SB 0783 - Fiscal Note

Fiscal Note - SB 0783 - Provides procedure for civil commitment of sexual predators

COMMITTEE ON LEGISLATIVE RESEARCH

OVERSIGHT DIVISION

FISCAL NOTE

L.R. NO. 1971-02

BILL NO. SB 783

SUBJECT: Civil Commitment of Sexual Predators

TYPE: Original

DATE: February 3, 1998

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FISCAL SUMMARY

ESTIMATED NET EFFECT ON STATE FUNDS
FUND AFFECTED	FY 1999	FY 2000	FY 2001
General Revenue	($4,397,157)	($3,315,342)	($7,244,845)
Total Estimated Net Effect on All State Funds	($4,397,157)	($3,315,342)	($7,244,845)

ESTIMATED NET EFFECT ON FEDERAL FUNDS
FUND AFFECTED	FY 1999	FY 2000	FY 2001
None
Total Estimated Net Effect on All Federal Funds	$0	$0	$0

ESTIMATED NET EFFECT ON LOCAL FUNDS
FUND AFFECTED	FY 1999	FY 2000	FY 2001
Local Government	(Unknown)	(Unknown)	(Unknown)

Numbers within parentheses: ( ) indicate costs or losses

This fiscal note contains 10 pages.

FISCAL ANALYSIS

ASSUMPTION

Officials from the Office of Attorney General assume they would request one additional Assistant Attorney General ($30,000) to implement this proposal.

Officials of the Department of Social Services assume this proposal would have no fiscal impact to their agency.

Officials from the Office of State Courts Administrator (CTS) indicated that each new case will involve a considerable of court time. However, the CTS did not believe the total number of cases would result in a significant impact on the workload of the courts.

Officials from the Office of State Public Defender (SPD) assume this proposal will fiscally impact the SPD. The SPD assumes that an average of 121 Probable Cause hearings will be held each year for the next three years. The CTS further assumes an average of 100 additional trials will be held each year and an average of 121 annual hearings will take place each year. The SPD calculates that this additional caseload will require 2 additional attorneys and .75 FTE for a paralegal and .5 FTE for a legal secretary at a total cost of $135,346 for FY 99. Future costs would total $140,329 and $143,932 for FY 00 and FY 01, respectively. All costs were allocated to the General Revenue Fund, based on prior funding sources.

SPD officials further assumed portions of the proposal would allow for the defendant's independent evaluation (other than Mental Health). SPD officials assumed that Department of Mental Health would be responsible for paying for those costs. If this proposal intends for SPD to be responsible for the cost for the defendant's independent evaluation, SPD officials estimate the cost at $2,500 per evaluation. This would add $625,000 to SPD's cost projections ($2,500 x 250 defendants = $625,000).

Oversight assumes the costs for independent psychiatric evaluations would be paid for by the State Public Defender in the course of representing their clients.

Officials of the Department of Corrections (DOC) assume this proposal would result in the civil confinement within a secure institutional setting of persons who have been determined to be at risk of performing sexually predatory acts. This would increase the population growth predicted by the DOC for institutional confinements.

ASSUMPTION (continued)

The DOC assumes that for each person confined under this proposal, an additional maximum security bed would need to be constructed at the cost of $48,500. Using current construction time lines, DOC officials assume that a bed would take at least two years to construct. These cost projections assume double bunking of occupants. Total FY99 construction cost would be $2,425,000.

DOC officials assume their department would house persons committed under this proposal in 50-bed units. Based on current annual failures of those required to participate in the Missouri Sexual Offender Program (MOSOP) whose offenses are referenced in this proposal, the DOC predicts that an additional 25 persons per year would be confined. In addition to persons presently incarcerated who could be civilly committed, persons found to be not guilty by reason of insanity of a sexually violent offense and persons charged with a sexually violent offense and found incompetent to stand trial could be confined under this proposal. The DOC has no reliable means to predict the additional impact of such persons on confinement resources.

DOC officials assumed in this response that the Missouri Department of Mental Health, through an interagency agreement, would provide for the care and treatment of all persons confined under this proposal. This would include daily food, clothing, health care, and needed treatment.

DOC officials also assumed that their department would only be responsible for the capital construction, ongoing utilities, maintenance, and perimeter security of the housing unit for these persons. Providing 24 hour per day custody supervision of the unit's perimeter would require

5.27 Correctional Officer I's and 40 hour per week supervision of the Officers equal to 1.34 Correctional Officer II's. Services for 1.00 Maintenance Worker I would also be requested. FY99 salary and expense and equipment costs would be $183,655 per 50-bed unit. The annual utilities/maintenance cost for the unit would be equal to $425.00 per person or $21,250 per unit.

