a congenital or acquired
condition affecting the emotional or volitional capacity which
predisposes the person to the commission of criminal sexual acts
which make the person a menace to the health and safety of others.
(9) "Predatory" means an act or series of actions directed
toward others for the primary purpose of making them victims of
sexual violence.
(10) "Recent overt act" means any act or threat that has
either caused harm of a sexually violent nature or creates a
reasonable apprehension of harm in the mind of an objective person
with knowledge of the history and mental condition of the person
engaging in the act.
(11) "Risk potential activity" or "risk potential facility"
means an activity or facility that provides a higher incidence of
risk to the public from persons conditionally released from the
special commitment center. Risk potential activities and
facilities include: Public and private schools, school bus stops,
licensed day-care and licensed preschool facilities, public parks,
publicly dedicated trails, sports fields, playgrounds, recreational
and community centers, churches, synagogues, temples, mosques,
public libraries, public and private youth camps, and others
identified by the department. For purposes of this article,
"school bus stops" do not include bus stops established primarily
for public transit.
(12) "Secretary" means the Secretary of Health and Human
Resources or the secretary's designee.
(13) "Secure facility" means a residential facility for
persons civilly confined under the provisions of this chapter that
includes security measures sufficient to protect the community.
These facilities include total confinement facilities, secure
community transition facilities, and any secured residence used as
a court-ordered placement.
(14) "Secure community transition facility" means a
residential facility for persons civilly committed and
conditionally released to a less restrictive alternative under this
article. A secure community transition facility has supervision and security, and either provides or ensures the provision of sex
offender treatment services. Secure community transition
facilities include but are not limited to a facility established
pursuant to this article and any community-based facility
established under this article and operated by the secretary or
under contract with the secretary.
(15) "Sexually violent offense" means an act committed on,
before, or after July 1, the first day of July, one thousand nine
hundred ninety, that is: (a) An act defined in section two, article
twelve, chapter fifteen of this code, or any federal or
out-of-state conviction for a felony offense that under the laws of
this state would be a sexually violent offense as defined in this
subsection; (b) an act of murder in the first or second degree,
assault in the first or second degree, assault of a child in the
first or second degree, kidnapping in the first or second degree,
burglary in the first degree, residential burglary, or unlawful
imprisonment, which act, either at the time of sentencing for the
offense or subsequently during civil commitment proceedings
pursuant to this chapter, has been determined beyond a reasonable
doubt to have been sexually motivated, as that term is defined; or
(c) an act as described that is an attempt to commit a crime set
forth in subsections (a) or (b) of this section.
(16) "Sexually violent predator" means any person who has been
convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which
makes the person likely to engage in predatory acts of sexual
violence if not confined in a secure facility.
(17) "Total confinement facility" means a secure facility that
provides supervision and sex offender treatment services in a total
confinement setting. Total confinement facilities include the
special commitment center and any similar facility designated as a
total confinement facility by the Secretary of Health and Human
Resources.
§62-11D-2. Notice to prosecuting attorney prior to release.
(a) When it appears that a person may meet the criteria of a
sexually violent predator, the agency with jurisdiction shall refer
the person in writing to the prosecuting attorney of the county
where that person was charged, three months prior to:
(1) The anticipated release from total confinement of a person
who has been convicted of a sexually violent offense;
(2) The anticipated release from total confinement of a person
found to have committed a sexually violent offense as a juvenile;
(3) Release of a person who has been charged with a sexually
violent offense and who has been determined to be incompetent to
stand trial; or
(4) Release of a person who has been found not guilty by
reason of insanity of a sexually violent offense.
The agency with jurisdiction shall provide the prosecuting attorney with all relevant information including but not limited to
the following information:
(i) A complete copy of the institutional records compiled by
the Division of Corrections relating to the person, and any
out-of-state department of corrections' records, if available;
(ii) A complete copy, if applicable, of any file compiled by
the parole board relating to the person;
(iii) All records relating to the psychological or psychiatric
evaluation and treatment of the person;
(iv) A current record of all prior arrests and convictions,
and full police case reports relating to those arrests and
convictions; and
(v) A current mental health evaluation or mental health
records review.
(2) This section applies to acts committed before, on, or
after the first day of July, nineteen ninety.
