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Senate File 2286

Partial Bill History

Bill Text

PAG LIN
  1  1                                            SENATE FILE 2286
  1  2 
  1  3                             AN ACT
  1  4 RELATING TO THE CIVIL COMMITMENT OF SEXUALLY VIOLENT 
  1  5    PREDATORS, AND PROVIDING AN EFFECTIVE DATE.  
  1  6 
  1  7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  1  8 
  1  9    Section 1.  Section 229A.1, unnumbered paragraph 2, Code
  1 10 2001, is amended to read as follows:
  1 11    The general assembly further finds that the prognosis for
  1 12 rehabilitating sexually violent predators in a prison setting
  1 13 is poor, because the treatment needs of this population are
  1 14 very long-term, and the treatment modalities for this
  1 15 population are very different from the traditional treatment
  1 16 modalities available in a prison setting or for persons
  1 17 appropriate for commitment under chapter 229.  Therefore, the
  1 18 general assembly finds that a civil commitment procedure for
  1 19 the long-term care and treatment of the sexually violent
  1 20 predator is necessary.  The procedures regarding sexually
  1 21 violent predators should reflect legitimate public safety
  1 22 concerns, while providing treatment services designed to
  1 23 benefit sexually violent predators who are civilly committed.
  1 24 The procedures should also reflect the need to protect the
  1 25 public, to respect the needs of the victims of sexually
  1 26 violent offenses, and to encourage full meaningful
  1 27 participation of sexually violent predators in treatment
  1 28 programs.
  1 29    Sec. 2.  Section 229A.2, Code 2001, is amended by adding
  1 30 the following new subsections:
  1 31    NEW SUBSECTION.  2A.  "Discharge" means an unconditional
  1 32 discharge from the sexually violent predator program.  A
  1 33 person released from a secure facility into a transitional
  1 34 release program or released with or without supervision is not
  1 35 considered to be discharged.
  2  1    NEW SUBSECTION.  6A.  "Safekeeper" means a person who is
  2  2 confined in an appropriate secure facility pursuant to this
  2  3 chapter but who is not subject to an order of commitment
  2  4 pursuant to this chapter.
  2  5    NEW SUBSECTION.  10.  "Transitional release" means a
  2  6 conditional release from a secure facility operated by the
  2  7 department of human services with the conditions of such
  2  8 release set by the court or the department of human services.
  2  9    Sec. 3.  Section 229A.5, subsection 3, Code 2001, is
  2 10 amended to read as follows:
  2 11    3.  At the hearing, the rules of evidence do not apply, and
  2 12 the state may rely solely upon the petition filed under
  2 13 subsection 1, but the state may also supplement the petition
  2 14 with additional documentary evidence or live testimony.
  2 15    Sec. 4.  Section 229A.5B, Code Supplement 2001, is amended
  2 16 to read as follows:
  2 17    229A.5B  ESCAPE FROM CUSTODY.
  2 18    1.  A respondent person who is in custody detained pursuant
  2 19 to section 229A.5 or is subject to an order of civil
  2 20 commitment under this chapter shall remain in custody unless
  2 21 released by court order or discharged under section 229A.8 or
  2 22 229A.10.  A person who has been placed in a transitional
  2 23 release program or who is under release with or without
  2 24 supervision is considered to be in custody.  A respondent
  2 25 person in custody under this chapter shall not do any of the
  2 26 following:
  2 27    a.  Leave or attempt to leave a facility without the
  2 28 accompaniment of authorized personnel or leave or attempt to
  2 29 leave a facility without authorization.
  2 30    b.  Knowingly and voluntarily be absent from a place where
  2 31 the respondent person is required to be present.
  2 32    c.  Leave or attempt to leave the custody of personnel
  2 33 transporting or guarding the respondent person while the
  2 34 respondent person is away from a facility.
  2 35    2.  A respondent person who violates subsection 1 commits a
  3  1 simple misdemeanor or may be subject to punishment for
  3  2 contempt.  If the respondent pleads guilty to, or is convicted
  3  3 of, an offense under this section, or is found in contempt, or
  3  4 both, and is sentenced to a term of confinement, the civil
  3  5 commitment proceedings or treatment process may be stayed by
  3  6 court order until the term of confinement is served by the
  3  7 respondent.
  3  8    3.  If a respondent person commits a violation of
  3  9 subsection 1 and remains unconfined, the attorney general or
  3 10 the chief law enforcement officer of the political subdivision
  3 11 where the violation occurs may make a public announcement that
  3 12 the respondent person is unconfined and may provide relevant
  3 13 information about the respondent person to the community.  The
  3 14 attorney general may also notify a victim or the family of a
  3 15 victim of the respondent person that the respondent person is
  3 16 unconfined.
  3 17    4.  This section shall not be construed to prohibit the use
  3 18 of the interstate compact on mental health as provided in
  3 19 chapter 221 other lawful means for the return of the person.
  3 20    Sec. 5.  NEW SECTION.  229A.5C  CRIMINAL OFFENSES COMMITTED
  3 21 WHILE DETAINED OR SUBJECT TO AN ORDER OF COMMITMENT.
