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S1263................................................by JUDICIARY AND RULES
VIOLENT SEXUAL PREDATORS - Amends existing law relating to the Sexual
Offender Classification Board to provide that federal or tribal
probationers residing in Idaho shall be referred to the Sexual Offender
Classification Board for review for violent sexual predator designation; to
provide that in instances when an offender designated as a violent sexual
predator plans to parole to or reside in another state immediately upon
release from incarceration, that a district court would be the appropriate
court to hear an appeal; and to provide for procedural and technical
changes in the statute regarding the Sexual Offender Classification Board.
02/02 Senate intro - 1st rdg - to printing
02/03 Rpt prt - to Jud
02/16 Rpt out - rec d/p - to 2nd rdg
02/17 2nd rdg - to 3rd rdg
02/24 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
Goedde, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley,
McKenzie, McWilliams, Noble, Noh, Pearce, Schroeder, Sorensen,
Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Hill, Richardson
Floor Sponsor - Sweet
Title apvd - to House
02/25 House intro - 1st rdg - to Jud
03/04 Rpt out - rec d/p - to 2nd rdg
03/05 2nd rdg - to 3rd rdg
03/09 3rd rdg - PASSED - 63-0-7
AYES -- Andersen, Barraclough, Bauer, Bayer, Bedke, Bell, Black,
Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow,
Cuddy, Deal, Denney, Douglas, Eberle, Ellsworth, Eskridge, Field(18),
Field(23), Gagner, Garrett, Henbest, Jaquet, Jones, Kellogg, Kulczyk,
Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller,
Mitchell, Moyle, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring,
Ringo, Roberts, Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd,
Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson,
Trail, Mr. Speaker
NAYS -- None
Absent and excused -- Barrett, Edmunson, Harwood, Lake, Naccarato,
Wills, Wood
Floor Sponsor - Clark
Title apvd - to Senate
03/10 To enrol
03/11 Rpt enrol - Pres signed
03/12 Sp signed
03/15 To Governor
03/19 Governor signed
Session Law Chapter 125
Effective: 03/19/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE SENATE
SENATE BILL NO. 1263
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO THE SEXUAL OFFENDER REGISTRATION AND NOTIFICATION ACT; AMENDING
3 SECTION 18-8303, IDAHO CODE, TO FURTHER DEFINE THE TERM "VIOLENT SEXUAL
4 PREDATOR"; AMENDING SECTION 18-8314, IDAHO CODE, TO PROVIDE THAT THE SEX-
5 UAL OFFENDER CLASSIFICATION BOARD MAY CONSIDER REVIEWING REFERRED OFFEND-
6 ERS FOR VIOLENT SEXUAL PREDATOR DESIGNATION AND TO PROVIDE FOR FEDERAL AND
7 TRIBAL COURTS TO MAKE REFERRALS TO THE BOARD; AMENDING SECTION 18-8315,
8 IDAHO CODE, TO CLARIFY THAT PUBLIC RECORDS REQUESTS REGARDING VIOLENT SEX-
9 UAL PREDATOR DETERMINATIONS SHALL BE MADE TO THE SEXUAL OFFENDER CLASSIFI-
10 CATION BOARD AND TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION
11 18-8317, IDAHO CODE, TO PROVIDE THAT A REFERRED OFFENDER WHOM THE BOARD
12 DEEMS IS APPROPRIATE FOR REVIEW FOR VIOLENT SEXUAL PREDATOR DESIGNATION
13 SHALL SUBMIT TO PSYCHOSEXUAL EVALUATION AND TO REVISE CRITERIA AND PROCE-
14 DURES; AMENDING SECTION 18-8319, IDAHO CODE, TO REVISE CRITERIA TO DETER-
15 MINE WHICH COURT IS APPROPRIATE TO HEAR CHALLENGES TO VIOLENT SEXUAL PRED-
16 ATOR DESIGNATIONS, AND TO PROVIDE FOR A DISTRICT COURT TO HEAR CHALLENGES
17 TO VIOLENT SEXUAL PREDATOR DESIGNATIONS IN CASES WHERE THE OFFENDER
18 INTENDS TO RESIDE IN ANOTHER STATE; AND DECLARING AN EMERGENCY.
19 Be It Enacted by the Legislature of the State of Idaho:
20 SECTION 1. That Section 18-8303, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 18-8303. DEFINITIONS. As used in this chapter:
