SF 2356 (LSB 5295SV (2) 87)

SENATE FILE 2356

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO SF 2147)

A BILL FOR

An Act relating to sexually violent predators, the accumulation of earned time by offenders, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 229A.2, subsection 4, Code 2018, is amended to read as follows:
   4.  “Discharge” means an unconditional discharge from the sexually violent predator program. A person released from a secure facility into a transitional release program or released with or without supervision is not considered to be discharged.
    Sec. 2.  Section 229A.5B, subsection 1, unnumbered paragraph 1, Code 2018, is amended to read as follows:
   A person who is detained pursuant to section 229A.5 or is subject to an order of civil commitment under this chapter shall remain in custody unless released by court order or discharged under section 229A.8 or 229A.10. A person who has been placed in a transitional release program or who is under release with or without supervision is considered to be in custody. A person in custody under this chapter shall not do any of the following:
    Sec. 3.  Section 229A.5C, subsection 4, Code 2018, is amended to read as follows:
   4.  A person who committed a public offense while in a transitional release program or on release with or without supervision may be returned to a secure facility operated by the department of human services upon completion of any term of confinement that resulted from the commission of the public offense.
    Sec. 4.  Section 229A.6A, subsection 1, paragraph d, Code 2018, is amended to read as follows:
   d.  To a facility for placement or treatment in a transitional release program or for release with or without supervision. A transport order is not required under this paragraph.
    Sec. 5.  Section 229A.7, subsection 7, Code 2018, is amended to read as follows:
   7.  The control, care, and treatment of a person determined to be a sexually violent predator shall be provided at a facility operated by the department of human services. At all times prior to placement in a transitional release program or release with or without supervision, persons committed for control, care, and treatment by the department of human services pursuant to this chapter shall be kept in a secure facility and those patients shall be segregated at all times from any other patient under the supervision of the department of human services. A person committed pursuant to this chapter to the custody of the department of human services may be kept in a facility or building separate from any other patient under the supervision of the department of human services. The department of human services may enter into a chapter 28E agreement with the department of corrections or other appropriate agency in this state or another state for the confinement of patients who have been determined to be sexually violent predators. Patients who are in the custody of the director of the department of corrections pursuant to a chapter 28E agreement and who have not been placed in a transitional release program or released with or without supervision shall be housed and managed separately from criminal offenders in the custody of the director of the department of corrections, and except for occasional instances of supervised incidental contact, shall be segregated from those offenders.
    Sec. 6.  Section 229A.8, subsection 5, paragraph e, subparagraph (2), Code 2018, is amended to read as follows:
   (2)  (a)  If the committed person shows by a preponderance of the evidence that a final hearing should be held on either determination under subparagraph (1), subparagraph division (a) or (b), or both, the court shall set a final hearing within sixty days of the determination that a final hearing be held.
   (b)  The committed person may waive the sixty-day final hearing requirement under subparagraph subdivision (a); however, the committed person or the attorney for the committed person may reassert a demand that the final hearing be held within sixty days from the date of filing the demand with the clerk of court.
   (c)  The final hearing may be continued upon request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and if the committed person is not substantially prejudiced. In determining what constitutes good cause, the court shall consider the length of the pretrial detention of the committed person.
    Sec. 7.  Section 229A.8B, subsection 3, Code 2018, is amended to read as follows:
   3.  Upon the return of the committed person to a secure facility, the director of human services or the director’s designee shall notify the court that issued the ex parte order that the absconder has been returned to a secure facility, and the court shall set a hearing within five days to determine if a violation occurred. If a court order was not issued, the director or the director’s designee shall contact the nearest district court with jurisdiction to set a hearing to determine whether a violation of the rules or directives occurred. The court shall schedule a hearing within five days of after receiving notice that the committed person has been returned from the transitional release program to a secure facility.
    Sec. 8.  Section 229A.9A, Code 2018, is amended to read as follows:
   229A.9A  Release with or without supervision.
   1.  In any proceeding under section 229A.8, the court may order the committed person released with or without supervision if any of the following apply:
   a.  The attorney general stipulates to the release with or without supervision.
   b.  The court or jury has determined that the person should be discharged released from the program a secure facility or a transitional release program, but the court has determined the person suffers from a mental abnormality and it is in the best interest of the community to order release with or without supervision before the committed person is discharged.
   2.  If release with or without supervision is ordered, the department of human services shall prepare within sixty days of the order of the court a release plan addressing the person’s needs for counseling, medication, community support services, residential services, vocational services, alcohol or other drug abuse treatment, sex offender treatment, or any other treatment or supervision necessary.