  3 22    1.  If a person who is detained pursuant to section 229A.5
  3 23 or who is subject to an order of civil commitment under this
  3 24 chapter commits a public offense, the civil commitment
  3 25 proceedings or treatment process shall be suspended until the
  3 26 criminal proceedings, including any term of confinement, are
  3 27 completed.  The person shall also not be eligible for bail
  3 28 pursuant to section 811.1.
  3 29    2.  Upon the filing of a complaint, indictment, or
  3 30 information, the person shall be transferred to the county
  3 31 jail in the county where the public offense occurred until the
  3 32 criminal proceedings have been completed.  If the person is
  3 33 sentenced to a term of confinement in a county jail, the
  3 34 person shall serve the sentence at the county jail.  If the
  3 35 person is sentenced to the custody of the director of the
  4  1 department of corrections, the person shall serve the sentence
  4  2 at a correctional institution.
  4  3    3.  A person who is subject to an order of civil commitment
  4  4 under this chapter shall not be released from jail or paroled
  4  5 or released to a facility or program located outside the
  4  6 county jail or correctional institution other than to a secure
  4  7 facility operated by the department of human services.
  4  8    4.  A person who committed a public offense while in a
  4  9 transitional release program or on release with or without
  4 10 supervision may be returned to a secure facility operated by
  4 11 the department of human services upon completion of any term
  4 12 of confinement that resulted from the commission of the public
  4 13 offense.
  4 14    5.  If the civil commitment proceedings for a person are
  4 15 suspended due to the commission of a public offense by the
  4 16 person, the ninety-day trial demand lapses.  Upon completion
  4 17 of any term of confinement that resulted from the commission
  4 18 of the public offense, a new ninety-day trial demand
  4 19 automatically begins.
  4 20    Sec. 6.  NEW SECTION.  229A.5D  MEDICAL TREATMENT.
  4 21    A safekeeper is entitled to necessary medical treatment.
  4 22    Sec. 7.  NEW SECTION.  229A.6A  TRANSPORT ORDERS.
  4 23    1.  A person who has been detained prior to trial pursuant
  4 24 to section 229A.5 or who has been civilly committed may be
  4 25 transported for the following purposes:
  4 26    a.  To trial and any other court proceedings if the court
  4 27 has authorized a transport order.  A transport order may only
  4 28 be requested by the court, the person's attorney, or the
  4 29 attorney general.  Transportation shall be provided by the
  4 30 sheriff of the county in which the action has been brought,
  4 31 unless the court specifies otherwise or the parties agree to a
  4 32 different transportation arrangement.  If a transport order is
  4 33 not authorized, the person may appear at any court proceedings
  4 34 other than trial by telephone or electronic means.
  4 35    b.  To a medical facility for medical treatment, if
  5  1 necessary medical treatment is not available at the facility
  5  2 where the person is confined.  A transport order is not
  5  3 required to transport the person for medical treatment.
  5  4 However, the person is not entitled to choose the medical
  5  5 facility where treatment is to be obtained or the medical
  5  6 personnel to provide the treatment.  Transportation of a
  5  7 committed person shall be provided by the sheriff of the
  5  8 county in which the person is confined if requested by the
  5  9 department of human services.
  5 10    c.  To a medical, psychological, or psychiatric evaluation.
  5 11 A person shall not be transported to another facility for
  5 12 evaluation without a court order.  When a transportation order
  5 13 is requested under this paragraph, notice must be provided to
  5 14 the opposing party, and the opposing party must be given a
  5 15 reasonable amount of time to object to the issuance of such an
  5 16 order.  The cost of the transportation shall be paid by the
  5 17 party who requests the order.
  5 18    d.  To a facility for placement or treatment in a
  5 19 transitional release program or for release with or without
  5 20 supervision.  A transport order is not required under this
  5 21 paragraph.
  5 22    2.  This section shall not be construed to grant a person
  5 23 the right to personally appear at all court proceedings under
  5 24 this chapter.
  5 25    Sec. 8.  Section 229A.7, subsection 2, Code 2001, is
  5 26 amended to read as follows:
  5 27    2.  Within ninety days after either the entry of the order
  5 28 waiving the probable cause hearing or completion of the
  5 29 probable cause hearing held under section 229A.5, the court
  5 30 shall conduct a trial to determine whether the respondent is a
  5 31 sexually violent predator.  The respondent or the attorney for
  5 32 the respondent may waive the ninety-day trial requirement as
  5 33 provided in this section; however, the respondent or the
  5 34 attorney for the respondent may reassert a demand and the
  5 35 trial shall be held within ninety days from the date of filing
  6  1 the demand with the clerk of court.  The trial may be
  6  2 continued upon the request of either party and a showing of
  6  3 good cause, or by the court on its own motion in the due
  6  4 administration of justice, and when the respondent will not be
  6  5 substantially prejudiced.  In determining what constitutes
  6  6 good cause, the court shall consider the length of the
  6  7 pretrial detention of the respondent.
  6  8    2A.  The respondent, the attorney general, or the judge
  6  9 shall have the right to demand that the trial be before a
  6 10 jury.  Such demand for the trial to be before a jury shall be
  6 11 filed, in writing, at least ten days prior to trial.  The
  6 12 number and selection of jurors shall be determined as provided
  6 13 in chapter 607A.  If no demand is made, the trial shall be
  6 14 before the court.  Except as otherwise provided, the Iowa
  6 15 rules of evidence and the Iowa rules of civil procedure shall
  6 16 apply to all civil commitment proceedings initiated pursuant
  6 17 to this chapter.