23 (1) "Aggravated offense" means any of the following crimes as set forth
24 in section 18-8304, Idaho Code: 18-1508 (lewd conduct, when the victim is less
25 than twelve (12) years of age); 18-4003(d) (murder committed in the perpetra-
26 tion of rape); 18-6101 (rape, but excluding section 18-6101(1) where the vic-
27 tim is at least twelve (12) years of age or the defendant is eighteen (18)
28 years of age or younger); 18-6108 (male rape); and 18-6608 (forcible sexual
29 penetration by use of a foreign object).
30 (2) "Board" means the sexual offender classification board described in
31 section 18-8312, Idaho Code.
32 (3) "Central registry" means the registry of convicted sexual offenders
33 maintained by the Idaho state police pursuant to this chapter.
34 (4) "Certified evaluator" means either a psychiatrist licensed by this
35 state pursuant to chapter 18, title 54, Idaho Code, or a master's or doctoral
36 level mental health professional licensed by this state pursuant to chapter
37 23, chapter 32, or chapter 34, title 54, Idaho Code. Such person shall have by
38 education, experience and training, expertise in the assessment and treatment
39 of sexual offenders, and such person shall meet the qualifications and shall
40 be approved by the board to perform psychosexual evaluations in this state, as
41 described in section 18-8314, Idaho Code.
42 (5) "Department" means the Idaho state police.
43 (6) "Employed" means full-time or part-time employment exceeding ten (10)
2
1 consecutive working days or for an aggregate period exceeding thirty (30) days
2 in any calendar year, or any employment which involves counseling, coaching,
3 teaching, supervising or working with minors in any way regardless of the
4 period of employment, whether such employment is financially compensated,
5 volunteered or performed for the purpose of any government or education bene-
6 fit.
7 (7) "Incarceration" means committed to the custody of the Idaho depart-
8 ment of correction, but excluding cases where the court has retained jurisdic-
9 tion.
10 (8) "Offender" means an individual convicted of an offense listed and
11 described in section 18-8304, Idaho Code, or a substantially similar offense
12 under the laws of another state or in a federal, tribal or military court or
13 the court of another country.
14 (9) "Offense" means a sexual offense listed in section 18-8304, Idaho
15 Code.
16 (10) "Predatory" means actions directed at an individual who was selected
17 by the offender for the primary purpose of engaging in illegal sexual behav-
18 ior.
19 (11) "Psychosexual evaluation" means an evaluation which specifically
20 addresses sexual development, sexual deviancy, sexual history and risk of
21 reoffense as part of a comprehensive evaluation of an offender.
22 (12) "Recidivist" means an individual convicted two (2) or more times of
23 any offense requiring registration under this chapter.
24 (13) "Residence" means the offender's present place of abode.
25 (14) "Student" means a person who is enrolled on a full-time or part-time
26 basis, in any public or private educational institution, including any second-
27 ary school, trade or professional institution or institution of higher educa-
28 tion.
29 (15) "Violent sexual predator" means a person who has been convicted of an
30 offense listed in section 18-8314, Idaho Code, and who has been determined to
31 pose a high risk of committing an offense or engaging in predatory sexual con-
32 duct.
33 SECTION 2. That Section 18-8314, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 18-8314. POWERS AND DUTIES OF THE SEXUAL OFFENDER CLASSIFICATION BOARD.