(3) The agency with jurisdiction, their employees, and
officials are immune from liability for any good-faith conduct
under this section.
(4) As used in this section, "agency with jurisdiction" means
that agency with the authority to direct the release of a person
serving a sentence or term of confinement and includes the Division
of Corrections, the regional jail authority, the parole board, and
the Department of Health and Human Resources.
§62-11D-3. Sexually violent predator petition.
When it appears that: (1) A person who, at any time
previously, has been convicted of a sexually violent offense and is
about to be released from total confinement on, before, or after
the first day of July, two thousand five; (2) a person found to
have committed a sexually violent offense as a juvenile is about to
be released from total confinement on, before, or after the first
day of July, two thousand five; (3) a person who has been charged
with a sexually violent offense and who has been determined to be
incompetent to stand trial is about to be released, or has been
released on, before, or after the first day of July, two thousand
five; (4) a person who has been found not guilty by reason of
insanity of a sexually violent offense is about to be released, or
has been released on, before, or after the first day of July, two
thousand five; or (5) a person who at any time previously has been
convicted of a sexually violent offense and has since been released
from total confinement and has committed a recent overt act; and it
appears that the person may be a sexually violent predator, the
prosecuting attorney of the county where the person was convicted
or charged may file a petition alleging that the person is a
"sexually violent predator" and stating sufficient facts to support
such allegation.
§62-11D-4.
Sexually violent predator petition; Probable cause
hearing; judicial determination; transfer for evaluation.
(1) Upon the filing of a petition, the judge shall determine
whether probable cause exists to believe that the person named in
the petition is a sexually violent predator. If the determination
is made, the judge shall direct that the person be taken into
custody.
(2) Within seventy-two hours after a person is taken into
custody pursuant to subsection (1) of this section, the court shall
provide the person with notice of, and an opportunity to appear in
person at, a hearing to contest probable cause as to whether the
person is a sexually violent predator. At this hearing, the court
shall: (a) Verify the person's identity; and (b) determine whether
probable cause exists to believe that the person is a sexually
violent predator. At the probable cause hearing, the state may
rely upon the petition and certification for determination of
probable cause. The state may supplement this with additional
documentary evidence or live testimony.
(3) At the probable cause hearing, the person shall have the
following rights in addition to the rights previously specified:
(a) To be represented by counsel; (b) to present evidence on his or
her behalf; (c) to cross-examine witnesses who testify against him
or her; and (d) to view and copy all petitions and reports in the
court file.
(4) If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate
facility for an evaluation as to whether the person is a sexually
violent predator. The evaluation shall be conducted by a person
deemed to be professionally qualified to conduct an examination
pursuant to rules proposed by the Secretary of the Department of
Health and Human Resources.
The
Secretary of the Department of
Health and Human Resources
is hereby directed to propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, to implement the
provisions of this section
. In adopting rules, the secretary shall
consult with the Division of Corrections, the Supreme Court of
Appeals and the parole board. In no event may the person be
released from confinement prior to trial. A witness called by
either party may testify by telephone.
§62-11D-5. Trial; rights of parties.
(1) Within forty-five days after the completion of any hearing
held, the court shall conduct a trial to determine whether the
person is a sexually violent predator. The trial may be continued
upon the request of either party and a showing of good cause, or by
the court on its own motion in the due administration of justice,
and when the respondent will not be substantially prejudiced. At
all stages of the proceedings under this article, any person
subject to being determined a violent sexual predator prior to
release under this article shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint
counsel to assist him or her. The person shall be confined in a
secure facility for the duration of the trial.
(2) Any person subjected to an examination for determination
as a violent sexual predator prior to release under this article,
may retain experts or professional persons to perform an
examination on their behalf. When the person wishes to be examined
by a qualified expert or professional person of his or her own
choice, the examiner shall be permitted to have reasonable access
to the person for the purpose of examination, as well as to all
relevant medical and psychological records and reports. In the
case of a person who is indigent, the court shall, upon the
person's request, assist the person in obtaining an expert or
professional person to perform an examination or participate in the
trial on the person's behalf.
(3) The person, the prosecuting attorney or the judge have the
right to demand that the trial be before a twelve-person jury. If
no demand is made, the trial shall be before the court.
§62-11D-6. Trial; determination; commitment procedures.