  6 18    Sec. 9.  Section 229A.7, subsections 3, 4, and 5, Code
  6 19 2001, are amended to read as follows:
  6 20    3.  At trial, the court or jury shall determine whether,
  6 21 beyond a reasonable doubt, the respondent is a sexually
  6 22 violent predator.  If the determination that the respondent is
  6 23 a sexually violent predator is made by a jury, the
  6 24 determination case is before a jury, the verdict shall be by
  6 25 unanimous verdict of such jury that the respondent is a
  6 26 sexually violent predator.
  6 27    If the court or jury determines that the respondent is a
  6 28 sexually violent predator, the respondent shall be committed
  6 29 to the custody of the director of the department of human
  6 30 services for control, care, and treatment until such time as
  6 31 the person's mental abnormality has so changed that the person
  6 32 is safe to be at large placed in a transitional release
  6 33 program or discharged.  The determination may be appealed.
  6 34    4.  The control, care, and treatment of a person determined
  6 35 to be a sexually violent predator shall be provided at a
  7  1 facility operated by the department of human services.  At all
  7  2 times prior to placement in a transitional release program or
  7  3 release with or without supervision, persons committed for
  7  4 control, care, and treatment by the department of human
  7  5 services pursuant to this chapter shall be kept in a secure
  7  6 facility and those patients shall be segregated at all times
  7  7 from any other patient under the supervision of the department
  7  8 of human services.  A person committed pursuant to this
  7  9 chapter to the custody of the department of human services may
  7 10 be kept in a facility or building separate from any other
  7 11 patient under the supervision of the department of human
  7 12 services.  The department of human services may enter into a
  7 13 chapter 28E agreement with the department of corrections or
  7 14 other appropriate agency in this state or another state for
  7 15 the confinement of patients who have been determined to be
  7 16 sexually violent predators.  Patients who are in the
  7 17 confinement custody of the director of the department of
  7 18 corrections pursuant to a chapter 28E agreement and who have
  7 19 not been placed in a transitional release program or released
  7 20 with or without supervision shall be housed and managed
  7 21 separately from criminal offenders in the custody of the
  7 22 director of the department of corrections, and except for
  7 23 occasional instances of supervised incidental contact, shall
  7 24 be segregated from those offenders.
  7 25    5.  If the court makes the determination or the jury is not
  7 26 satisfied beyond a reasonable doubt determines that the
  7 27 respondent is not a sexually violent predator, the court shall
  7 28 direct the respondent's release.  Upon release, the respondent
  7 29 shall comply with any requirements to register as a sex
  7 30 offender as provided in chapter 692A.  Upon a mistrial, the
  7 31 court shall direct that the respondent be held at an
  7 32 appropriate secure facility until another trial is conducted.
  7 33 Any subsequent trial following a mistrial shall be held within
  7 34 ninety days of the previous trial, unless such subsequent
  7 35 trial is continued or the ninety days are waived as provided
  8  1 in subsection 2.
  8  2    Sec. 10.  Section 229A.8, Code 2001, is amended to read as
  8  3 follows:
  8  4    229A.8  ANNUAL EXAMINATIONS, AND REVIEW – DISCHARGE OR
  8  5 TRANSITIONAL RELEASE PETITIONS BY PERSONS COMMITTED.
  8  6    1.  Upon civil commitment of a person pursuant to this
  8  7 chapter, a rebuttable presumption exists that the commitment
  8  8 should continue.  The presumption may be rebutted when facts
  8  9 exist to warrant a hearing to determine whether a committed
  8 10 person no longer suffers from a mental abnormality which makes
  8 11 the person likely to engage in predatory acts constituting
  8 12 sexually violent offenses if discharged, or the committed
  8 13 person is suitable for placement in a transitional release
  8 14 program.
  8 15    1. 2.  Each A person committed under this chapter shall
  8 16 have a current examination of the person's mental abnormality
  8 17 made once every year.  The person may retain, or if the person
  8 18 is indigent and so requests, the court may appoint a qualified
  8 19 expert or professional person to examine such person, and such
  8 20 expert or professional person shall be given access to all
  8 21 records concerning the person.
  8 22    2. 3.  The annual report shall be provided to the court
  8 23 that committed the person under this chapter.  The court shall
  8 24 conduct an annual review and probable cause, if warranted, set
  8 25 a final hearing on the status of the committed person.  The
  8 26 annual review may be based only on written records.
  8 27    3. 4.  Nothing contained in this chapter shall prohibit the
  8 28 person from otherwise petitioning the court for discharge or
  8 29 placement in a transitional release program at the probable
  8 30 cause hearing annual review.  The director of human services
  8 31 shall provide the committed person with an annual written
  8 32 notice of the person's right to petition the court for
  8 33 discharge over the director's objection or placement in a
  8 34 transitional release program without authorization from the
  8 35 director.  The notice shall contain a waiver of rights.  The
  9  1 director shall forward the notice and waiver form to the court
  9  2 with the annual report.
