BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair A
1995-96 Regular Session B
8
8
AB 888 (Rogan) 8
As amended May 31, 1995 ?
Hearing date: July 11, 1995
Welfare & Institutions Code
LK:ll
CIVIL COMMITMENT: SEXUAL OFFENDERS
HISTORY
Source: Governor
Prior Legislation: SB 41X (1994) -- Failed, Assembly
Public Safety
Support: Attorney General; California State Sheriffso
Association; San Bernardino County Sheriff; Women
Prosecutors of California; California Correctional
Peace Officers Association; Committee on Moral
concerns; Doris Tate Crime Victims Bureau; Justice for
Murder Victims; Memory of Victims Everywhere
Opposition: American Civil Liberties Union; California
Attorneys for Criminal Justice; Protection &
Advocacy
Assembly Floor Vote: Ayes 67 - Noes 10
(THIS ANALYSIS REFLECTS AUTHORoS AMENDMENTS TO BE OFFERED IN
COMMITTEE. SEE COMMENT #14.)
KEY ISSUE
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SHOULD SPECIFIED SEXUAL OFFENDERS WHO HAVE COMPLETED THEIR
DETERMINATE SENTENCES BE SUBJECT TO CIVIL COMMITMENTS?
PURPOSE
Existing law provides for continued treatment of mentally
disordered prisoners when they are released to parole.
This bill would provide a civil commitment process for
sexually violent predators, as defined. It would provide
that at least 6 months prior to an inmateos scheduled release
date, the person may be referred for evaluation by the
Director of Corrections, and the Department of Mental Health
may request a petition for civil commitment for a two-year
period, which may be renewed indefinitely.
Initial review would be by a court or jury to determine
whether the person is a sexually violent predator. Upon such
a finding, the person would be held for two years or until
the Director of Mental Health finds that the personos mental
abnormality is so changed that he or she is not likely to
commit an act of sexual violence. The committed person would
have the right to a review after one year.
The purpose of this bill is to provide for continued
incarceration of some sex offenders after completion of their
determinate prison sentences.
COMMENTS
1. Expressed purpose of the bill.
According to the author:
As a result of determinate sentencing, sex offenders
are now automatically released from prison at the
end of their terms. According to the California
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Department of Corrections, there are approximately
11,000 sex offenders currently in state prison. The
law compels the release of about 250 of these
inmates a month, or 3,000 a year. Predatory child
molesters, forcible rapists, and repeat violent sex
offenders are among them.
Under current law, there is no legal authority to
detain and treat sexually violent offenders who,
because of a mental abnormality or personality
disorder, are likely to re-offend once released from
prison. Likewise, there is no current way to
prevent their release into society.
California needs a civil commitment procedure to
allow the state a means to place and treat sexually
violent predators in a secure mental facility
following their release from prison.
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2. Statement of legislative intent.
The bill provides the following statement of need:
The Legislature finds and declares that a small but
extremely dangerous group of sexually violent
predators that generally have personality disorders
can be identified while they are incarcerated.
These persons are not safe to be at large and if
released represent a danger to the health and safety
of others in that they are likely to engage in acts
of sexual violence. The Legislature further finds
and declares that it is in the interest of society
to identify these individuals prior to the
expiration of their terms of imprisonment. It is
the intent of the Legislature that once identified,
these individuals, if found to be likely to commit
acts of sexually violent criminal behavior beyond a
reasonable doubt, be confined and treated until such
time that it can be determined that they no longer
present a threat to society.
The Legislature further finds and declares that the
treatment needs of this population are very long
term and the treatment modalities that are
appropriate for this population are substantially
different from those persons currently receiving
mental health treatment under the
Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and
Institutions Code) and, accordingly, a new civil
commitment needs to be established to address the
treatment needs of this population.
3. History: Mentally Disordered Sex Offenders.
The Mentally Disordered Sex Offender Act (MDSO), Welfare &
Institutions Code Section 6300 et seq., was enacted in 1967
and repealed in 1981. That Act provided that upon
conviction, the court could order an examination of the
person by two to three psychologists. Upon a showing beyond
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a reasonable doubt that there was a danger and that he or she
could benefit by treatment, the person would be moved to a
treatment facility. If the person was found not to be
amenable to treatment, he or she would be returned to the
regular sentencing process. The maximum term to be served in
the MDSO program would be the maximum term the person could
have served in prison.
