MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary B

By: Representatives Miller, Gadd, Jennings, Montgomery

AN ACT TO ESTABLISH THE SEXUALLY VIOLENT PREDATOR LAW; TO PROVIDE THAT NOTICE IS TO BE GIVEN TO THE PROSECUTING ATTORNEY BEFORE RELEASE OF A PERSON DETERMINED TO BE A SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR THE FILING OF A PETITION FOR RELEASE BY THE OFFENDER; TO PROVIDE FOR JUDICIAL DETERMINATION ON THE PETITION FOR RELEASE; TO PROVIDE THAT A TRIAL WILL BE CONDUCTED TO DETERMINE IF A PERSON IS A SEXUALLY VIOLENT PREDATOR; TO ESTABLISH COMMITMENT PROCEDURES FOR A PERSON DETERMINED TO BE A SEXUALLY VIOLENT PREDATOR; TO ESTABLISH PROCEDURES TO BE FOLLOWED FOR THE FILING OF A PETITION FOR RELEASE UNDER THE AUTHORIZATION OF THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MENTAL HEALTH; TO PROVIDE THAT A SUBSEQUENT DISCHARGE PETITION MAY BE FILED BY AN OFFENDER; TO PROVIDE FOR THE RELEASE OF RELEVANT INFORMATION NECESSARY TO PROTECT THE PUBLIC; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The Legislature finds that a small but extremely dangerous group of sexually violent predators exists who do not have a mental disease or defect that renders them appropriate for the existing civil commitment laws under Sections 41-21-61 through 41-21-107, which are intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under Sections 41-21-61 through 41-21-107, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The Legislature further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing civil commitment laws are inadequate to address the risk to reoffend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement. The Legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the civil commitment laws. Therefore, a civil commitment procedure for the long-term care and treatment of the sexually violent predator is found to be necessary.

SECTION 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this act.

(a) "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.

(b) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

(c) "Predatory" means acts directed toward strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.

(d) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.

(e) "Sexually violent offense" means a conviction for a sex crime or any conviction for a felony offense in effect at any time prior to the effective date of this act, that is comparable to a sexually violent offense.

(f) "Agency with jurisdiction" means that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the Department of Corrections, the joint classification committee and the Department of Mental Health.

SECTION 3. (1) (a) When it appears that a person may meet the criteria of a sexually violent predator as defined in Section 1 of this act, the agency with jurisdiction shall refer the person in writing to the prosecuting attorney of the county where that person was charged or to the Attorney General, three (3) months before:

(i) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of persons who are returned to prison for no more than ninety (90) days as a result of revocation of post-release supervision, written notice shall be given as soon as practicable following the person's readmission to prison;

(ii) The anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile;

(iii) Release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to Section 99-13-11; or

(iv) Release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to Section 99-13-7.

(b) The agency shall inform the prosecutor of the following:

(i) The person's name, identifying factors, anticipated future residence and offense history; and

(ii) Documentation of institutional adjustment and any treatment received.

(2) This section applies to acts committed, on or after July 1, 1998.

(3) The agency, its employees and officials shall be immune from liability for any good-faith conduct under this section.

(4) In order to protect the public, relevant information and records which are otherwise confidential or privileged shall be released to the agency with jurisdiction, the prosecuting attorney or the attorney general to determine whether a person is or continues to be a sexually violent predator.

SECTION 4. (1) When it appears that the person presently confined may be a sexually violent predator and the prosecutor has determined that the person meets the definition of a sexually violent predator, the prosecuting attorney or the Attorney General may file a petition, within seventy-five (75) days of the date the prosecuting attorney or the Attorney General received the written notice by the agency of jurisdiction, alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation.

(2) Upon the filing of a petition, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If that determination is made, the judge shall direct that person be taken into custody.

(3) Within seventy-two (72) hours after a person is taken into custody, that person shall be provided with notice of, and an opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. At this hearing the court shall: (a) verify the detainee's identity; and (b) determine whether probable cause exists to believe that the person is a sexually violent predator. The state may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.

(4) At the probable cause hearing, the detained person shall have the following rights in addition to the rights previously specified: (a) to be represented by counsel; (b) to present evidence on his or her behalf; (c) to cross-examine witnesses who testify against him or her; and (d) to review and copy all petitions and reports in the court files.

(5) If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail, for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination.