  9  3    4. 5.  The following provisions apply to an annual review:
  9  4    a.  The committed person shall have a right to have an
  9  5 attorney represent the person at the probable cause hearing
  9  6 but the person is not entitled to be present at the hearing,
  9  7 if a hearing is held.  If the court at the hearing determines
  9  8 that probable cause exists to believe that the person's
  9  9    b.  The Iowa rules of evidence do not apply.
  9 10    c.  The committed person may waive an annual review or may
  9 11 stipulate that the commitment should continue for another
  9 12 year.
  9 13    d.  The court shall review the annual report of the state
  9 14 and the report of any qualified expert or professional person
  9 15 retained by or appointed for the committed person and may
  9 16 receive arguments from the attorney general and the attorney
  9 17 for the committed person if either requests a hearing.  The
  9 18 request for a hearing must be in writing, within thirty days
  9 19 of the notice of annual review being provided to counsel for
  9 20 the committed person, or on motion by the court.  Such a
  9 21 hearing may be conducted in writing without any attorneys
  9 22 present.
  9 23    e.  The burden is on the committed person to show by a
  9 24 preponderance of the evidence that there is competent evidence
  9 25 which would lead a reasonable person to believe a final
  9 26 hearing should be held to determine either of the following:
  9 27    (1)  The mental abnormality of the committed person has so
  9 28 changed that the person is safe to be at large and will not
  9 29 likely to engage in predatory acts or constituting sexually
  9 30 violent offenses if discharged, then the court shall set a
  9 31 final hearing on the issue.
  9 32    (2)  The committed person is suitable for placement in a
  9 33 transitional release program pursuant to section 229A.8A.
  9 34    If the committed person shows by a preponderance of the
  9 35 evidence that a final hearing should be held on either
 10  1 determination under subparagraph (1) or (2), or both, the
 10  2 court shall set a final hearing within sixty days of the
 10  3 determination that a final hearing be held.
 10  4    f.  If at the time for the annual review the committed
 10  5 person has filed a petition for discharge or placement in a
 10  6 transitional release program with authorization from the
 10  7 director of human services, the court shall set a final
 10  8 hearing within ninety days of the authorization by the
 10  9 director, and no annual review shall be held.
 10 10    g.  If the committed person has not filed a petition, or
 10 11 has filed a petition for discharge or for placement in a
 10 12 transitional release program without authorization from the
 10 13 director of human services, the court shall first conduct the
 10 14 annual review as provided in this subsection.
 10 15    h.  Any petition can summarily be dismissed by the court as
 10 16 provided in section 229A.11.
 10 17    i.  If at the time of the annual review the committed
 10 18 person is in a secure facility and not in the transitional
 10 19 release program, the state shall have the right to demand that
 10 20 both determinations in paragraph "e" be submitted to the court
 10 21 or jury.
 10 22    5. 6.  At the final hearing, the The following provisions
 10 23 shall apply to a final hearing:
 10 24    a.  The committed person shall be entitled to be present an
 10 25 attorney and is entitled to the benefit of all constitutional
 10 26 protections that were afforded the person at the original
 10 27 commitment proceeding.  The attorney general shall represent
 10 28 the state and shall have a right to a jury trial and to have
 10 29 the committed person evaluated by experts chosen by the state
 10 30 committed person shall be entitled to a jury trial, if such a
 10 31 demand is made in writing and filed with the clerk of court at
 10 32 least ten days prior to the final hearing.
 10 33    b.  The committed person shall also have the right to have
 10 34 experts evaluate the person on the person's behalf.  The court
 10 35 shall appoint an expert if the person is indigent and requests
 11  1 an appointment.
 11  2    c.  The attorney general shall represent the state and
 11  3 shall have a right to demand a jury trial.  The jury demand
 11  4 shall be filed, in writing, at least ten days prior to the
 11  5 final hearing.
 11  6    d.  The burden of proof at the final hearing shall be upon
 11  7 the state to prove beyond a reasonable doubt that the either
 11  8 of the following:
 11  9    (1)  The committed person's mental abnormality or
 11 10 personality disorder remains such that the person is not safe
 11 11 to be at large and if discharged is likely to engage in acts
 11 12 of sexual violence predatory acts that constitute sexually
 11 13 violent offenses if discharged.
 11 14    (2)  The committed person is not suitable for placement in
 11 15 a transitional release program pursuant to section 229A.8A.
 11 16    e.  If the director of human services has authorized the
 11 17 committed person to petition for discharge or for placement in
 11 18 a transitional release program and the case is before a jury,
 11 19 testimony by a victim of a prior sexually violent offense
 11 20 committed by the person is not admissible.  If the director
 11 21 has not authorized the petition or the case is before the
 11 22 court, testimony by a victim of a sexually violent offense
 11 23 committed by the person may be admitted.
 11 24    f.  If a mistrial is declared, the confinement or placement
 11 25 status of the committed person shall not change.  After a
 11 26 mistrial has been declared, a new trial must be held within
 11 27 ninety days of the mistrial.
 11 28    7.  The state and the committed person may stipulate to a
 11 29 transfer to a transitional release program if the court
 11 30 approves the stipulation.
 11 31    Sec. 11.  NEW SECTION.  229A.8A  TRANSITIONAL RELEASE.
 11 32    1.  The department of human services is authorized to
 11 33 establish a transitional release program and provide control,
 11 34 care, and treatment, and supervision of committed persons
 11 35 placed in such a program.
