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Introduced Version House Bill 4175 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4175


(By Delegates Miley, Wooton, Barker,

Moore, Shook, Ferro, Ellem and Schoen)


[Introduced January 26, 2010; referred to the

Committee on the Judiciary then Finance.]




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; development of a risk assessment scale; establishment of 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; reassessment of 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the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an Act of the Legislature during the year 2000 legislative session;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.

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