36 (1) The board shall consider for review offenders scheduled for release from
37 incarceration, who are referred by the department of correction or parole com-
38 mission to determine whether the offender should be designated as a violent
39 sexual predator presenting a high risk of reoffense. Only offenders who were
40 sentenced and convicted for one (1) or more of the crimes set forth in sec-
41 tions 18-1506, 18-1506A, 18-1508, 18-4003(d), 18-4502, 18-6101 (but excluding
42 subsection 1. of such section when the offender is eighteen (18) years of age
43 or younger), 18-6108, 18-6602, 18-6605 and 18-6608, Idaho Code, or are
44 recidivists as defined in this chapter, for the purpose of determining whether
45 the offender should be designated as a violent sexual predator presenting a
46 high risk of reoffense are eligible for review by the board.
47 (2) The board shall consider for review offenders who were sentenced and
48 convicted for one (1) or more crimes enumerated in subsection (1) of this sec-
49 tion, and recidivists as defined in this chapter, who have been released under
50 supervision, for the purpose of determining whether the offender should be
51 designated as a violent sexual predator presenting a high risk of reoffense.
52 Such review shall be undertaken upon request of the district court having
53 jurisdiction over the offender on probation or of the parole commission if the
3
1 offender has been released on parole regardless of whether the offender has
2 been reviewed by the board prior to release from incarceration. For purposes
3 of seeking a board review pursuant to this subsection, the court or parole
4 commission may consider all relevant evidence including, but not limited to,
5 the probation or parole official's observations and opinions of these offend-
6 ers while under supervision, in light of the circumstances of the underlying
7 offense.
8 (3) The board shall consider for review offenders living in Idaho who
9 were sentenced and convicted for one (1) or more crimes enumerated in subsec-
10 tion (1) of this section, or substantially equivalent to those enumerated in
11 subsection (1) of this section and committed in another state, territory, com-
12 monwealth or other jurisdiction of the United States, including tribal courts
13 and military courts, and who have been released under federal or tribal court
14 supervision. Such review shall be for the purpose of determining whether the
15 offender should be designated as a violent sexual predator presenting a high
16 risk of reoffense, and shall be undertaken upon request of the federal or
17 tribal court having jurisdiction over the offender. For purposes of seeking a
18 board review pursuant to this subsection, the federal or tribal court may con-
19 sider all relevant evidence including, but not limited to, the probation
20 official's observations and opinions of these offenders while under supervi-
21 sion, in light of the circumstances of the underlying offense.
22 (4) The board shall by rule:
23 (a) Establish standards for psychosexual evaluations and the qualifica-
24 tions for certified evaluators performing evaluations pursuant to sections
25 18-8316 and 18-8317, Idaho Code.
26 (b) Set forth procedures for the approval, certification and quality
27 assurance of evaluators pursuant to this section.
28 (c) Establish a nonrefundable initial certification processing fee not to
29 exceed one hundred fifty dollars ($150) and a nonrefundable annual recer-
30 tification processing fee not to exceed one hundred fifty dollars ($150).
31 (45) The board shall establish guidelines to determine whether an
32 offender scheduled for release who meets the criteria of this section is a
33 violent sexual predator presenting a high risk of reoffense. The guidelines
34 shall be established with the assistance of sexual offender treatment and law
35 enforcement professionals who have, by education, experience or training,
36 expertise in the assessment and treatment of sexual offenders.
37 (a) Factors to be used in establishment of the guidelines must be sup-
38 ported in the sexual offender assessment field as criteria reasonably
39 related to the risk of reoffense and be objective criteria that can be
40 gathered in a consistent and reliable manner.
41 (b) The guidelines shall include, but are not limited to, the following
42 general categories for risk assessment: seriousness of the offense,
43 offense history, whether the offense was predatory, characteristics of the
44 offender, characteristics of the victim, the relationship of the offender
45 to the victim, the number of victims and the number of violations of each
46 victim.
47 (56) If the offender has indicated an intention to reoffend if released
48 into the community and the available record reveals credible evidence to sup-
49 port this finding, then the offender shall be deemed a violent sexual predator
50 regardless of application of the guidelines.
51 (67) Once the board has made its determination, it shall set forth writ-
52 ten findings which shall include:
53 (a) The board's risk assessment and the reasons upon which the risk
54 assessment was based; and
55 (b) The board's determination whether the offender should be designated
4
1 as a violent sexual predator and the reasons upon which the determination
2 was based.