The court or jury shall determine whether, beyond a reasonable
doubt, the person is a sexually violent predator. In determining
whether or not the person would be likely to engage in predatory
acts of sexual violence if not confined in a secure facility, the
fact finder may consider only placement conditions and voluntary treatment options that would exist for the person if
unconditionally released from detention on the sexually violent
predator petition. When the determination is made by a jury, the
verdict must be unanimous.
If, on the date that the petition is filed, the person is
living in the community after release from custody, the state must
also prove beyond a reasonable doubt that the person committed a
recent overt act. If the state alleges that the prior sexually
violent offense that forms the basis for the petition for
commitment was an act that was sexually motivated, the state must
prove beyond a reasonable doubt that the alleged sexually violent
act was sexually motivated.
If the court or jury determines that the person is a sexually
violent predator, the person shall be committed to the custody of
the Department of Health and Human Resources for placement in a
secure facility operated by the department for control, care, and
treatment until such time as: (a) The person's condition has so
changed that the person no longer meets the definition of a
sexually violent predator; or (b) conditional release to a less
restrictive alternative is in the best interest of the person and
conditions can be imposed that would adequately protect the
community.
§62-11D-7. Annual examinations of persons committed under chapter.
Each person committed under the provisions of this article shall have a current examination of his or her mental condition
made by the Department of Health and Human Resources at least once
every year. The annual report shall include consideration of
whether the committed person currently meets the definition of a
sexually violent predator and whether conditional release to a less
restrictive alternative is in the best interest of the person and
conditions can be imposed that would adequately protect the
community. The Department of Health and Human Resources shall file
this periodic report on the status of each person committed under
this article with the court committing the person. The report
shall be certified and shall be prepared by a professionally
qualified person as defined by rules proposed by the secretary. A
copy of the report shall be served on the prosecuting attorney
involved in the initial commitment and upon the committed person
and his or her counsel. The committed person may retain, or if he
or she is indigent and so requests, the court may appoint a
qualified expert or a professional person to examine him or her,
and the expert or professional person shall have access to all
records concerning the person.
§62-11D-8. Rights of persons committed.
(1) Any person subjected to restricted liberty as a sexually
violent predator pursuant to this article shall not forfeit any
legal right or suffer any legal disability as a consequence of any
actions taken or orders made, other than as specifically provided in this article.
(2) Any person committed has the right to adequate care and
individualized treatment. The Department of Health and Human
Resources shall maintain records detailing all medical, expert, and
professional care and treatment received by a committed person and
shall keep copies of all reports of periodic examinations of the
person. All records and reports shall be made available upon
request only to: The committed person; his or her attorney; the
prosecuting attorney; the court; or, another expert or professional
person who, upon proper showing, demonstrates a need for access to
the records.
(3) At the time a person is taken into custody or transferred
into a facility pursuant to a petition, the professional person in
charge of the facility or his or her designee shall take reasonable
precautions to inventory and safeguard the personal property of the
person detained or transferred. A copy of the inventory, signed by
the staff member making it, shall be given to the person detained
and shall, in addition, be open to inspection to any responsible
relative or representative, subject to limitations, if any,
specifically imposed by the detained person. For purposes of this
subsection, "responsible relative or representative" includes the
guardian, conservator, attorney, spouse, parent, adult child, or
adult brother or sister of the person. The facility shall not
disclose the contents of the inventory to any other person without the consent of the committed person or by order of the court.
(4) Nothing in this article prohibits a person presently
committed from exercising a right available to him or her for the
purpose of obtaining release from confinement, including the right
to petition for a writ of habeas corpus.
(5) No indigent person may be conditionally released or
unconditionally discharged under this article without suitable
clothing, and the secretary shall furnish the person with money as
may be required for persons without funds who are released from
correctional institutions. As funds are available, the secretary
may provide payment to an indigent person conditionally released.
§62-11D-9.
Petition for conditional release to less restrictive
alternative or unconditional discharge; procedures.
(1) If the secretary determines that the person's condition
has so changed that either: (a) The person no longer meets the
definition of a sexually violent predator; or (b) conditional
release to a less restrictive alternative is in the best interest
of the person and conditions can be imposed that adequately protect
the community, the secretary shall authorize the person to petition
the court for conditional release to a less restrictive alternative
or unconditional discharge. The petition shall be filed with the
court and served upon the prosecuting agency responsible for the
initial commitment. The court, upon receipt of the petition for
conditional release to a less restrictive alternative or unconditional discharge, shall within forty-five days order a
hearing.
