HB 138 – AS INTRODUCED
2009 SESSION
04/03
HOUSE BILL 138
AN ACT revising certain provisions of the sexually violent predators statute.
SPONSORS: Rep. Charron, Rock 7; Rep. Welch, Rock 8; Rep. Pantelakos, Rock 16; Rep. Shurtleff, Merr 10; Rep. Crisler, Rock 4; Sen. Carson, Dist 14
COMMITTEE: Criminal Justice and Public Safety
This bill makes certain revisions to the statute governing involuntary commitment of sexually violent predators.
This is a request of the department of justice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0494
04/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT revising certain provisions of the sexually violent predators statute.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Involuntary Commitment of Sexually Violent Predators; Intent. Amend RSA 135-E:1 to read as follows:
135-E:1 Findings and Intent. The general court finds that a small but extremely dangerous number of sexually violent predators exist who [do not have a mental disease or defect that renders them appropriate for involuntary treatment under RSA 135-C, which is intended 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 antisocial personality features which are unamenable to existing mental illness treatment modalities, and those features render them likely to engage in criminal, sexually violent behavior. The general court further finds that the likelihood of sexually violent predators engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedures for the treatment and care of mentally ill persons are inadequate to address the risk these sexually violent predators pose to society. The general court further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different from the traditional treatment modalities for people appropriate for commitment under existing law. It is therefore the intent of the general court to create a civil commitment procedure for the long-term care and treatment of sexually violent predators. This procedure primarily targets individuals who are nearing completion of their maximum sentence of imprisonment, having being refused parole, who pose a high risk of repeated acts of predatory behavior if released to the community.
2 Involuntary Commitment of Sexually Violent Predators; Definitions. Amend RSA 135-E:2, XI-XIII to read as follows:
XI. “Sexually violent offense” means:
(a) Capital murder in violation of RSA 630:1, I(e);
(b) First degree murder in violation of RSA 630:1-a, I(b)(1);
(c) Aggravated felonious sexual assault in violation of RSA 632-A:2;
(d) Felonious sexual assault in violation of RSA 632-A:3;
(e) Kidnapping in violation of RSA 633:1, I(d), where the offender confined the victim with the purpose to commit sexual assault against the victim;
[(e)] (f) Burglary in violation of RSA 635:1, I, where the offender entered a building or occupied structure with the purpose to commit sexual assault;
[(f)] (g) An attempt, criminal solicitation, or conspiracy, to commit any of the offenses listed above; or
[(g)] (h) A violation of any other statute prohibiting the same conduct as the offenses listed above in another state, territory, or possession of the United States.
XII. “Sexually violent predator” means any person who:
(a) Has been convicted of a sexually violent offense; and
(b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment[; and
(c) Is not eligible for involuntary admission under RSA 135-C or RSA 171-B].
XIII. “Total confinement” means that the person is being held in any physically secure facility being operated by or contractually operated for the department of corrections [or the department of health and human services]. A person shall also be deemed to be in total confinement for applicability of provisions under this chapter if the person is serving an incarcerative sentence under the custody of the department of corrections [or is being held in any other secure facility for any reason]. A person is not subject to total confinement if the person is subject to an incarcerative sentence or other custody in a secure facility but has contact with the community, such as through work release, a halfway house, or other supervised or unsupervised release into the community.
3 Involuntary Commitment of Sexually Violent Predators; Notice to County Attorney or Attorney General. Amend RSA 135-E:3, II-III to read as follows:
II. When a person who has committed a sexually violent offense is to be released from total confinement in New Hampshire, the agency with jurisdiction over the person shall give written notice to the county attorney of the county where that person was last convicted of a sexually violent offense, or attorney general if the case was prosecuted by the attorney general. If the person is in custody on an out-of-state or federal sexually violent offense the agency with jurisdiction shall give written notice to the county attorney of the county where the person plans to reside upon release or, if no residence in this state is planned, the county attorney in the county where the facility from which the person to be released is located or to the attorney general if the person has been convicted of murder. Except as provided in RSA 135-E:4, the written notice shall be given[:
(a)] at least 9 months prior to the anticipated release [from total confinement of a person serving a sentence in the custody of the department of corrections], except that in the case of persons who are totally confined for a period of less than 9 months, written notice shall be given as soon as practicable[; or
(b) At least 9 months prior to the anticipated hearing regarding possible release of a person committed to the custody of the department who has been found not guilty by reason of insanity for a sexually violent offense].
III. [Upon] Within 45 days of receipt of such notice, if there is an articulable basis to believe that the person is likely to engage in acts of sexual violence, either the county attorney, attorney general, or the agency with jurisdiction may request that the multidisciplinary team assess and evaluate the person to determine whether the person is a sexually violent predator.
4 Involuntary Commitment of Sexually Violent Predators; Notice to County Attorney or Attorney General. Amend RSA 135-E:3, V(c) to read as follows:
(c) Within [6] 4 months after receiving [notice of a person’s anticipated release from total confinement] the request for an assessment and evaluation, the department of health and human services shall provide to the county attorney or attorney general a written report of the multidisciplinary team’s findings as to whether the person meets the definition of a sexually violent predator.