 12  1    2.  A committed person is suitable for placement in the
 12  2 transitional release program if the court finds that all of
 12  3 the following apply:
 12  4    a.  The committed person's mental abnormality is no longer
 12  5 such that the person is a high risk to reoffend.
 12  6    b.  The committed person has achieved and demonstrated
 12  7 significant insights into the person's sex offending cycle.
 12  8    c.  The committed person has accepted responsibility for
 12  9 past behavior and understands the impact sexually violent
 12 10 crimes have upon a victim.
 12 11    d.  A detailed relapse prevention plan has been developed
 12 12 and accepted by the treatment provider which is appropriate
 12 13 for the committed person's mental abnormality and sex
 12 14 offending history.
 12 15    e.  No major discipline reports have been issued for the
 12 16 committed person for a period of six months.
 12 17    f.  The committed person is not likely to escape or attempt
 12 18 to escape custody pursuant to section 229A.5B.
 12 19    g.  The committed person is not likely to commit acts
 12 20 constituting sexually violent offenses while in the program.
 12 21    h.  The placement is in the best interest of the committed
 12 22 person.
 12 23    i.  The committed person has demonstrated a willingness to
 12 24 agree to and abide by all rules of the program.
 12 25    3.  If the committed person does not agree to the
 12 26 conditions of release, the person is not eligible for the
 12 27 transitional release program.
 12 28    4.  For purposes of registering as a sex offender under
 12 29 chapter 692A, a person placed in the transitional release
 12 30 program shall be classified a "high-risk" sex offender and
 12 31 public notification shall be as provided in section 692A.13A,
 12 32 subsection 2.  A committed person who refuses to register as a
 12 33 sex offender is not eligible for placement in a transitional
 12 34 release program.
 12 35    5.  Committed persons in the transitional release program
 13  1 are not necessarily required to be segregated from other
 13  2 persons.
 13  3    6.  The department of human services shall be responsible
 13  4 for establishing and implementing the rules and directives
 13  5 regarding the location of the transitional release program,
 13  6 staffing needs, restrictions on confinement and the movement
 13  7 of committed persons, and for assessing the progress of
 13  8 committed persons in the program.  The court may also impose
 13  9 conditions on a committed person placed in the program.
 13 10    7.  The department of human services may contract with
 13 11 other government or private agencies, including the department
 13 12 of corrections, to implement and administer the transitional
 13 13 release program.
 13 14    Sec. 12.  NEW SECTION.  229A.8B  VIOLATIONS OF TRANSITIONAL
 13 15 RELEASE.
 13 16    1.  The treatment staff in a transitional release program
 13 17 may remove the committed person from the program for a
 13 18 violation of any rule or directive, and return the person to a
 13 19 secure facility.  The treatment staff may request the district
 13 20 court to issue an emergency ex parte order directing any law
 13 21 enforcement officer to take the committed person into custody
 13 22 so that the person can be returned to a secure facility.  The
 13 23 request for an ex parte order may be made orally or by
 13 24 telephone, but the original written request or a facsimile
 13 25 copy of the original request shall be filed with the clerk of
 13 26 court no later than four-thirty p.m. on the next business day
 13 27 the office of the clerk of court is open.
 13 28    2.  If a committed person absconds from a transitional
 13 29 release program in violation of the rules or directives, a
 13 30 presumption arises that the person poses a risk to public
 13 31 safety.  The department of human services, in cooperation with
 13 32 local law enforcement agencies, may make a public announcement
 13 33 about the absconder.  The public announcement may include a
 13 34 description of the committed person, that the person is in
 13 35 transitional release from the sexually violent predator
 14  1 program, and any other information important to public safety.
 14  2    3.  Upon the return of the committed person to a secure
 14  3 facility, the director of human services or the director's
 14  4 designee shall notify the court that issued the ex parte order
 14  5 that the absconder has been returned to a secure facility, and
 14  6 the court shall set a hearing within five days to determine if
 14  7 a violation occurred.  If a court order was not issued, the
 14  8 director or the director's designee shall contact the nearest
 14  9 district court with jurisdiction to set a hearing to determine
 14 10 whether a violation of the rules or directives occurred.  The
 14 11 court shall schedule a hearing within five days of receiving
 14 12 notice that the committed person has been returned from the
 14 13 transitional release program to a secure facility.
 14 14    4.  At the hearing the burden shall be upon the attorney
 14 15 general to show by a preponderance of the evidence that a
 14 16 violation of the rules or directives occurred.  The hearing
 14 17 shall be to the court.
 14 18    5.  If the court determines a violation occurred, the court
 14 19 shall either order the committed person to be returned to the
 14 20 transitional release program or to be confined in a secure
 14 21 facility.  The court may impose further conditions upon the
 14 22 committed person if returned to the transitional release
 14 23 program.  If the court determines no violation occurred, the
 14 24 committed person shall be returned to the transitional release
 14 25 program.
 14 26    Sec. 13.  NEW SECTION.  229A.9A  RELEASE WITH OR WITHOUT
 14 27 SUPERVISION.
 14 28    1.  In any proceeding under section 229A.8, the court may
 14 29 order the committed person released with or without
 14 30 supervision if any of the following apply:
 14 31    a.  The attorney general stipulates to the release with or
 14 32 without supervision.