(2)(a) Nothing contained in this article shall prohibit the
person from otherwise petitioning the court for conditional release
to a less restrictive alternative or unconditional discharge
without the secretary's approval. The secretary shall provide the
committed person with an annual written notice of the person's
right to petition the court for conditional release to a less
restrictive alternative or unconditional discharge over the
secretary's objection. The notice shall contain a waiver of
rights. The secretary shall file the notice and waiver form and
the annual report with the court. If the person does not
affirmatively waive the right to petition, the court shall set a
show cause hearing to determine whether probable cause exists to
warrant a hearing on whether the person's condition has so changed
that: (i) He or she no longer meets the definition of a sexually
violent predator; or (ii) conditional release to a proposed less
restrictive alternative would be in the best interest of the person
and conditions can be imposed that would adequately protect the
community.
(b) The committed person shall have a right to have an
attorney represent him or her at the show cause hearing, which may
be conducted solely on the basis of affidavits or declarations, but
the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting attorney shall present
prima facie evidence establishing that the committed person
continues to meet the definition of a sexually violent predator and
that a less restrictive alternative is not in the best interest of
the person and conditions cannot be imposed that adequately protect
the community. In making this showing, the state may rely
exclusively upon the annual report. The committed person may
present responsive affidavits or declarations to which the state
may reply.
(c) If the court at the show cause hearing determines that
either: (i) The state has failed to present prima facie evidence
that the committed person continues to meet the definition of a
sexually violent predator and that no proposed less restrictive
alternative is in the best interest of the person and conditions
cannot be imposed that would adequately protect the community; or
(ii) probable cause exists to believe that the person's condition
has so changed that: (A) The person no longer meets the definition
of a sexually violent predator; or (B) release to a proposed less
restrictive alternative would be in the best interest of the person
and conditions can be imposed that would adequately protect the
community, then the court shall set a hearing on either or both
issues.
(d) If the court has not previously considered the issue of
release to a less restrictive alternative, either through a trial on the merits or through the procedures set forth in this article,
the court shall consider whether release to a less restrictive
alternative would be in the best interests of the person and
conditions can be imposed that would adequately protect the
community, without considering whether the person's condition has
changed.
(3)(a) At the hearing resulting from subsection (1) or (2) of
this section, the committed person shall be entitled to be present
and to the benefit of all constitutional protections that were
afforded to the person at the initial commitment proceeding. The
prosecuting attorney shall represent the state and shall have a
right to a jury trial and to have the committed person evaluated by
experts chosen by the state. The committed person shall also have
the right to a jury trial and the right to have experts evaluate
him or her on his or her behalf and the court shall appoint an
expert if the person is indigent and requests an appointment.
(b) If the issue at the hearing is whether the person should
be unconditionally discharged, the burden of proof shall be upon
the state to prove beyond a reasonable doubt that the committed
person's condition remains such that the person continues to meet
the definition of a sexually violent predator. Evidence of the
prior commitment trial and disposition is admissible.
(c) If the issue at the hearing is whether the person should
be conditionally released to a less restrictive alternative, the burden of proof at the hearing shall be upon the state to prove
beyond a reasonable doubt that conditional release to any proposed
less restrictive alternative either: (i) Is not in the best
interest of the committed person; or (ii) does not include
conditions that would adequately protect the community. Evidence
of the prior commitment trial and disposition is admissible.
(4)(a) Probable cause exists to believe that a person's
condition has "so changed," under subsection (2) of this section,
only when evidence exists, since the person's last commitment trial
proceeding, of a substantial change in the person's physical or
mental condition that he or she either, no longer meets the
definition of a sexually violent predator, or that a conditional
release to a less restrictive alternative is in the person's best
interest and conditions can be imposed to adequately protect the
community.
(b) A new trial proceeding under subsection (3) of this
section may be ordered, or held, only when there is current
evidence from a licensed professional of one of the following and
the evidence presents a change in condition since the person's last
commitment trial proceeding:
(i) An identified physiological change to the person, such as
paralysis, stroke, or dementia, that renders the committed person
unable to commit a sexually violent act and this change is
permanent; or
(ii) A change in the person's mental condition brought about
through positive response to continuing participation in treatment
which indicates that the person meets the standard for conditional
release to a less restrictive alternative or that the person would
be safe to be at large if unconditionally released from commitment.