A determination by the court that the person be sent to the
MDSO program was appealable to a jury, who would answer the
question: oAre you convinced to a moral certainty and beyond
a reasonable doubt that the defendant is a mentally
disordered sex offender?o
If the Director of Mental Health determined that the person
continued to present a substantial danger of bodily harm to
others, a trial would be set for no less than 30 days from
the release date and the person would be provided with full
criminal proceeding protections. The additional commitment
would be for up to two years.
An MDSO case could be held indefinitely but was entitled to a
hearing upon request every six months.
4. Existing law: Mentally Disordered Offenders.
Existing law provides for the disposition of mentally
disordered offenders (MDO) upon discharge. (Penal Code
Section 2960 et seq.) In the MDO program, the Department of
Corrections is to begin treatment of disordered prisoners
during their first year of incarceration. As a condition of
parole, a person with a severe mental disorder that is not in
remission and cannot be kept in remission without treatment
may be placed in treatment. Those with personality or
adjustment disorders (the subjects of this bill) are
specifically excluded from the program.
Prerequisite findings by the Board of Prison Terms for
placement in the program include that the disorder was
related to the crime, that the prisoner has been in
treatment, that the person used force or violence or caused
serious bodily injury in committing the crime, that he or she
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represents a substantial danger of physical harm to others,
and that the disorder cannot be kept in remission without
treatment.
The MDO patient may be treated either as an inpatient or
outpatient. The finding by the Board of Prison Terms is
appealable to the court, with the right to an attorney, proof
beyond a reasonable doubt, and a unanimous jury verdict.
A district attorney may petition the court for an extension
of one year.
A person who is gravely disabled within the meaning of the
Lanterman-Petris-Short Act may be committed civilly upon
release from custody of the Department of Corrections.
5. Definitions.
This bill is loosely patterned after Washington and Minnesota
statutes.
This bill would define osexually violent predatoro as oa
person who has been convicted of a sexually violent offense
against two or more victims for which he or she received a
determinate sentence and who has a mental abnormality or
personality disorder that makes the person a danger to the
health and safety of others in that it is likely that he or
she will engage in sexually violent criminal behavior.o
The provisions of this bill would be limited to individuals
who are in custody under the jurisdiction of the Department
of Corrections, which would include individuals who are
serving their court-imposed sentence and those who have been
released and whose parole has been revoked.
The bill would specify that odanger to the health and safety
of otherso does not require proof of a recent overt act while
the offender is in custody.
A similar statute in Washington State was held to be
constitutional by the Washington Supreme Court. A petition
is currently pending in federal court.
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The Washington Supreme Court held that, at least for persons
on parole, a recent overt act is required to show
dangerousness.
AS TO PERSONS WHO HAVE BEEN RELEASED ON PAROLE AND HAVE BEEN
RETURNED TO CUSTODY, SHOULD A RECENT OVERT ACT BE REQUIRED TO
SHOW THAT THE PERSON IS A DANGER TO THE HEALTH AND SAFETY OF
OTHERS?
This bill would define osexually violent offenseo to include
a forcible felony violation of rape, spousal rape, sex crime
in concert, sodomy or oral copulation or foreign object
penetration offenses as listed below, lewd act on a child
under 14, continuous sexual abuse, or anal penetration by
undetermined means.
The bill would define omental abnormalityo as oa congenital
or acquired condition affecting the emotional or volitional
capacity that predisposes the person to the commission of
criminal sexual acts in a degree constituting the person a
menace to the health and safety of others.o
The bill would define opredatoryo to mean an act which ois
directed toward a stranger or individual with whom a
relationship has been established or promoted for the primary
purpose of victimization.o
The bill would define orecent overt acto to mean oany
criminal act that manifests a likelihood that the actor may
engage in sexually violent predatory criminal behavior.o
6. Procedure.
This bill would provide that a person in custody under the
jurisdiction of the Department of Corrections, who may be a
sexually violent predator, be referred for evaluation at
least six months prior to the individualos scheduled release
date from prison.