5 Involuntary Commitment of Sexually Violent Predators; Release from Total Confinement. Amend RSA 135-E:4 to read as follows:
135-E:4 Release From Total Confinement; Transfers; Petition to Hold in Custody.
I. In the event that a person who has been convicted of a sexually violent offense is eligible for immediate release from total confinement upon completion of the maximum term of incarceration, the agency with jurisdiction shall provide immediate notice to the county attorney or attorney general of the person’s release. The county attorney or attorney general or the agency with jurisdiction may file a petition for an emergency hearing in the superior court requesting that the person subject to immediate release be evaluated by the multidisciplinary team to determine whether the person is a sexually violent predator. The hearing shall be held within 24 hours of the filing of the petition, excluding Saturdays, Sundays, and holidays. The person shall not be released from total confinement until after the hearing has been held. At the hearing, the court shall determine whether there is probable cause to believe that the person is a sexually violent predator. If the court finds probable cause, the person shall be held in an appropriate secure facility.
II. Within 72 hours after finding probable cause, excluding Saturdays, Sundays, and holidays, the multidisciplinary team shall assess whether the person meets the definition of a sexually violent predator. If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, the department of health and human services shall provide notice to the county attorney or attorney general and that person shall be immediately released. If the multidisciplinary team determines that the person meets the definition of a sexually violent predator, the team shall provide the county attorney or attorney general with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next [working] business day thereafter.
III. Within 48 hours after receipt of the written assessment and recommendation from the multidisciplinary team, excluding Saturdays, Sundays, and holidays, the county attorney or attorney general may file a petition with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If a petition is not filed within [48 hours after receipt of the written assessment and recommendation] the prescribed time period by the county attorney or attorney general, the person shall be immediately released. If a petition is filed pursuant to this section, the person shall be held in an appropriate secure facility for further proceedings in accordance with this chapter.
IV. A person shall be released if the multidisciplinary team or the county attorney or attorney general do not comply with the time limitations in this section. [The provisions of this section, however, are not jurisdictional, and] Failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the county attorney or attorney general from filing a petition against a person otherwise subject to the provisions of this chapter. However, the court shall not consider any petition filed more than 6 months after the person’s release from incarceration unless the timing of the petition is due to newly discovered material facts, which shall be alleged in the petition.
6 Involuntary Commitment of Sexually Violent Predators; Petition. Amend RSA 135-E:6 to read as follows:
135-E:6 Petition; Contents. If the multidisciplinary team finds the person meets the definition of a sexually violent predator, the county attorney or attorney general may file a petition within 14 days with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. At the time of the filing, and in lieu of the court issuing an order of notice, the county attorney or attorney general shall forward a copy of the petition to the person who is the subject of the petition, or to that person’s attorney if one was appointed to represent the person pursuant to RSA 135-E:23. If the county attorney or attorney general does not file a petition within 14 days, and the person is otherwise subject to release, the person shall be released.
7 Involuntary Commitment of Sexually Violent Predators; Determination of Probable Cause. Amend RSA 135-E:7 to read as follows:
135-E:7 Determination of Probable Cause.
I. When the county attorney or attorney general files a petition seeking to have a person declared a sexually violent predator, within 10 days of the filing of the petition, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines based on the content of the petition that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person remain in custody and be held in an appropriate secure facility for further proceedings in accordance with this chapter. The court shall schedule a preliminary pre-trial conference within 10 business days of its probable cause determination.
II. If the offender’s incarcerative sentence expires before a hearing on the merits of a petition for civil commitment pursuant to this chapter, the court shall conduct a probable cause hearing within 2 days of the expiration of the person’s incarcerative sentence. If the court concludes following the hearing that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person remain in custody and held in an appropriate secure facility for further proceedings in accordance with this chapter.
III. A probable cause hearing shall not be required under this section if the court has already made a probable cause determination pursuant to RSA 135-E:4, I.
8 Involuntary Commitment of Sexually Violent Predators; Release of Records. Amend RSA 135-E:15, I to read as follows:
I. In order to protect the public, relevant information and records that are otherwise confidential or privileged shall be released to the agency with jurisdiction, to a multidisciplinary team, or to the county attorney or attorney general for the purpose of meeting the notice requirements of this chapter and determining whether a person is or continues to be a sexually violent predator. Restrictions on confidential or privileged communications pursuant to RSA 329:26, RSA 330-A:32, or any other statute establishing similar restrictions on confidential or privileged communications shall not apply to releases made under this chapter. A person, agency, or entity receiving information under this section which is confidential shall maintain the confidentiality of that information. Such information does not lose its confidential status due to its release under this section.
9 New Section; Involuntary Commitment of Sexually Violent Predators; Time Limits. Amend RSA 135-E by inserting after section 23 the following new section:
135-E:24 Time Limits. The time limits set forth in this chapter are not intended to be jurisdictional and failure to comply with such time limits shall not constitute a basis for dismissal of a petition.
10 Effective Date. This act shall take effect 60 days after its passage.