 14 33    b.  The court or jury has determined that the person should
 14 34 be discharged from the program, but the court has determined
 14 35 it is in the best interest of the community to order release
 15  1 with or without supervision before the committed person is
 15  2 discharged.
 15  3    2.  If release with or without supervision is ordered, the
 15  4 department of human services shall prepare within thirty days
 15  5 of the order of the court a release plan addressing the
 15  6 person's needs for counseling, medication, community support
 15  7 services, residential services, vocational services, alcohol
 15  8 or other drug abuse treatment, sex offender treatment, or any
 15  9 other treatment or supervision necessary.
 15 10    3.  The court shall set a hearing on the release plan
 15 11 prepared by the department of human services before the
 15 12 committed person is released from a secure facility or a
 15 13 transitional release program.
 15 14    4.  If the court orders release with supervision, the court
 15 15 shall order supervision by an agency with jurisdiction that is
 15 16 familiar with the placement of criminal offenders in the
 15 17 community.  The agency with jurisdiction shall be responsible
 15 18 for initiating proceedings for violations of the release plan
 15 19 as provided in section 229A.9B.  If the court orders release
 15 20 without supervision, the agency with jurisdiction shall also
 15 21 be responsible for initiating proceedings for any violations
 15 22 of the release plan as provided in section 229A.9B.
 15 23    5.  A committed person may not petition the court for
 15 24 release with or without supervision.
 15 25    6.  A committed person released with or without supervision
 15 26 is not considered discharged from civil commitment under this
 15 27 chapter.
 15 28    7.  After being released with or without supervision, the
 15 29 person may petition the court for discharge as provided in
 15 30 section 229A.8.
 15 31    8.  The court shall retain jurisdiction over the committed
 15 32 person who has been released with or without supervision until
 15 33 the person is discharged from the program.  The department of
 15 34 human services shall not be held liable for any acts committed
 15 35 by a committed person who has been ordered released with or
 16  1 without supervision.
 16  2    Sec. 14.  NEW SECTION.  229A.9B  VIOLATIONS OF RELEASE WITH
 16  3 OR WITHOUT SUPERVISION.
 16  4    1.  If a committed person violates the release plan, the
 16  5 agency with jurisdiction over the person may request the
 16  6 district court to issue an emergency ex parte order directing
 16  7 any law enforcement officer to take the person into custody so
 16  8 that the person can be returned to a secure facility.  The
 16  9 request for an ex parte order may be made orally or by
 16 10 telephone, but the original written request or a facsimile
 16 11 copy of the request shall be filed with the clerk of court no
 16 12 later than four-thirty p.m. on the next business day the
 16 13 office of the clerk of court is open.
 16 14    2.  If a committed person has absconded in violation of the
 16 15 conditions of the person's release plan, a presumption arises
 16 16 that the person poses a risk to public safety.  The department
 16 17 of human services or contracting agency, in cooperation with
 16 18 local law enforcement agencies, may make a public announcement
 16 19 about the absconder.  The public announcement may include a
 16 20 description of the committed person, that the committed person
 16 21 is on release with or without supervision from the sexually
 16 22 violent predator program, and any other information pertinent
 16 23 to public safety.
 16 24    3.  Upon the return of the committed person to a secure
 16 25 facility, the director of human services or the director's
 16 26 designee shall notify the court that issued the ex parte order
 16 27 that the committed person has been returned to a secure
 16 28 facility, and the court shall set hearing within five days to
 16 29 determine if a violation occurred.  If a court order was not
 16 30 issued, the director or the director's designee shall contact
 16 31 the nearest district court with jurisdiction to set a hearing
 16 32 to determine whether a violation of the conditions of the
 16 33 release plan occurred.  The court shall schedule a hearing
 16 34 within five days of receiving notice that the committed person
 16 35 has been returned to a secure facility.
 17  1    4.  At the hearing the burden shall be upon the attorney
 17  2 general to show by a preponderance of the evidence that a
 17  3 violation of the release plan occurred.
 17  4    5.  If the court determines a violation occurred, the court
 17  5 shall receive release recommendations from the department of
 17  6 human services and either order that the committed person be
 17  7 returned to release with or without supervision or placed in a
 17  8 transitional release program, or be confined in a secure
 17  9 facility.  The court may impose further conditions upon the
 17 10 committed person if returned to release with or without
 17 11 supervision or placed in the transitional release program.  If
 17 12 the court determines no violation occurred, the committed
 17 13 person shall be returned to release with or without
 17 14 supervision.
 17 15    Sec. 15.  Section 229A.10, Code 2001, is amended to read as
 17 16 follows:
 17 17    229A.10  PETITION FOR DISCHARGE – PROCEDURE.
 17 18    1.  If the director of human services determines that the
 17 19 person's mental abnormality has so changed that the person is
 17 20 not likely to commit predatory acts or sexually violent
 17 21 offenses if discharged, the director shall authorize the
 17 22 person to petition the court for discharge.  The petition
 17 23 shall be served upon the court and the attorney general.  The
 17 24 court, upon receipt of the petition for discharge, shall order
 17 25 a hearing within thirty days.  The attorney general shall
 17 26 represent the state, and shall have the right to have the
 17 27 petitioner examined by an expert or professional person of the
 17 28 attorney general's choice.  The hearing shall be before a jury
 17 29 if demanded by either the petitioner or the attorney general.