The provisions of this bill are retroactive to include all
persons under the jurisdiction of the Department of
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Corrections who are either in custody or are returned to
custody after parole.
SHOULD A PERSON WHO MAY COME UNDER THE PROVISIONS OF THIS
BILL BE PLACED ON NOTICE AT TIME OF THE CONVICTION?
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IF THE PURPOSE OF THIS BILL IS FOR TREATMENT, SHOULD NOT
THOSE ELIGIBLE PRISONERS BE IDENTIFIED BY THE COURT, AT THE
TIME OF SENTENCING, AS UNDER THE MDSO STATUTE, AND TREATED
FROM THE BEGINNING OF INCARCERATION?
SHOULD THIS BILL BE APPLIED RETROACTIVELY?
Once identified, the person would be screened by the
Department of Corrections and Board of Prison Terms to
determine that the person is likely to be a sexually violent
predator. The person would then be evaluated by two
psychiatrists or psychologists, who may not be governmental
employees, designated by the Director of Mental Health. If
both concur that the person has a mental abnormality or
personality disorder such that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health would forward a
request for a petition for commitment to the county where the
person was committed. If the evaluators do not agree, the
Director of Mental Health would arrange for a new
examination. The person would be told that the purpose of
the examination is not treatment but to determine if the
person meets the criteria to be involuntarily committed. It
would not be required that the person appreciate or
understand that information.
A superior court judge would review the petition and would
determine whether there is probable cause to believe that the
person is likely to engage in sexually violent criminal
behavior upon his or her release. If the judge determines
that there is probable cause, the judge would order that a
trial be conducted to determine whether the person is, by
reason of mental abnormality or personality disorder, a
danger to the health and safety of others in that the person
is likely to engage in acts of sexual violence upon his or
her release.
Upon a finding of probable cause, a commitment hearing would
be scheduled. A person subject to this procedure would be
entitled to a trial by jury, the assistance of counsel, the
right to retain experts or professional persons to perform an
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examination on his or her behalf, and have access to relevant
medical and psychological records and reports. In the case
of a person who is indigent, the court would appoint counsel
and, upon the personos request, assist the person in
obtaining an expert or professional person to perform an
examination or participate in the trial on the personos
behalf.
A similar law in Minnesota also requires that the person have
an utter lack of power to control his or her impulses.
SHOULD A FINDING THAT THE PERSON HAVE AN UTTER LACK OF POWER
TO CONTROL HIS OR HER IMPULSES BE REQUIRED?
Upon a finding that beyond a reasonable doubt the person is a
sexually violent predator, he or she would be committed to
the custody of the State Department of Mental Health for
appropriate treatment and confinement in a prison until one
of the three following conditions are met:
a. A person found to be a sexually violent predator and
committed to prison under the custody of the State
Department of Mental Health would have a current
examination of his or her mental condition made at least
once every year. The person could retain or have
appointed an expert or professional person to examine
him or her, and the expert would have access to all
records. Unless the person declined, a court review
would determine whether there is probable cause to
believe that the personos mental abnormality or
personality disorder has so changed that he or she is
not a danger to the health and safety of others and is
not likely to engage in sexually violent criminal
behavior if discharged. If probable cause is found, a
full hearing would be scheduled, identical to the
initial commitment hearing. The person would be
unconditionally discharged if the state were unable to
show by proof beyond reasonable doubt that the personos
mental abnormality or personality disorder remains such
that he or she is a danger to the health and safety of
others and is likely to engage in sexually violent
criminal behavior if discharged. If that finding is
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made, the person would be committed for another two
years.
b. After at least one year, if the Director of Mental
Health determines that the personos mental abnormality
or personality disorder is so changed that he or she is
not likely to commit acts of predatory sexual violence
while under supervision and treatment in the community,
the court would be petitioned for a conditional release.
The committed person could also petition the court
directly for a conditional release. If the court finds
that the person would not be a danger to others due to
his or her mental abnormality or personality disorder
while under supervision and treatment in the community,
the person would be conditionally released to an
appropriate program operated by the state for one year.
Any time spent in a conditional release program would
not count against the two year commitment unless the
placement was to a locked facility.