   3.  The court shall set a hearing on the release plan prepared by the department of human services before the committed person is released from a secure facility or a transitional release program.
   4.  If the court orders release with supervision, the court shall order supervision by an agency with jurisdiction that is familiar with the placement of criminal offenders in the community. The agency with jurisdiction shall be responsible for initiating proceedings for violations of the release plan as provided in section 229A.9B. If the court orders release without supervision, the agency with jurisdiction shall also be responsible for initiating proceedings for any violations of the release plan as provided in section 229A.9B.
   5.  A committed person may not petition the court for release with or without supervision.
   6.  A committed person released with or without supervision is not considered discharged from civil commitment under this chapter.
   7.  After being released with or without supervision, the person may petition the court for discharge as provided in section 229A.8.
   8.  The court shall retain jurisdiction over the committed person who has been released with or without supervision until the person is discharged from the program. The department of human services or a judicial district department of correctional services shall not be held liable for any acts committed by a committed person who has been ordered released with or without supervision.
    Sec. 9.  Section 229A.9B, Code 2018, is amended to read as follows:
   229A.9B  Violations of release with or without supervision.
   1.  If a committed person violates the release plan, the agency with jurisdiction over the person may request the district court to issue an emergency ex parte order directing any law enforcement officer to take the person into custody so that the person can be returned to a secure facility. The request for an ex parte order may be made orally or by telephone, but the original written request or a facsimile copy of the request shall be filed with the clerk of court no later than 4:30 p.m. on the next business day the office of the clerk of court is open.
   2.  If a committed person has absconded in violation of the conditions of the person’s release plan, a presumption arises that the person poses a risk to public safety. The department of human services or contracting agency, in cooperation with local law enforcement agencies, may make a public announcement about the absconder. The public announcement may include a description of the committed person, that the committed person is on release with or without supervision from the sexually violent predator program, and any other information pertinent to public safety.
   3.  Upon the return of the committed person to a secure facility, the director of human services or the director’s designee shall notify the court that issued the ex parte order that the committed person has been returned to a secure facility, and the court shall set hearing within five days to determine if a violation occurred. If a court order was not issued, the director or the director’s designee shall contact the nearest district court with jurisdiction to set a hearing to determine whether a violation of the conditions of the release plan occurred. The court shall schedule a hearing within five days of after receiving notice that the committed person has been returned to a secure facility.
   4.  At the hearing, the burden shall be upon the attorney general to show by a preponderance of the evidence that a violation of the release plan occurred.
   5.  If the court determines a violation occurred, the court shall receive release recommendations from the department of human services and either order that the committed person be returned to release with or without supervision or placed in a transitional release program, or be confined in a secure facility. The court may impose further conditions upon the committed person if returned to release with or without supervision or placed in the transitional release program. If the court determines no violation occurred, the committed person shall be returned to release with or without supervision.
    Sec. 10.  Section 229A.15, Code 2018, is amended to read as follows:
   229A.15  Court records —— sealed and opened by court order.
   1.  Any Except as otherwise provided in this section, any psychological reports, drug and alcohol reports, treatment records, reports of any diagnostic center, medical records, or victim impact statements which have been submitted to the court or admitted into evidence under this chapter shall be part of the record but shall be sealed and opened only on order of the court.
   2.  The documents described in subsection 1 shall be available to the prosecuting attorney or attorney general, the committed person, and the attorney for the committed person without an order of the court.
    Sec. 11.  Section 901A.2, subsection 6, Code 2018, is amended to read as follows:
   6.  A person who has been placed in a transitional release program, released with or without supervision, or discharged pursuant to chapter 229A, and who is subsequently convicted of a sexually predatory offense or a sexually violent offense, shall be sentenced to life in prison on the same terms as a class “A” felon under section 902.1, notwithstanding any other provision of the Code to the contrary. The terms and conditions applicable to sentences for class “A” felons under chapters 901 through 909 shall apply to persons sentenced under this subsection. However, if the person commits a sexually violent offense which is a misdemeanor offense under chapter 709, the person shall be sentenced to life in prison, with eligibility for parole as provided in chapter 906.
    Sec. 12.  Section 903A.2, subsection 1, paragraph a, subparagraph (2), Code 2018, is amended to read as follows:
   (2)  However, an inmate required to participate in a sex offender treatment program shall not be eligible for a any reduction of sentence unless until the inmate participates in and completes a sex offender treatment program established by the director.