(c) For purposes of this section, a change in a single
demographic factor, without more, does not establish probable cause
for a new trial proceeding under subsection (3) of this section.
As used in this section, a single demographic factor includes, but
is not limited to, a change in the chronological age, marital
status, or gender of the committed person.
(5) The jurisdiction of the court over a person civilly
committed pursuant to this article continues until such time as the
person is unconditionally discharged.
§62-11D-10.
Conditional release to less restrictive alternative;
findings.
Before the court may enter an order directing conditional
release to a less restrictive alternative, it must find the
following: (1) The person will be treated by a treatment provider
who is qualified to provide such treatment in this state; (2) the
treatment provider has presented a specific course of treatment and
has agreed to assume responsibility for the treatment and will
report progress to the court on a regular basis, and will report
violations immediately to the court, the prosecutor, the probation officer, and the director of a special commitment center; (3)
housing exists that is sufficiently secure to protect the
community, and the person or agency providing housing to the
conditionally released person has agreed in writing to accept the
person, to provide the level of security required by the court, and
immediately to report to the court, the prosecutor, the probation
officer, and the director of a special commitment center if the
person leaves the housing to which he or she has been assigned
without authorization; (4) the person is willing to comply with the
treatment provider and all requirements imposed by the treatment
provider and by the court; and (5) the person is willing to comply
with supervision requirements imposed by the Division of
Corrections, the Department of Health and Human Resources and the
parole board.
§62-11D-11. Conditional release to less restrictive alternative;
verdict.
(1) Upon the conclusion of the evidence in a hearing held
pursuant to section nine of this article or through summary
judgment proceedings prior to the hearing, if the court finds that
there is no legally sufficient evidentiary basis for a reasonable
jury to find that the conditions set forth in section ten of this
article have been met, the court shall grant a motion by the state
for a judgment as a matter of law on the issue of conditional
release to a less restrictive alternative.
(2) Whenever the issue of conditional release to a less
restrictive alternative is submitted to the jury, the court shall
instruct the jury to return a verdict in substantially the
following form: Has the state proved beyond a reasonable doubt
that either: (a) The proposed less restrictive alternative is not
in the best interests of respondent; or (b) does not include
conditions that would adequately protect the community? Answer:
Yes or No.
§62-11D-12.
Conditional release to less restrictive alternative;
judgment; conditions; annual review.
(1) If the court or jury determines that conditional release
to a less restrictive alternative is in the best interest of the
person and includes conditions that would adequately protect the
community, and the court determines that the minimum conditions set
forth in section ten of this article and in this section are met,
the court shall enter judgment and direct a conditional release.
(2) The court shall impose any additional conditions necessary
to ensure compliance with treatment and to protect the community.
If the court finds that conditions do not exist that will both
ensure the person's compliance with treatment and protect the
community, then the person shall be remanded to the custody of the
Department of Health and Human Resources for control, care, and
treatment in a secure facility.
(3) If the service provider designated by the court to provide inpatient or outpatient treatment or to monitor or supervise any
other terms and conditions of a person's placement in a less
restrictive alternative is other than the Department of Health and
Human Resources or the Division of Corrections, then the service
provider so designated must agree in writing to provide treatment,
monitoring, or supervision in accord with this section. Any person
providing or agreeing to provide treatment, monitoring, or
supervision services pursuant to this article may be compelled to
testify and any privilege with regard to such person's testimony is
deemed waived.
(4) Prior to authorizing any release to a less restrictive
alternative, the court shall impose conditions upon the person as
are necessary to ensure the safety of the community. The court
shall order the Division of Corrections and the Department of
Health and Human Resources to investigate the less restrictive
alternative and recommend any additional conditions to the court.
These conditions shall include, but are not limited to the
following: Specification of residence, prohibition of contact with
potential or past victims, prohibition of alcohol and other drug
use, participation in a specific course of inpatient or outpatient
treatment that may include monitoring by the use of polygraph and
plethysmograph, supervision by a Division of Corrections community
corrections officer, a requirement that the person remain within
the state unless the person receives prior authorization by the court, and any other conditions that the court determines are in
the best interest of the person or others. A copy of the
conditions of release shall be given to the person and to any
designated service providers.