After one year, the court would re-hear the case to
determine if the person should be unconditionally
released on the basis that he or she is not likely to
engage in sexually violent criminal behavior. If that
finding is not made, the person may be continued in
outpatient status or may be returned to prison.
c. The person must be released after two years of
custody, unless a new petition is filed with the court
and a new commitment is obtained.
7. Treatment.
A person committed under this bill would be provided with
programming by the State Department of Mental Health, which
shall afford the person with treatment for the underlying
causes of his or her mental abnormality or personality
disorder. However, amenability to treatment is not required
for a finding that any person is a sexually violent predator,
nor is it required for treatment of that person. Treatment
does not mean that the treatment be successful or potentially
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successful, nor does it mean that the person must recognize
his or her problem and willingly participate in the treatment
program.
SHOULD TREATMENT BE REQUIRED TO BE A PART OF THE PERSONoS
PROGRAM?
SHOULD PERSONS NOT AMENABLE TO TREATMENT BE SUBJECT TO THIS
PROCEDURE?
The person would be returned to prison for the remainder of
his or her confinement.
SHOULD PLACEMENT IN A MENTAL HEALTH FACILITY BE MANDATED?
The expressed purpose of this bill is to confine and treat
prisoners until such time that they no longer present a
danger to society. Yet, treatment in correctional facilities
is difficult to obtain. On June 7, 1994, U.S. Magistrate
John Moulds found that the lack of adequate care for mentally
ill prisoners by the Department of Corrections constitutes
cruel and unusual punishment because of deliberate
indifference on the part of the Department of Corrections.
The ruling affects about 28,000 mentally ill prisoners of the
systemos 123,000 inmates. The Magistrate ruled that the
plaintiffs had oclearly shown, and defendants have
effectively acknowledged, that the delivery of mental health
care within the California Department of Corrections is, and
for many years, has been, grossly inadequate.o The ruling
stated that for years the department had oignored the
considered advice of their own experts about the woeful
deficiencies in their system....[M]entally ill inmates who do
receive some forms of treatment suffer needless, extended
delays in access to necessary psychiatric care.o
Recommendations include developing adequate staffing ratios
between employees and mentally ill inmates; filling all
mental health staff positions now authorized in the budget;
recruiting mental health professionals to work in prisons;
training prison staff to recognize signs of mental illness;
developing a policy governing the lockup of mentally ill
prisoners in solitary confinement; and developing a plan to
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guarantee prompt access to psychiatric hospitalizations.
That case was scheduled to be reviewed before U.S. District
Judge Lawrence Karlton for consideration.
SHOULD PRISONERS CURRENTLY IN THE CORRECTIONAL SYSTEM BE
AFFORDED ADEQUATE MENTAL HEALTH TREATMENT BEFORE POLICIES
THAT WOULD EXPAND TREATMENT NEEDS ARE EFFECTED?
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8. Retroactive application.
This bill defines a osexually violent offenseo as specified
acts committed on, before or after the effective date of this
bill (See Section 6600(b).) This bill has elements which
make it appear to be punitive in nature, such as provisions
which authorize treatment of persons who are not amenable to
treatment, and placement in a prison facility. That possible
punitive nature of the procedure is currently being litigated
in similar legislation in Washington. If the proposed
statute attaches additional jeopardy to a person, ex post
facto application would be prohibited under the United States
and California constitutions. If this bill is civil rather
than criminal in nature, it survives this challenge, as did
the Washington statute when before the Washington Supreme
Court, In re Young, 857 P.2d 989 (1993). The major issue is
whether the personos prior illegal act is being used to
increase his or her punishment.
ARE THE PROVISIONS OF THIS BILL ESSENTIALLY PENAL IN NATURE?
SHOULD THIS BILL BE LIMITED TO PROSPECTIVE APPLICATION ONLY?
SHOULD A PERSON WHO MAY COME UNDER THE PROVISIONS OF THIS
BILL BE PLACED ON NOTICE AT THE TIME OF SENTENCING?
9. Opposition.
This bill is opposed by the American Civil Liberties Union on
both policy and constitutional grounds:
This wide sweeping legislation permits the state to
indefinitely confine in mental facilities
individuals who have committed sexually motivated
crimes based on perceived fears that these persons
will commit future crimes. AB 888 is essentially a
preventive detention scheme based on allegations of
future dangerousness, and as such violates
substantive due process of law.
