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SPONSOR: |
Godbey |
DATE TYPED: |
|
HB |
5 |
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SHORT TITLE: |
20-Year Parole For Sex Offenders |
SB |
|
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ANALYST: |
Lockwood |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
|
Indeterminate (See Narrative) |
Recurring |
General
Fund |
(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to HB 2, 3, 4 and 6
REVENUE
|
Estimated Revenue |
Subsequent Years Impact |
Recurring or
Non-Rec |
Fund Affected |
|
|
FY03 |
FY04 |
|
|
|
|
|
|
Minimal |
Recurring |
OSF |
(Parenthesis ( ) Indicate Revenue Decreases)
LFC Files
Responses
Received From
Administrative
Office of the Courts (AOC)
Attorney
General’s Office (AGO)
Corrections
Department (CD)
Public
Defender Department (PD)
SUMMARY
Synopsis
of Bill
The
bill would amend existing law with regard to the maximum period of probation
and conditions of probation for sex offenders.
Under current law, the mandatory (maximum) period parole for these sex
offenders is two (2) years. This bill
would amend existing law to allow the period of probation for a sex offender to
extend up to twenty (20) years. The bill
defines "sex offender" to mean a person who is convicted of, pleads
guilty to or pleads no contest to any one of the following offenses:
(1) criminal sexual penetration in the first,
second or third degree, as provided in Section
(2) criminal sexual contact of a minor in
this second or third degree, as provided in Section
(3) sexual exploitation of children in the
second degree, as provided in Section 30-6A-3 NMSA 1978
Sex
offenders are now addressed under a new Section 31-21-10.1 and the bill
proposes to amend Section 31-21-10 to clarify that Subsection C does not apply
to sex offenders. The bill also changes several instances of “a corrections
facility” to the more general “an institution.”
The
new Section 31-21-10.1: Sex Offenders – Period of Parole – Terms and Conditions
of Parole applies to all sex offenders, except those eligible for the medical
and geriatric parole program as provided for in the Parole Board Act (See
NMSA 1978, § 31-21-25.1). Key provisions of the bill are as follows:
1.
The bill
provides that prior to placing a sex offender on parole, the Parole Board shall
conduct a hearing to determine the duration, terms and conditions of parole for
the sex offender. A sex offender's
initial period of parole shall be for a period of five years, but the Parole
Board may extend the period of parole in five-year increments for a total
period of up to twenty years. The Parole
Board may consider any relevant factors, including:
(a) the
nature and circumstances of the offense;
(b) the
nature and circumstances of a prior sex offense committed by the offender;
(c) rehabilitation efforts engaged in by the
sex offender, including participation in treatment programs while incarcerated
or elsewhere;
(d) the
danger to the community posed by the sex offender; and
(e) a risk and needs assessment regarding the
sex offender, prepared by the Sex Offender Management Board of the New Mexico
Sentencing Commission or other appropriate entity.
2.
The Parole
Board must review the terms and conditions of a sex offender's parole at 2 1/2
year intervals. During the review
hearing, the state shall bear the burden of proving to the Parole Board that a
sex offender should remain on parole.
The Parole Board may decide to continue a sex offender's parole but may
determine that certain terms and conditions of parole are no longer necessary.
The
Parole Board may order a sex offender placed on parole to abide by reasonable
terms and conditions of parole, including:
(a) being subject to the intensive
supervision by a parole officer of the Corrections Department;
(b) participating
in an outpatient or inpatient sex offender treatment program:
(c) a
parole agreement by the sex offender not to use alcohol or drugs;
(d) a parole agreement by the sex offender not
to have contact with certain persons or classes of persons; and
(e) being subject to alcohol testing, drug
testing or polygraph examinations used to determine if the sex offender is in
compliance with the terms and conditions of his probation.
3.
The Parole Board must notify the sex offender's counsel of record of the
upcoming parole hearing for a sex offender and the sex offender's counsel of
record shall represent the sex offender at parole hearing; unless the sex
offender's counsel of record provides the court with good cause that counsel of
record should not represent the sex offender.
If the sex offender is subsequently unable to obtain counsel, the Parole
Board shall notify the Chief Public Defender of the upcoming parole hearing and
the Chief Public Defender shall make representation available to the sex
offender at that hearing.
4.
If the Parole Board finds that a sex offender has violated the terms and
conditions of his parole, the Parole Board may revoke his parole or may order
additional terms and conditions of parole.
Significant
Issues
According
to the AOC, the proposed legislation could ensure that most sex offenders would
remain on parole for the majority of their natural life span. With this possibility, parolees may opt to go
to trial, rather than enter into plea bargains.
Such trials are complex in nature and require additional court hearings
and use of expert witnesses. If the
number of trials increases, there will be an additional need for funding of
court, prosecution, and defense agencies, as well as a likely need for a minor
increase for law enforcement agencies due to additional time spent as witnesses
in trial. Such trials would result in an
increased number of appeals and the need for increases in appellate resources. Any change in a criminal law will require
appellate court time in construing the new statute.
According to the Attorney General’s Office:
1. This proposal creates extended parole for sex
offenders. Fiscal implications should be
considered for both the Parole Board as well as administrative and legal
costs. A prospective effective date
should be included. Similar to the
extended probation proposal, the procedural aspects should be considered. Notification to victim(s) is important and
should be part of the proposed law.
2. The recommendations and adopting of standards
would be required to implement and enforce the extended parole for sex
offenders. Expert witnesses and advisers
would be required.
One requirement for extended parole should
include registration as a sex offender.
An effective date for the application of extended parole should be
included.