Oversight assumes for purposes of this fiscal note that commitment of sexual predators should result in savings to the Board of Probation and Parole (Board). Supervision by the Board is an average per diem of $2.47 per offender, per day. Assuming 25 sexually violent predator offenders would be confined as a result of this proposal annually, Oversight estimated the savings to the Board at $18,775 in FY99, $46,881 in FY2000 and $73,134 in FY2001.

Officials of the Department of Mental Health (DMH) based their assumptions on data which is available from the states of Arizona, Minnesota and Wisconsin. Wisconsin has a state population similar to Missouri (around 5 million). The Wisconsin Sex Predator law was enacted on June 2, 1994. Wisconsin now has 110 individuals committed as sexual predators. Minnesota, with a state

ASSUMPTION (continued)

population less than Missouri (4.4 million) has had around 25 sexual predators committed each year for the last two years. Arizona, with a state population less than Missouri (3.7 million), has had 12 commitments in the 4 months since the first commitment was received in September 1997.

DMH officials assume data from DOC indicates there are currently around 2,405 individuals incarcerated for sexually violent offenses. An average of 189 DOC inmates convicted of sexually violent offenses would be ready for the Missouri Sexual Offender Program (MOSOP) in each of the next five years. Using current DOC predictions, 75 inmates convicted of sexually violent offenses will fail MOSOP in each of the next 5 years. DMH officials assumed that most of the 75 would be referred to DMH for evaluation as to sexual predator status. Of these 75, it is not known how many would ultimately be adjudicated as Sexual Predators and committed to the custody of the DMH. However, DMH officials assume that 20 - 30 persons per year would be adjudicated as Sexual Predators.

DMH officials assume 25 sexual predators would be committed per year to the custody of the DMH which would be consistent with the experience of the states of Arizona, Minnesota and Wisconsin, and with projections using Missouri DOC data. Treatment would be provided at a level consistent with the treatment provided by the DMH for other individuals who are civilly committed. DMH officials stated that expense/equipment costs were based on historical budget requests with similar needs.

To implement this proposal DMH officials assume they would request the following 47.40 FTEs for FY99: .40 Board Sr. Psychiatrist ($130,322); one (1) Psychologist III ($52,572); two (2) Psychologist I's ($37,284); three (3) RN III for day shift ($34,296); three (3) RN III's for shift differential ($37,284); one (1) Social Work Practitioner II ($29,172); twenty (20) Security Aide I's ($19,908); three (3) Security Aide II's ($21,408); one (1) Substance Abuse Counselor III ($26,928); one (1) Recreational Therapist I ($23,052); two (2) Activity Aide II's ($18,024); one (1) Psychometrist ($19,908); one (1) Clerk Typist ($16,776); one (1) Account Clerk I ($15,648); one (1) Auto Driver ($16,776); one (1) Custodial Worker ($14,160); four (4) Food Service Help I ($14,160); and one (1) Food Service Help II ($15,648).

In FY's 2000 & 2001 DMH officials assume they would request the following 40.40 new FTEs in each of those years: .40 Board Sr. Psychiatrist ($130,322); one (1) Psychologist III ($52,572); two (2) Psychologist I's ($37,284); three (3) RN III for day shift ($34,296); three (3) RN III's for shift differential ($37,284); one (1) Social Work Practitioner II ($29,172); twenty (20) Security Aide I's ($19,908); three (3) Security Aide II's ($21,408); one (1) Substance Abuse Counselor III ($26,928); one (1) Recreational Therapist I ($23,052); two (2) Activity Aide II's ($18,024); one

ASSUMPTION (continued)

(1) Psychometrist ($19,908); one (1) Clerk Typist ($16,776); one (1) Account Clerk I ($15,648); one (1) Auto Driver ($16,776); one (1) Custodial Worker ($14,160); four (4) Food Service Help I ($14,160); and one (1) Food Service Help II ($15,648).

In calculating staffing per ward and expense and equipment costs (one-time and ongoing), DMH officials assumed that DOC would provide the building, all physical plant costs and all costs related to external security, with DMH funding treatment staff and direct costs related to client care.

Total costs estimated by DMH would be $1,581,783 in FY99, $3,222,543 in FY2000 and $4,785,545 in FY2001.

Oversight spoke with officials from the State of Kansas who have a program in place similar to this proposal. Actual treatment cost in FY97 for their civil commitment program was $546,435 for 14 sexual offenders. This would calculate to a per diem of $106.94 per offender. Kansas officials estimate that they will civilly commit an additional two offenders per month, or 24 annually.