Pursuant to the U.S. Supreme Courtos recent decision
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in Foucha v. Louisiana [118 L.Ed.2d 437, 466
(1992)], the state must prove an individual is both
mentally ill and dangerous before the person can be
involuntarily committed. AB 888 fails to meet this
minimal requirement in that a osexually violent
predatoro as defined in the statute does not apply
to a group of persons who are mentally ill. As the
Supreme Court noted in Foucha:
The State asserts that because Foucha once
committed a criminal act and now has an
antisocial personality that sometimes leads to
aggressive conduct, a disorder for which there
is no effective treatment, he may be held
indefinitely. This rationale would permit the
State to hold indefinitely any other insanity
acquittee not mentally ill who could be shown
to have a personality disorder that may lead to
criminal conduct. The same would be true of
any convicted criminal, even though he has
completed his prison term.o
Moreover, the bill also does not require a recent
overt act to hold someone indefinitely.
Foucha recognizes only three situations in which the
state has such a compelling interest in public safety
that a complete depravation of an individualos liberty is
justified:
a. A convicted criminal;
b. A mentally ill person if the state shows by
clear and convincing evidence that the individual is
both mentally ill and dangerous (personality
disorder is not a diagnosable mental illness);
c. In limited cases, persons who pose a danger to
others or to the community may be subject to limited
confinement.
WOULD THIS BILL SURVIVE THE TEST IDENTIFIED IN FOUCHA?
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The Washington Supreme Court found the Washington civil
commitment statute to withstand constitutional scrutiny,
In re Young 857 P.2d 989 (Wash. 1993). A petition is
pending in federal court.
In opposing SB 41X last year, the California Psychiatric
Association stated:
This bill suggests that osexually violent predatorso
can be accurately identified, that treatments exist
to ocureo such individuals, and the bill mandates
that they be remanded until cured. CPA has grave
concerns with the premise of SB 41X. Since there
are no guaranteed cures for such individuals which
would reasonably ensure that they could safely
return to society, it appears that this bill is
simply a means to create a legal process for keeping
convicted individuals incarcerated.
CPA also has concerns with the SB 41X definition of
a osexually violent predator.o The definition
implies that a person with a mental disorder has
some type of congenital or acquired condition that
would predispose such individuals to commit criminal
sexual acts. This is inaccurate, inappropriate, and
may stigmatize persons with a diagnosis of a
personality disorder.
Under SB 41X, individuals so labeled would be
referred to the Department of Mental Healthos penal
system for otreatmento which would require limited
staff resources be used in an attempt to ocureo such
persons. The intent of SB 41X appears to be simply
to keep such individuals incarcerated. To confuse
the issue with the idea that such individuals can be
guaranteed a cure, and only then returned to
society, is nonproductive and inappropriately
engages clinical staff in endless paperwork without
any assurance of a positive outcome.
This year, the California Psychiatric Association notes a
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number of concerns with AB 888. Most importantly:
All persons committed under the provisions of AB 888
should have a diagnosed mental disorder. The bill
interchangeably identifies omental abnormalitieso
and opersonality disorders.o Neither necessarily
indicates a diagnosable major mental disorder.
The bill needs to make clear that treatment must be
available which could lead to a reduction of the
personos dangerousness when the person is committed
under the provisions of the bill. As you know, the
treatability of persons with personality disorders
(as opposed to those with serious forms of mental
illness) with those very dangerous behaviors is
problematic at best. The younger the person, the
less ingrained the behavior -- the greater the
chance for treatment success, as an example. In
addition, psychiatry must always guard against
psychiatric commitment being used as a method of
social control devoid of treatment. Unfortunately,
we have no known effective treatments for a number
of these sexual predators. As much as we agree that
such behavior requires strong social control, mental
health treatment facilities cannot be used as a
ogulag.o We do not believe this is your intent --
it is worthy of cautious review, however.
10. Recent legislation.
a. Personality disorders
SB 40X (Bergeson, Chapter 10, Statutes of 1994),
sponsored by the Department of Mental Health, bars
the defense of onot guilty by reason of insanityo
when based on a personality or adjustment disorder,
a seizure disorder, or an addiction to or abuse of
intoxicating substances.