The intent of the extended parole period is
reflected in the language, at page 6, is “A sex offender’s initial period of
parole shall be for a period of five years, but the board may extend the period
of parole in five-year increments for a total period of up to twenty
years.” This language should be
compared to the language used in House Bill 2:
“A sex offender’s initial period of parole shall be for a period not to
exceed 20 years.”
3. House Bill 5 contemplates the existence and
recommendations for evaluation of a sex offender for parole made by the Sex
Offender Management Board (see HB 2 and 4).
4. The definition of a “sex offender” may be
expanded depending on the passage of those sex offenses against children
contained in House Bill 2. For example,
criminal sexual contact of a minor may be a second-degree felony as well as
kidnapping that involves a child and a sexual offense. If passed, both new offenses should be
included in the definition of sex offense.
According to the
Public Defender:
1. Sex offenders are
rarely convicted on only one count – at least two counts is a common occurrence
and often there are dozens of charges involved with sex offenses against
minors. The proposed legislation could ensure that sex offenders could remain
on parole for much of their entire natural lifespan.
2. There is a
possibility that the specter of such an extension of the restrictions on
convicts’ liberties might result in a decrease in the number of plea bargains
entered and a concomitant increase in the number of trials required. Sex
offense trials generally last at least several days and often as long as a
week. Such trials always involve complex legal issues that require additional
court hearings and the use of expert witnesses. If the number of trials
increases, there will be an additional need for funding of court, prosecution,
and defense agencies, as well as a likely need for a minor increase for law
enforcement agencies due to additional time spent as witnesses in trial. These
trials would result in an increased number of appeals, and increased appellate
resources both for the Attorney General and the Public Defender would be
needed.
3. While the Bill
contemplates the use of polygraph examinations to determine if offenders are in
compliance with parole conditions, the New Mexico Supreme Court is presently
considering whether to continue to allow such evidence at trials in the state.
This decision, however, is unlikely to affect admissibility of such evidence at
parole hearings.
4. The addition of
duties to the Chief Public Defender may require an amendment of the Public
Defender Act, NMSA 1978, Sections 31-15-1 to–12. Presently the Department of
the Public Defender appears to be authorized only to represent individuals
charged with crimes that carry a possible sentence of imprisonment and
individuals in post-conviction proceedings. (See Technical Issues below)
According to the
Corrections Department:
1. Studies and experience have demonstrated that
many sex offenders, unlike other violent offenses, continue to commit sex
offenses well into middle age and old age.
They often commit dozens of offenses each year and are rarely
apprehended because they target children; and even adult victims often do not report
the crime. Although there is no “cure”
for sex offenders, their behavior can be controlled through treatment and
intensive supervision. This is the reason
that longer periods of parole should be an available option.
2. A Sex Offender Management Board is necessary
to study all the various options, conduct risk assessments and make
recommendations tailored to individual cases so that resources are used most
efficiently.
FISCAL IMPLICATIONS
The
fiscal impact is indeterminate, but there will be recurring impact on the
General Fund. There will be a fiscal impact on the courts, possibly requiring
additional judges, staff and monetary resources. There will be an increase in attorney time
(e.g., more hearings or more complex preparation for existing hearings), and
there will be a corresponding increase in trial court time. The passage of this bill may require additional
expert witness funds and additional administrative and appellate resources.
(See Administrative Impact below).
According to the
Corrections Department, there
will be minimal to moderate cost increase to the Department in the short term
and substantial cost increases in the long term. This bill will increase
probation and parole caseloads and may increase the prison population due to
the longer periods of probation and parole, which will increase the chances of
probation and parole violations. However, these should be offset somewhat from
lower recidivism rates and a better quality of life for New Mexicans due to
fewer people being the victim of sexual crimes.
Governor
ADMINISTRATIVE
IMPLICATIONS
There
may be administrative impacts on the courts as the result of an increase in
caseload and/or in the amount of time necessary to dispose of cases.
The enactment of this bill is likely to have a
slight to moderate impact on the performance of the Department of the Public
Defender. The mandate that the PD engage in the totally new role of
representing sex offenders at parole hearings will require the diversion of
attorney, staff and monetary resources. Due to the complexity of the issues
involved, these hearings could not be properly staffed by beginning attorneys,
and would have to be covered by attorneys having attained operational or advanced
roles. However, since this new parole-representation role will only begin when
sex offenders convicted under the new law complete their underlying sentences
and reach parole, the impact will be delayed by some years. An impact
assessment prepared by the New Mexico Sentencing Commission estimates that the
impact will begin to be felt in approximately FY2012, and will grow thereafter,
beginning to shrink somewhat in approximately FY2025. Based on projected
numbers, the increased caseload should be moderate, and may require additions
to funding levels of attorney, staff and monetary resources.
The extension of parole time is likely to have
an immediate moderate Department-wide resource impact due to the likelihood
that somewhat fewer cases will plea. Accordingly, there will be a concomitant increase
in the number of trials. Sex offense trials generally last at least several days
and often as long as a week. Such trials always involve complex legal issues
that require additional court hearings and the use of expert witnesses.
RELATIONSHIP
House Bill 5 relates
to House Bills 2, 3, 4 and 6 that also address sex offender legislation.
TECHNICAL ISSUES
Enactment of this bill
may require an amendment of the Public Defender Act, NMSA 1978,
Sections 31-15-1
to–12. Presently the Department of the Public Defender appears to be authorized
only to represent individuals charged with crimes that carry a possible
sentence of imprisonment and individuals in post-conviction proceedings.
AL/lg:dm