 17 30 The If the attorney general objects to the petition for
 17 31 discharge, the burden of proof shall be upon the attorney
 17 32 general to show beyond a reasonable doubt that the
 17 33 petitioner's mental abnormality or personality disorder
 17 34 remains such that the petitioner is not safe to be at large
 17 35 and that if discharged is likely to commit engage in predatory
 18  1 acts or sexually violent that constitute sexually violent
 18  2 offenses if discharged.
 18  3    2.  Upon a finding that the state has failed to meet its
 18  4 burden of proof under this section, or a stipulation by the
 18  5 state, the court shall authorize the release of the committed
 18  6 person to be discharged.  Release may be ordered with or
 18  7 without supervision.  If supervised release is ordered, the
 18  8 department of human services shall prepare a plan addressing
 18  9 the person's needs for counseling, medication, community
 18 10 support services, residential services, vocational services,
 18 11 alcohol and other drug abuse treatment, and any other
 18 12 treatment or supervision necessary.  If the court orders the
 18 13 release of the committed person with supervision, the court
 18 14 shall order supervision by an agency with jurisdiction that is
 18 15 familiar with the placement of criminal offenders in the
 18 16 community.
 18 17    Sec. 16.  Section 229A.11, Code 2001, is amended to read as
 18 18 follows:
 18 19    229A.11  SUBSEQUENT DISCHARGE PETITIONS, – LIMITATIONS.
 18 20    Nothing in this chapter shall prohibit a person from filing
 18 21 a petition for discharge or placement in a transitional
 18 22 release program, pursuant to this chapter.  However, if a
 18 23 person has previously filed a petition for discharge or for
 18 24 placement in a transitional release program without the
 18 25 authorization of the director of human services, and the court
 18 26 determines either upon review of the petition or following a
 18 27 hearing that the petition was frivolous or that the
 18 28 petitioner's condition had not so changed that the person was
 18 29 safe to be at large not likely to engage in predatory acts
 18 30 constituting sexually violent offenses if discharged, or was
 18 31 not suitable for placement in the transitional release
 18 32 program, then the court shall summarily deny the subsequent
 18 33 petition unless the petition contains facts upon which a court
 18 34 could find the condition of the petitioner had so changed that
 18 35 a hearing was warranted.  Upon receipt of a first or
 19  1 subsequent petition from a committed person without the
 19  2 director's authorization, the court shall endeavor whenever
 19  3 possible to review the petition and determine if the petition
 19  4 is based upon frivolous grounds.  If the court determines that
 19  5 a petition is frivolous, the court shall deny dismiss the
 19  6 petition without a hearing.
 19  7    Sec. 17.  Section 229A.12, Code 2001, is amended to read as
 19  8 follows:
 19  9    229A.12  DIRECTOR OF HUMAN SERVICES – RESPONSIBILITY FOR
 19 10 COSTS – REIMBURSEMENT.
 19 11    The director of human services shall be responsible for all
 19 12 costs relating to the evaluation, treatment, and services
 19 13 provided to persons a person that are incurred after the
 19 14 person is committed to the director's custody after the court
 19 15 or jury determines that the respondent is a sexually violent
 19 16 predator and pursuant to commitment under any provision of
 19 17 this chapter.  If placement in a transitional release program
 19 18 or supervision is ordered pursuant to section 229A.10, the
 19 19 director shall also be responsible for all costs related to
 19 20 the transitional release program or to the supervision and
 19 21 treatment of any person.  Reimbursement may be obtained by the
 19 22 director from the patient and any person legally liable or
 19 23 bound by contract for the support of the patient for the cost
 19 24 of confinement, or of care and treatment provided.  As used in
 19 25 this section, "any person legally liable" does not include a
 19 26 political subdivision.
 19 27    Sec. 18.  NEW SECTION.  229A.12A  DIRECTOR OF THE
 19 28 DEPARTMENT OF CORRECTIONS – RESPONSIBILITY FOR SAFEKEEPER.
 19 29    The director of the department of corrections shall have
 19 30 authority, once a person is detained pursuant to section
 19 31 229A.5, to make a determination as to the appropriate secure
 19 32 facility within the department of corrections in which the
 19 33 safekeeper is to be placed, taking into consideration the
 19 34 safekeeper's medical needs and ability to interact with
 19 35 offenders who have been committed to the custody of the
 20  1 director of the department of corrections.  The director has
 20  2 authority to determine the safekeeper's degree of segregation
 20  3 from offenders, including whether total segregation is
 20  4 appropriate under the circumstances or whether the safekeeper
 20  5 should be permitted to participate in normal confinement
 20  6 activities in the presence of offenders.
 20  7    Sec. 19.  Section 229A.14, Code 2001, is amended to read as
 20  8 follows:
 20  9    229A.14  RELEASE OF CONFIDENTIAL OR PRIVILEGED INFORMATION
 20 10 AND RECORDS.