According to the Department of Mental Health, that
bill is needed because persons with personality
disorders are not out of touch with reality. They
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have difficulty adjusting to societal constructs and
are persons who are easily angered and have
irresponsible behavior patterns. They are not
generally amenable to therapeutic support.
SB 40X appears to be in policy conflict with this
bill, in that this bill attempts to treat the group
that SB 40X has removed from the mental health
process.
IS THIS BILL NOT IN CONFLICT WITH SB 40X?
SHOULD THIS BILL BE LIMITED TO TREATMENT OF PERSONS WITH
MENTAL DISORDERS?
b. Sexual offenders
This bill is structured after SB 41X (Presley,
1994). However, since that bill was introduced, a
number of other statutes directed at sexual
offenders were enacted last year which would have an
impact on the policy envisioned by this bill:
1. SB 26X (Bergeson, Chapter 14X), the oOne
Strikeo bill, among other provisions, provides
an additional consecutive term of 25 years to
life for commission of a sex crime when the
defendant kidnapped the victim, inflicted great
bodily injury, committed the offense during the
commission of a burglary, used a deadly or
dangerous weapon or firearm, committed the
offense against more than one victim, or had a
prior conviction for a sex offense.
2. AB 2261 (Peace, Chapter 446), among other
provisions, includes kidnapping with intent to
commit a sex crime within the definition of
ohabitual sexual offendero and requires a
minimum of 25 calendar years in custody before
parole may be considered for any habitual
sexual offender.
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3. AB 1029 (Epple, Chapter 447), among other
provisions, provides a life sentence for using
a firearm or deadly weapon or committing great
bodily injury during the commission of a sex
offense which involved either a kidnap or
burglary.
4. AB 3707 (Boland, Chapter 878), provides a
life sentence for committing a forcible sex
offense on a minor under 14 when the defendant
is at least 10 years older than the minor.
Additionally, the maximum amount of time credit available to
violent felons was reduced last year from 50% to 15% under AB
2716 (Katz, Chapter 713).
Finally, AB 971 (Jones/Costa, Chapter 12) and Proposition
184, the oThree Strikes Youore Outo law require a life
sentence for any person convicted of any felony offense with
two violent or serious felony priors and requires double the
sentence for any person with one violent or serious prior.
Therefore, the problem of lack of control over sexual
offenders may have been lessened by enactment of these six
measures, which will result in life sentences or
significantly increased terms for sexual predators.
This bill would only apply to inmates who are currently in
custody, those who are currently on parole and whose parole
is revoked, and those who in the future come within the terms
of the above-noted bills but who do not receive a life
sentence. The Department of Corrections estimates that there
are currently 1026 such inmates in custody, many of whom
would not be recommended for this program, and that there
would be a few determinatively sentenced inmates in the
future under the oOne-Strikeo bills.
WITH THE ENACTMENT OF RECENT LEGISLATION, IS THERE STILL AN
IMMEDIATE NEED FOR THIS BILL?
11. Related legislation.
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SB 1143 (Mountjoy) is also patterned after SB 41X of last
year. That bill was heard by this committee April 25, 1995.
That bill was amended in committee to (1) require
identification and treatment upon commitment to the
Department of Corrections, instead of six months before
release; (2) require notification by the court at time of
sentencing that the person may be found to be a sexually
violent predator; (3) provide for jury trials (which this
bill already does); (4) apply prospectively to new offenses,
and (5) not require any predicate offense as to non-inmates.
12. Proposed authoros amendments.
The sponsor has indicated an intent to make the following
changes in the bill, which are reflected in this analysis:
a. On page 5, lines 6 through 16, move the oforce and
violenceo phrase to the beginning of the sentence to
clarify that osexually violent offenseso only include
violent offenses.
b. On page 5, lines 32 through 39, limit the subject
population to those in custody pursuant to the original
court sentence and those for whom parole has been
revoked.
c. On page 8, delete the sentence on lines 36 through
40. (Clean-up).
d. On page 10, line 18, change osexualo to osexuallyo.
(Technical).
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e. On page 11, line 17 clarify the right to trial by
jury.
f. On page 11, line 25, clarify the right to
unconditional release if the burden of proof is not met
by the people.
g. Add co-authors.
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