In a similar proposal from a previous legislative session, using the FY96 budget request by DMH for Fulton State Hospital, Oversight estimated DMH's per diem costs to be $102.72 per day. Oversight applied a 4% inflation rate per year to estimate per diem of $115.55 for FY99, $120.17 for FY2000 and $124.97 for FY 2001. Using those projected per diem, Oversight estimated the annual cost to DMH for the treatment would be $878,280 in FY99, $2,193,064 in

FY2000 and $3,421,179 in FY2001. Oversight has shown one-time equipment costs in addition to the per diem estimates.

In response to a similar proposal officials of the Office of Prosecution Services (OPS) assumed the proposal would require prosecutors represent the state in civil commitment proceedings for sexually violent offenders. OPS officials stated that is unknown how many of these proceedings there would be in any given year, but assumes that there could be some increased costs to prosecutors as a whole. However, OPS officials would not expect any one prosecutor's office to experience a large number of these cases and therefore the fiscal impact to any one office should be minimal.

Officials of the OPS spoke with the Cole County Prosecutor's office. The Cole County Prosecutor indicated that fiscal impact to any one prosecutor's office should be minimal and could be handled with existing staff.

ASSUMPTION (continued)

Officials of the Greene County Prosecutor's office assumed that costs to their office would be unknown. The costs would be dependent on the number of cases, the amount of expert testimony needed, and the number of jury trials requested as a result of this proposal.

Oversight assumes that prosecutors as a whole could experience increased costs as a result of this proposal; however, the cases would be spread throughout the state. Oversight assumes these hearings would become part of the regular duties of prosecuting attorneys and any increased costs would be addressed through their city or county budget processes.

FISCAL IMPACT - State Government	FY 1999	FY 2000	FY 2001
	(10 Mo.)
GENERAL REVENUE FUND
Savings-Department of Corrections (DOC)
Reduced Probation and Parole supervision	$18,775	$46,881	$73,134
Cost-Department of Corrections (DOC)
Personal Service (7.61, 7.61, 15.22 FTE)	($142,482)	($175,322)	($359,410)
Fringe Benefits	(39,938)	(49,143)	(100,743)
Expense and Equipment	(28,685)	(31,952)	(68,666)
Capital Improvement	(2,425,000)	0	(2,425,000)
Total Cost - DOC	($2,636,105)	($256,417)	($2,953,819)
Costs-State Public Defender
Personal Service (3.25 FTE)	($77,371)	($95,205)	($97,585)
Fringe Benefits	(21,687)	(26,686)	(27,353)
Expense and Equipment	(29,205)	(9,714)	(10,005)
Contract expenses	(520,625)	(643,750)	(663,062)
Total Costs-State Public Defender	($648,888)	($775,355)	($798,005)
Cost-Department of Mental Health (DMH)
per diem costs	($878,280)	($2,193,064)	($3,421,179)
one-time equipment and expenses	(202,083)	(85,606)	(91,839)
Total Cost-DMH	($1,080,363)	($2,278,670)	($3,513,018)
FISCAL IMPACT - State Government	FY 1999	FY 2000	FY 2001
(continued)	(10 Mo.)
GENERAL REVENUE FUND (continued)
Costs-Office of the Attorney General (AGO)
Personal Service (1 FTE)	($25,000)	($30,750)	($31,519)
Fringe Benefits	(7,008)	(8,619)	(8,835)
Expense and Equipment	(18,667)	(12,412)	(12,784)
Total Cost-AGO	($50,576)	($51,781)	($53,137)
ESTIMATED NET EFFECT TO
GENERAL REVENUE FUND	($4,397,157)	($3,315,342)	($7,244,845)
FISCAL IMPACT - Local Government	FY 1999	FY 2000	FY 2001
	(10 Mo.)
Costs - Cities & Counties
Sexually violent predator commitment cases	(Unknown)	(Unknown)	(Unknown)
FISCAL IMPACT - Small Business

No direct fiscal impact to small businesses would be expected as a result of this proposal.

DESCRIPTION

This proposal would allow the civil commitment of sexual predators. The proposal defines a sexual offense as 1) forcible rape, statutory rape in the first degree, forcible sodomy, statutory sodomy in the first degree, child molestation in the first degree when classified as a B felony, or sexual abuse; 2) any federal or out-of-state conviction for a felony offense that would be an enumerated sexual offense in Missouri; murder in the first or second degree, assault in the first or second degree, assault of a child in the first or second degree, kidnapping in the first or second degree, which at the time of trial has been determined beyond a reasonable doubt to have been sexually motivated; or an attempt or conspiracy to commit any of the enumerated sexual offenses. A sexual predator is a person who has been convicted or charged with a sexual offense and who suffers from a mental abnormality which makes the person likely to engage in sexual offenses in the future.