 20 11    Notwithstanding anything in chapter 22 to the contrary, any
 20 12 provision in the Code regarding confidentiality to the
 20 13 contrary, any relevant information and records which would
 20 14 otherwise be confidential or privileged, except information
 20 15 subject to attorney-client privilege and attorney work
 20 16 product, shall be released to the agency with jurisdiction or
 20 17 the attorney general for the purpose of meeting the notice
 20 18 requirement provided in section 229A.3 and determining whether
 20 19 a person is or continues to be a sexually violent predator.
 20 20    Sec. 20.  NEW SECTION.  229A.15A  CIVIL PROTECTIVE ORDER.
 20 21    A victim of a crime that was committed before the filing of
 20 22 a petition under this chapter by a safekeeper or by a person
 20 23 subjected to an order of civil commitment pursuant to this
 20 24 chapter, may obtain a protective order against the safekeeper
 20 25 or person using the procedures set out in section 915.22.
 20 26    Sec. 21.  NEW SECTION.  229A.15B  RULEMAKING AUTHORITY.
 20 27    The department of human services shall adopt rules pursuant
 20 28 to chapter 17A necessary to administer this chapter.
 20 29    Sec. 22.  Section 811.1, subsections 1 and 2, Code 2001,
 20 30 are amended to read as follows:
 20 31    1.  A defendant awaiting judgment of conviction and
 20 32 sentencing following either a plea or verdict of guilty of a
 20 33 class "A" felony, murder, any class "B" felony included in
 20 34 section 462A.14 or 707.6A; felonious assault; felonious child
 20 35 endangerment; sexual abuse in the second degree; sexual abuse
 21  1 in the third degree; kidnapping; robbery in the first degree;
 21  2 arson in the first degree; burglary in the first degree; any
 21  3 felony included in section 124.401, subsection 1, paragraph
 21  4 "a" or "b"; or a second or subsequent offense under section
 21  5 124.401, subsection 1, paragraph "c"; or any felony punishable
 21  6 under section 902.9, subsection 1; any public offense
 21  7 committed while detained pursuant to section 229A.5; or any
 21  8 public offense committed while subject to an order of
 21  9 commitment pursuant to chapter 229A.
 21 10    2.  A defendant appealing a conviction of a class "A"
 21 11 felony; murder; any class "B" or "C" felony included in
 21 12 section 462A.14 or 707.6A; felonious assault; felonious child
 21 13 endangerment; sexual abuse in the second degree; sexual abuse
 21 14 in the third degree; kidnapping; robbery in the first degree;
 21 15 arson in the first degree; burglary in the first degree; any
 21 16 felony included in section 124.401, subsection 1, paragraph
 21 17 "a" or "b"; or a second or subsequent conviction under section
 21 18 124.401, subsection 1, paragraph "c"; or any felony punishable
 21 19 under section 902.9, subsection 1; any public offense
 21 20 committed while detained pursuant to section 229A.5; or any
 21 21 public offense committed while subject to an order of
 21 22 commitment pursuant to chapter 229A.
 21 23    Sec. 23.  Section 901A.1, Code Supplement 2001, is amended
 21 24 by adding the following new subsection:
 21 25    NEW SUBSECTION.  3.  As used in this chapter, the term
 21 26 "sexually violent offense" means the same as defined in
 21 27 section 229A.2.
 21 28    Sec. 24.  Section 901A.2, Code 2001, is amended by adding
 21 29 the following new subsection:
 21 30    NEW SUBSECTION.  5A.  A person who has been placed in a
 21 31 transitional release program, released with or without
 21 32 supervision, or discharged pursuant to chapter 229A, and who
 21 33 is subsequently convicted of a sexually predatory offense or a
 21 34 sexually violent offense, shall be sentenced to life in prison
 21 35 on the same terms as a class "A" felon under section 902.1,
 22  1 notwithstanding any other provision of the Code to the
 22  2 contrary.  The terms and conditions applicable to sentences
 22  3 for class "A" felons under chapters 901 through 909 shall
 22  4 apply to persons sentenced under this subsection.  However, if
 22  5 the person commits a sexually violent offense which is a
 22  6 misdemeanor offense under chapter 709, the person shall be
 22  7 sentenced to life in prison, with eligibility for parole as
 22  8 provided in chapter 906.
 22  9    Sec. 25.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection
 22 10 3, shall not apply to this Act.
 22 11    Sec. 26.  DIRECTIVE TO CODE EDITOR.  The Code editor is
 22 12 directed to renumber sections in chapter 229A and correct
 22 13 internal references as necessary in conjunction with the
 22 14 enactment of this Act.
 22 15    Sec. 27.  EFFECTIVE DATE.  This Act, being deemed of
 22 16 immediate importance, takes effect upon enactment.  
 22 17 
 22 18 
 22 19                                                             
 22 20                               MARY E. KRAMER
 22 21                               President of the Senate
 22 22 
 22 23 
 22 24                                                             
 22 25                               BRENT SIEGRIST
 22 26                               Speaker of the House
 22 27 
 22 28    I hereby certify that this bill originated in the Senate and
 22 29 is known as Senate File 2286, Seventy-ninth General Assembly.
 22 30 
 22 31 
 22 32                                                             
 22 33                               MICHAEL E. MARSHALL
 22 34                               Secretary of the Senate
 22 35 Approved                , 2002
 23  1 
 23  2 
 23  3                                
 23  4 THOMAS J. VILSACK
 23  5 Governor
     
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