3 (78) The board shall have authority to promulgate rules to carry out the
4 provisions of this chapter.
5 SECTION 3. That Section 18-8315, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 18-8315. COMPLIANCE WITH OPEN MEETING LAW -- EXECUTIVE SESSIONS AUTHO-
8 RIZED -- REPORT REQUIRED. (1) All meetings of the board shall be held in
9 accordance with the open meeting law as provided in chapter 23, title 67,
10 Idaho Code, except:
11 (a) Consideration of and discussions pertaining to documents not subject
12 to public disclosure, such as the presentence investigation report, cer-
13 tain medical or psychological reports and any reports, orders or other
14 documents sealed by court order;
15 (b) Deliberations and decisions concerning the classification of violent
16 sexual predators; and
17 (c) Votes of individual members in arriving at the classification deci-
18 sions shall not be made public, provided that the board shall maintain a
19 record of the votes of the individual members as required in subsection
20 (2) of this section.
21 (2) A written record of the vote to classify an offender as a violent
22 sexual predator by each board member in each case reviewed by that member
23 shall be produced by the board. In accordance with section 9-340B, Idaho Code,
24 the record produced by the board pursuant to this section shall be kept confi-
25 dential and privileged from disclosure, provided the record shall be made
26 available, upon request, to the governor and the chairman of the senate judi-
27 ciary and rules committee and the chairman of the house of representatives
28 judiciary, rules and administration committee, for all lawful purposes. Dis-
29 tribution of the report by a board member or an employee of the board to any
30 person not specifically listed in this section shall be a misdemeanor.
31 (3) Nothing contained in this section shall prevent any person from
32 obtaining the results of any classification action by the board without refer-
33 ence to the manner in which any member voted. This information can be
34 obtained through a public records request made to the sexual offender registry
35 maintained by the Idaho state police board.
36 (4) Nothing contained herein shall prevent the governor and chairman of
37 the senate judiciary and rules committee and the chairman of the house of rep-
38 resentatives judiciary, rules and administration committee from attending any
39 meeting including an executive session of the sexual offender classification
40 board.
41 SECTION 4. That Section 18-8317, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 18-8317. REQUIREMENT FOR PSYCHOSEXUAL EVALUATIONS UPON RELEASE. Every
44 offender convicted and incarcerated for any offense listed who meets the cri-
45 teria set forth in section 18-8314, Idaho Code, and either referred to the
46 board for psychosexual evaluation by the department of correction or has been
47 considered by the board and deemed appropriate for review for violent sexual
48 predator designation, shall submit to psychosexual evaluation. Every incarcer-
49 ated offender whose evaluation under section 18-8316, Idaho Code, states that
50 the offender is a probable violent sexual predator, shall submit to a
51 psychosexual evaluation and shall be reviewed by the board. The purpose of the
5
1 evaluation is for assessing risk of reoffense and to determine whether the
2 offender should be designated as a violent sexual predator. If the offender
3 is incarcerated,. Tthe evaluation is to be performed prior to release from
4 incarceration. for the purpose of assessing risk of reoffense and to determine
5 whether the offender should be designated as a violent sexual predator. These
6 evaluations shall be performed either by a certified evaluator as defined in
7 section 18-8303, Idaho Code, or a mental health professional employed by the
8 department of correction. The individual performing an evaluation under this
9 section shall not be a member of the sexual offender classification board at
10 the time the evaluation is performed. The individual performing the evaluation
11 shall be disqualified from providing any treatment ordered or attached as a
12 condition of parole, unless waived by the department of correction. An evalua-
13 tion conducted pursuant to this section shall be done in accordance with the
14 standards established by rule of the board pursuant to section 18-8314, Idaho
15 Code.
16 SECTION 5. That Section 18-8319, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 18-8319. NOTICE OF THE BOARD'S DETERMINATION. (1) Subject to the excep-
19 tion identified in section 18-8320, Idaho Code, the offender and the sheriff
20 of the county in which the offender resides or intends to reside upon release
21 shall be notified by the board that an offender has been designated as a vio-
22 lent sexual predator. This notice shall be in the form of the board's written
23 findings.