DESCRIPTION (continued)

The agency with jurisdiction, which includes the Department of Mental Health or Department of Corrections, would be required to refer the name of a sexually violent predator to the Attorney General. Notice would be provided one hundred and eighty days before the person's anticipated release from confinement, or at any time prior to release of a person who committed a sexual offense as a juvenile, a person found not guilty of a sexual offense by reason of insanity, or a person who was committed as a criminal sexual psychopath. The notice would include the person's name, anticipated future residence, offense history, and institutional treatment. The agency and its employees would be immune from liability for any good-faith conduct in so reporting.

The Directors of the Department of Mental Health and the Department of Corrections would jointly establish a multidisciplinary team to review the person's records and assess, within thirty days of receiving notice, whether the person meets the definition of a sexual predator. The team would be required to notify the Attorney General of its assessment.

The Attorney General would be required to appoint a five-member prosecutor's review committee, composed of a cross-section of prosecutors from urban and rural counties. The team would review the person's records and assist the Attorney General in the determination of whether the person meets the definition of a sexual predator. The committee would be required to make such a determination by a majority vote.

The prosecutor or Attorney General could file a petition within seventy-five days after the receipt of the notice, alleging that the person is a sexual predator if such a determination has been made. The judge would be required to determine if probable cause exists to believe that the person is a sexual predator, and, if so, would direct that the person be transferred to an appropriate facility for evaluation. Within forty-five days after the filing of a petition, the court would be required to conduct a trial to determine beyond a reasonable doubt whether the person was a sexual predator. The person would be entitled to representation, and counsel would be appointed if the person was indigent. The person would also be allowed to retain experts to perform an examination on his own behalf. Either party could demand a trial by jury.

If the court or jury determines the person was a sexual predator, the person would 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 has changed so that he is not likely to commit such an offense in the future. The Department of Mental Health could enter into an interagency agreement with the Department of Corrections for the confinement of such persons. If the court or jury was not convinced beyond a reasonable doubt that the person was a sexual predator, the person would be released.

DESCRIPTION (continued)

Each person committed would have a yearly examination of his mental condition. The person would have a right to retain a qualified expert or to have appointed for him. A periodic report would be provided to the court. The person's commitment must conform to constitutional requirements for care and treatment.

If the Director of the Department of Mental Health determined that the person was not likely to engage in predatory acts if released, the Director would authorize the person to petition the court for release. The petition would be served upon the Attorney General and the court. The court would order a hearing within forty-five days after receipt of the petition. The Attorney General would have the right to conduct an examination of the person. The person would not have the right to a trial by jury. The burden of proof is on the state to show beyond a reasonable doubt that the petitioner's mental abnormality remains so that the person is likely to commit a sexual offense if released.

The person could also petition the court for release without the Director's approval, which must be filed with a notice of waiver of rights and the annual report to the court. The court would set a show cause hearing, at which the person has no right to be present but could be represented by counsel. If the court found probable cause to believe the person was no longer likely to commit a sexual offense, a full hearing on the matter would be ordered. The court would deny a person's petition if the person had previously filed a petition for discharge without the Director's approval and the court determined that the petition was frivolous or denied the petition. Prior to any release, the Director of the Department of Mental Health would be required to provide written notice to any victim of the person's activities, or if deceased, to the victim's family.

The prosecutor would be required to file a special allegation of sexual motivation within ten days after arraignment for any crime except sexual offenses as defined in Chapter 566, RSMo. The state would be required to prove sexual motivation beyond a reasonable doubt, and the court or jury would enter a special finding as to whether the offense was sexually motivated. The special allegation would not be withdrawn without approval of the court.

This legislation is not federally mandated, would not duplicate any other program and would require additional capital improvements or rental space.

SOURCES OF INFORMATION

Department of Mental Health

Department of Corrections

Office of State Courts Administrator

Office of Attorney General

Office of State Public Defender

Office of Prosecution Services

St. Louis County Prosecuting Attorney

Greene County Prosecuting Attorney

NOT RESPONDING - Lawrence County Prosecuting Attorney and Jackson County Prosecuting Attorney

Jeanne Jarrett, CPA

Director

February 3, 1998