SECTION 5. Within sixty (60) days after the filing of a petition pursuant to Section 4 of this act, the court shall conduct a trial to determine whether the person is a sexually violent predator. At all stages of the proceedings under this act, any person subject to this act shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist him or her. Whenever any person is subjected to an examination under this act, he or she may retain experts or professional persons to perform an examination on their behalf. When the person wishes to be examined by a qualified expert or professional person of his or her own choice, such examiner shall be permitted to have reasonable access to the person for the purpose of such examination, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. The person, the prosecuting attorney or Attorney General, or the judge shall have the right to demand that the trial be before a jury. If no demand is made, the trial shall be before the court.

SECTION 6. (1) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated as provided in Section 1 of this act, the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated as defined in Section 1 of this act. If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the Department of Mental Health in a secure facility for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large. Such control, care and treatment shall be provided at a facility operated by the Department of Mental Health. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct the person's release. Upon a mistrial, the court shall direct that the person be held at an appropriate secure facility, including, but not limited to, county, until another trial is conducted. Any subsequent trial following a mistrial shall be held within ninety (90) days of the previous trial, unless the subsequent trial is continued.

(2) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released pursuant to Sections 41-21-82 and 41-21-87, and his or her commitment is sought pursuant to subsection (1) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged, if the court did not enter a finding before dismissal under Sections 99-13-7 and 99-13-9. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section.

(3) The state shall comply with Section 41-21-67, while confining the person pursuant to this chapter. The facility shall not be located on the grounds of any state mental facility because these institutions are insufficiently secure for this population.

SECTION 7. Each person committed under this act shall have a current examination of his or her mental condition made at least once every year. The person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person. The periodic report shall be provided to the court that committed the person under this act.

SECTION 8. The involuntary detention or commitment of persons under this act shall conform to constitutional requirements for care and treatment.

SECTION 9. (1) If the Executive Director of the Department of Mental Health determines that the person's mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if released, the executive director shall authorize the person to petition the court for release. The petition shall be served upon the court and the prosecuting attorney. The court, upon receipt of the petition for release, shall within thirty (30) days order a hearing. The prosecuting attorney or the Attorney General, if requested by the county, shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of his or her choice. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney or Attorney General. The burden of proof shall be upon the prosecuting attorney or Attorney General to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and that if discharged is likely to engage in predatory acts of sexual violence.

(2) Nothing contained in this act shall prohibit the person from otherwise petitioning the court for discharge without the executive director's approval. The executive director shall provide the committed person with an annual written notice of the person's right to petition the court for release over the executive director's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the annual report. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person's condition has so changed that he or she is safe to be at large. The committed person shall have a right to have an attorney represent him or her at the show cause hearing but the person is not entitled to be present at the show cause hearing. If the court at the show cause hearing determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and is not likely to engage in predatory acts of sexual violence if discharged, then the court shall set a hearing on the issue. At the hearing, the committed persons shall be entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting attorney or the Attorney General if requested by the county shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The committed person shall have the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and if released is likely to engage in predatory acts of sexual violence.

SECTION 10. Nothing in this act shall prohibit a person from filing a petition for discharge pursuant to this act. However, if a person has previously filed a petition for discharge without the executive director's approval and the court determined, either upon review of the petition or following a hearing, that the petitioner's petition was frivolous or that the petitioner's condition had not so changed that he or she was safe to be at large, then the court shall deny the subsequent petition unless the petition contains facts upon which a court could find that the condition of the petitioner had so changed that a hearing is warranted. Upon receipt of a first or subsequent petition from committed persons without the executive director's approval, the court shall endeavor whenever possible to review the petition and determine if the petition is based upon frivolous grounds and if so shall deny the petition without a hearing.

SECTION 11. In addition to any other information required to be released under this act, before the release of a person committed under this act, the Director of the Department of Health shall give written notice of the release to any victim of the person's activities or crime who is alive and whose address is known to the director or, if the victim is deceased , to the victim's family, if the family's address is known to the director. Failure to notify shall not be a reason for postponement of release. Nothing in this section shall create a cause of action against the state or an employee of the state acting within the scope of the employee's employment as a result of the failure to notify pursuant to this action.

SECTION 12. The Department of Mental Health shall be responsible for all costs relating to the evaluation and treatment of persons committed to their custody under any provision of this act.

SECTION 13. If any provision of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application and, to this end, the provisions of this act are severable.

SECTION 14. This act shall take effect and be in force from and after July 1, 1998.