24 (2) The board shall serve a copy of its written findings to the offender
25 within ten (10) working days of the date that designation has been made. Ser-
26 vice of the written findings will be made upon the sheriff in accordance with
27 the offender's status.
28 (a) Notice shall be served upon the sheriff of the county in which the
29 offender resides within ten (10) working days of the date that designation
30 has been made, if the offender is not incarcerated.
31 (b) If the offender is awaiting release from incarceration, notice shall
32 be made upon the sheriff of the county in which the offender intends to
33 reside no less than seven (7) days prior to the offender's release.
34 (c) In the event the offender has not specified a residence plan prior to
35 his release, notice shall be made upon the sheriff of the county in which
36 the offender is released from incarceration, and upon the sheriff of the
37 county in which the offender initially resides and registers after
38 release.
39 (3) The board's notice to the offender shall also inform the offender:
40 (a) That the offender may challenge the designation as a violent sexual
41 predator by judicial review;
42 (b) That unless application is made to the applicable district court of
43 the county in which the offender resides if the offender has been released
44 from incarceration, or the county where the offender intends to reside if
45 the offender has not been released from incarceration, on or before the
46 date set forth in the notice, which shall be no more than fourteen (14)
47 calendar days after the notice is given, the offender shall be deemed to
48 have waived the right to challenge the designation;
49 (c) The applicable district court shall be determined as:
50 (i) The county in which the offender resides if the offender has
51 been released from incarceration; or
52 (ii) The county in which the offender intends to reside if the
53 offender has not been released from incarceration; or
6
1 (iii) If the offender intends to reside in another state, territory,
2 commonwealth or other jurisdiction of the United States immediately
3 upon release from incarceration, the county in which the offender was
4 most recently convicted of an offense as listed in section 18-8314,
5 Idaho Code;
6 (d) That the offender has the right to retain counsel and that counsel
7 will be provided by the court if the offender cannot afford counsel; and
8 (de) How such application should be made if counsel is not retained. If
9 counsel is not retained, a simple letter delivered to the courthouse in
10 the county of the offender's residence notice filed with the district
11 court in the applicable county, which encloses a copy of the board's writ-
12 ten findings and indicates the offender's objection or disagreement with
13 it, shall suffice.
14 (4) Upon determining that the offender has not received the board's
15 notice pursuant to this section, the board shall notify the sheriff of the
16 county in which the offender resides. This notice shall be in writing and
17 shall be delivered in a manner which will ensure receipt by the sheriff. Upon
18 request of the board, the sheriff may personally serve the offender with the
19 board's notice, or the sheriff may verify the offender's address and advise
20 the board in order that notice may once again be served. If, after the second
21 attempt to serve the offender, the board or sheriff determines that the
22 offender has evaded service or attempted to evade service, the matter shall be
23 referred for prosecution pursuant to section 18-8311(3), Idaho Code.
24 SECTION 6. An emergency existing therefor, which emergency is hereby
25 declared to exist, this act shall be in full force and effect on and after its
26 passage and approval.
STATEMENT OF PURPOSE
RS 13554C1
This proposed legislation will remedy two procedural deficiencies
related to violent predator designations.
Federal probation officials have expressed a desire to refer
federal probationers residing in Idaho to the Sexual Offender
Classification Board for review for violent sexual predator
designation. Interpretations of the existing law question whether,
or to what extent, such referrals can be effected.
Secondly, when an offender designated as a violent sexual predator
plans to parole to or reside in another state immediately upon
release from incarceration, a question is raised as to which court
has jurisdiction over his request for judicial review of the
designation. This proposal identifies the sentencing court for the
most recent sexual conviction as the appropriate court to hear such
appeals.
FISCAL IMPACT
No measurable impact on state or local funds is anticipated from
these changes.
Contact
Name: Kathy Baird
Phone: 658-2149
STATEMENT OF PURPOSE/FISCAL S 1263