    Sec. 13.  Section 903A.2, subsection 1, paragraph b, subparagraph (2), Code 2018, is amended to read as follows:
   (2)  An inmate required to participate in a domestic abuse treatment program shall not be eligible for a any reduction of sentence unless until the inmate participates in and completes a domestic abuse treatment program established by the director.
    Sec. 14.  Section 903A.3, subsection 1, Code 2018, is amended to read as follows:
   1.  Upon finding that an inmate has violated an institutional rule, has failed to complete a sex offender or domestic abuse treatment program as specified in section 903A.2, or has had an action or appeal dismissed under section 610A.2, the independent administrative law judge may order forfeiture of any or all earned time accrued and not forfeited up to the date of the violation by the inmate and may order forfeiture of any or all earned time accrued and not forfeited up to the date the action or appeal is dismissed, unless the court entered such an order under section 610A.3. The independent administrative law judge has discretion within the guidelines established pursuant to section 903A.4, to determine the amount of time that should be forfeited based upon the severity of the violation. Prior violations by the inmate may be considered by the administrative law judge in the decision.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to sexually violent predators, the accumulation of earned time by offenders, and providing penalties.
   The bill strikes a provision permitting a person committed as a sexually violent predator under Code chapter 229A (committed person) to be released from a secure facility or a transitional release program without supervision. Currently, a committed person may be released with or without supervision.
   Current law provides that a final hearing on the status of the committed person shall be held if a committed person shows by a preponderance of the evidence that such a final hearing should be held to determine either the mental abnormality of the committed person has so changed that the person is not likely to engage in predatory acts constituting sexually violent offenses or the committed person is suitable for placement in a transitional release program.
   If the committed person proves by a preponderance of the evidence that a final hearing should be held, current law requires the court to set the final hearing within 60 days of that determination. After the court’s determination that a final hearing should be held, the bill permits the committed person to waive the requirement that a final hearing be held within 60 days of the court’s determination; however, the committed person or the attorney for the committed person may reassert a demand that a final hearing be held within 60 days from the date of filing the demand with the clerk of the district court.
   Currently, a committed person may be released to a transitional release program. If the committed person absconds from the transitional release program, current law requires the court to set a hearing within five days of the committed person’s return to a secure facility in order to determine if a violation occurred. The bill strikes the requirement that such a hearing be held within five days of the committed person’s return to a secure facility.
   Under the bill, if the court or jury has determined that a committed person should be released from a secure facility or a transitional release program, but the court has determined the committed person suffers from a mental abnormality and it is in the best interest of the community, the court shall release the committed person with supervision prior to discharge. Under current law, if the court or jury has determined that a committed person should be discharged from the sexually violent predator program, the court may release the committed person with or without supervision prior to such discharge if the court determines it is in the best interests of the community.
   If a committed person is released with supervision, the bill specifies that a judicial district of department of correctional services shall not be held liable for any acts of the committed person. Currently, the department of human services is the only designated agency that is not liable for the acts of a committed person released with supervision.
   If a person is released with supervision, and the person absconds in violation of the release plan, the bill strikes the requirement that a hearing be held within five days of the committed person’s return to a secure facility in order to determine if a violation occurred.
   Under current law, any medical or treatment reports of the committed person or victim impact statements which have been submitted to the court or admitted into evidence shall be sealed and opened only upon order of the court. The bill specifies that the documents under seal shall be made available to the prosecuting attorney, attorney general, committed person, or attorney for the committed person without a court order.
   The bill specifies that an inmate committed to the department of corrections who is required to participate in a sex offender treatment program shall not be eligible for any reduction of a category “A” sentence until the inmate participates in and completes a sex offender treatment program. Currently, such an inmate is not eligible for a reduction of sentence unless the inmate participates in and completes a sex offender treatment program. An inmate serving a category “A” sentence is eligible to receive one and two-tenths days for each day the inmate demonstrates good conduct and satisfactorily participates in any program or placement status.
   The bill specifies that an inmate committed to the department of corrections who is required to participate in a domestic abuse treatment program shall not be eligible for any reduction of a category “B” sentence until the inmate participates in and completes a domestic abuse treatment program. Currently, such an inmate is not eligible for a reduction of sentence unless the inmate participates in and completes a domestic abuse treatment program. An inmate serving a category “B” sentence is eligible for a reduction of sentence equal to fifteen eighty-fifths of a day for each day of good conduct by the inmate.
   Upon a finding of an independent administrative law judge, the bill specifies that an inmate committed to the department of corrections may be ordered to forfeit any or all earned time, if the inmate has failed to complete a sex offender or domestic abuse treatment program as specified in Code section 903A.2.