(5) Any service provider designated to provide inpatient or
outpatient treatment shall monthly, or as otherwise directed by the
court, submit to the court, to the Department of Health and Human
Resources facility from which the person was released, to the
prosecutor of the county in which the person was found to be a
sexually violent predator, and to the probation officer, a report
stating whether the person is complying with the terms and
conditions of the conditional release to a less restrictive
alternative.
(6) Each person released to a less restrictive alternative
shall have his or her case reviewed by the court that released him
or her no later than one year after such release and annually
thereafter until the person is unconditionally discharged. Review
may occur in a shorter time or more frequently, if the court, in
its discretion on its own motion, or on motion of the person, the
secretary, or the prosecuting attorney so determines. The sole
question to be determined by the court is whether the person shall
continue to be conditionally released to a less restrictive
alternative. The court in making its determination shall be aided
by the periodic reports filed pursuant to subsection (5) of this section and the opinions of the secretary and other experts or
professional persons.
§62-11D-13. Conditional release to less restrictive alternative;
hearing on revocation or modification; authority to
apprehend conditionally released person.
(1) Any service provider submitting reports pursuant to this
article, the probation officer, the parole officer, or the
prosecuting attorney may petition the court, or the court on its
own motion may schedule an immediate hearing, for the purpose of
revoking or modifying the terms of the person's conditional release
to a less restrictive alternative if the petitioner or the court
believes the released person is not complying with the terms and
conditions of his or her release or is in need of additional care,
monitoring, supervision, or treatment.
(2) If the prosecuting attorney, the probation officer, parole
officer, or the court, based upon information received by them,
reasonably believes that a conditionally released person is not
complying with the terms and conditions of his or her conditional
release to a less restrictive alternative, the court, prosecuting
attorney, probation officer or parole officer may order that the
conditionally released person be apprehended and taken into custody
until a hearing can be scheduled to determine the facts and whether
or not the person's conditional release should be revoked or
modified. The court shall be notified before the close of the next judicial day of the person's apprehension. Both the prosecuting
attorney and the conditionally released person shall have the right
to request an immediate mental examination of the conditionally
released person. If the conditionally released person is indigent,
the court shall, upon request, assist him or her in obtaining a
qualified expert or professional person to conduct the examination.
(3) The court, upon receiving notification of the person's
apprehension, shall promptly schedule a hearing. The issue to be
determined is whether the state has proven by a preponderance of
the evidence that the conditionally released person did not comply
with the terms and conditions of his or her release. Hearsay
evidence is admissible if the court finds it otherwise reliable.
At the hearing, the court shall determine whether the person shall
continue to be conditionally released on the same or modified
conditions or whether his or her conditional release shall be
revoked and he or she shall be committed to total confinement,
subject to release only in accordance with provisions of this
article.
§62-11D-14.
Department of Health and Human Resources; duties;
reimbursement.
The Department of Health and Human Resources shall be
responsible for all costs relating to the evaluation and treatment
of persons committed to their custody whether in a secure facility
or under a less restrictive alternative under any provision of this article.
§62-11D-15.
Department of Health and Human Resources;
jurisdiction continues after criminal
conviction; exception.
A person subject to court order under the provisions of this
article who is thereafter convicted of a criminal offense remains
under the jurisdiction of the department following: (1) Completion
of the criminal sentence; or (2) release from confinement in a
state or local correctional facility, and shall be returned to the
custody of the department.
This section does not apply to persons subject to a court
order under the provisions of this article who are thereafter
sentenced to life without the possibility of release.
§62-11D-16.
Secretary of Health and Human Resources to approve
personnel and facilities.
Notwithstanding any other provision of this code to the
contrary, the Secretary of the Department of Health and Human
Resources shall determine the qualifications, character,
suitability, and competency requirements for employment or
engagement at a community facility provided in this article.
Information submitted to the department by the facility shall
include a criminal history records check for all employees of the
facility.
§62-11D-17. Release of information authorized.
In addition to any other information required to be released
under article twelve, chapter fifteen of this code, the department
is authorized, pursuant to release relevant information that is
necessary to protect the public, concerning a specific sexually
violent predator committed under this article.
§62-11D-18. Notice of escape or disappearance.
In the event of an escape by a person committed under this
article from a state institution or the disappearance of such a
person while on conditional release, the superintendent or
probation or parole officer shall notify the following as
appropriate: Local law-enforcement officers, other governmental
agencies, the person's relatives, and any other appropriate persons
about information necessary for the public safety or to assist in
the apprehension of the person.
§62-11D-19.
Notice of conditional release or unconditional
discharge; Notice of escape and recapture.
(1) At the earliest possible date, and in no event later than
thirty days before conditional release or unconditional discharge,
except in the event of escape, the Department of Health and Human
Resources shall send written notice of conditional release,
unconditional discharge, or escape, to the following:
(a) The chief of police of the city, if any, in which the person will reside or in which placement will be made under a less
restrictive alternative;
(b) The sheriff of the county in which the person will reside
or in which placement will be made under a less restrictive
alternative; and
(c) The sheriff of the county where the person was last
convicted of a sexually violent offense, if the department does not
know where the person will reside.
The department shall notify the State Police of the release of
all sexually violent predators and that information shall be placed
in the West Virginia crime information center for dissemination to
all law-enforcement.
(2) The same notice as required by subsection (1) of this
section shall be sent to the following if such notice has been
requested in writing about a specific person found to be a sexually
violent predator under this chapter:
(a) The victim or victims of any sexually violent offenses for
which the person was convicted in the past or the victim's next of
kin if the crime was a homicide. "Next of kin" as used in this
section means a person's spouse, parents, siblings and children;
(b) Any witnesses who testified against the person in his or
her commitment trial; and
(c) Any person specified in writing by the prosecuting
attorney.
Information regarding victims, next of kin, or witnesses
requesting the notice, information regarding any other person
specified in writing by the prosecuting attorney to receive the
notice, and the notice are confidential and shall not be available
to the committed person.
(3) If a person committed as a sexually violent predator under
this article escapes from a Department of Health and Human
Resources designated facility, the department shall immediately
notify, by the most reasonable and expedient means available, the
chief of police of the city and the sheriff of the county in which
the committed person resided immediately before his or her
commitment as a sexually violent predator, or immediately before
his or her incarceration for his or her most recent offense. If
previously requested, the department shall also notify the
witnesses and the victims of the sexually violent offenses for
which the person was convicted in the past or the victim's next of
kin if the crime was a homicide. If the person is recaptured, the
department shall send notice to the persons designated in this
subsection as soon as possible but in no event later than two
working days after the department learns of such recapture.
(4) If the victim or victims of any sexually violent offenses
for which the person was convicted in the past or the victim's next
of kin, or any witness is under the age of sixteen, the notice
required by this section shall be sent to the parents or legal guardian of the child.
(5) The Department of Health and Human Resources shall send
the notices required by this chapter to the last address provided
to the department by the requesting party. The requesting party
shall furnish the department with a current address.
(6) Nothing in this section shall impose any liability upon a
chief of police of a city or sheriff of a county for failing to
request in writing a notice as provided in subsection (1) of this
section.
§62-11D-20. Rule making.
The
Secretary of the Department of Health and Human Resources
is hereby directed to propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article relating to the citing of facilities, required community
involvement, public hearings, restrictions on facilities and staff,
protection of the public and compliance with federal laws, state
and federal court decisions relating to the treatment and
confinement of civilly committed violent sexual offenders.
NOTE: The purpose of this bill is to establish a procedure for
involuntary civil commitment of sexually violent predators. The
bill provides that before a sexually violent predator is released
from confinement, the prosecuting attorney for the county in which
the sexually violent predator was sentenced must be notified. The prosecuting attorney may then petition the court for a commitment
of the sexually violent person to a secure facility. The bill sets
up safeguards to protect the rights of persons accused of being a
sexually violent predator and provides for the placement of the
sexually violent predator determined to be less dangerous in less
restrictive community settings. The Department of Health and Human
Resources is responsible for providing secure facilities for
persons committed as sexually violent predators. Under the bill,
a sexually violent predator may be committed for his or her life if
he or she does not show improvement as determined by a court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Article §62-11D is new, therefore strike-throughs and
underscoring are omitted.