CHAPTER 152
HOUSE Substitute for SENATE BILL No. 27
An Act concerning the civil commitment of sexually violent
predators; amending K.S.A.
2002 Supp. 59-29a01, 59-29a04, 59-29a06, 59-29a07, 59-29a08 and
59-29a10 and re-
pealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2002 Supp.
59-29a01 is hereby amended to read
as follows: 59-29a01. The legislature finds that there exists an
extremely
dangerous group of sexually violent predators who have a mental
abnor-
mality or personality disorder and who are likely to engage in
repeat acts
of sexual violence if not treated for their mental abnormality or
personality
disorder. Because the existing civil commitment procedures under
K.S.A.
59-2901 et seq. and amendments thereto are inadequate to
address the
special needs of sexually violent predators and the risks they
present to
society, the legislature determines that a separate involuntary
civil com-
mitment process for the potentially long-term control, care and
treatment
of sexually violent predators is necessary. The legislature also
determines
that because of the nature of the mental abnormalities or
personality
disorders from which sexually violent predators suffer, and the
dangers
they present, it is necessary to house involuntarily committed
sexually
violent predators in an environment separate from persons
involuntarily
committed under K.S.A. 59-2901 et seq. and amendments
thereto. Not-
withstanding any other evidence of legislative intent, it is
hereby declared
that any time requirements set forth in K.S.A. 59-29a01 et seq.,
and
amendments thereto, either as originally enacted or as amended,
are in-
tended to be directory and not mandatory and serve as guidelines
for
conducting proceedings under K.S.A. 59-29a01 et seq., and
amendments
thereto.
Sec. 2. K.S.A. 2002 Supp. 59-29a04
is hereby amended to read as
follows: 59-29a04. (a) When it appears that the person presently
confined
may be a sexually violent predator and the prosecutor's review
committee
appointed as provided in subsection (e) of K.S.A. 59-29a03 and
amend-
ments thereto has determined that the person meets the definition
of a
sexually violent predator, the attorney general may file a
petition, within
75 days of the date the attorney general received the written
notice by
the agency of jurisdiction as provided in subsection (a) of K.S.A.
59-29a03
and amendments thereto, may file a petition in the county where
the
person was convicted of or charged with a sexually violent
offense alleging
that the person is a sexually violent predator and stating
sufficient facts
to support such allegation.
(b) The provisions of this section are
not jurisdictional, and failure to
comply with such provisions in no way prevents the attorney general
from
proceeding against a person otherwise subject to the provision of
K.S.A.
59-29a01 et seq., and amendments thereto.
Sec. 3. K.S.A. 2002 Supp. 59-29a06
is hereby amended to read as
follows: 59-29a06. (a) Within 60 days after the completion
of any hearing
held pursuant to K.S.A. 59-29a05 and amendments thereto, the
court
shall conduct a trial to determine whether the person is a sexually
violent
predator. The trial may be continued upon the 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 when the respondent will not be
sub-
stantially prejudiced.
(b) At all stages of the
proceedings under this act K.S.A. 59-29a01
et
seq., and amendments thereto, any person subject to
this act K.S.A. 59-
29a01 et seq., and amendments thereto, shall
be entitled to the assistance
of counsel, and if the person is indigent, the court shall appoint
counsel
to assist such person. Whenever any person is subjected to an
examination
under this act K.S.A. 59-29a01 et
seq., and amendments thereto, such
person may retain experts or professional persons to perform an
exami-
nation of such person's behalf. When the person wishes to be
examined
by a qualified expert or professional person of such person's 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, upon the person's request, shall determine whether the
services
are necessary and reasonable compensation for such services. If the
court
determines that the services are necessary and the expert or
professional
person's requested compensation for such services is reasonable,
the
court shall assist the person in obtaining an expert or
professional person
to perform an examination or participate in the trial on the
person's be-
half. The court shall approve payment for such services upon the
filing
of a certified claim for compensation supported by a written
statement
specifying the time expended, services rendered, expenses incurred
on
behalf of the person and compensation received in the same case or
for
the same services from any other source.
(c) The person, the attorney
general, or the judge shall have the right
to demand that the trial be before a jury. Such demand for the
trial to
be before a jury shall be filed, in writing, at least four days
prior to trial.
Number and selection of jurors shall be determined as provided in
K.S.A.
22-3403, and amendments thereto. If no demand is made, the trial
shall
be before the court.
(d) A jury shall consist of 12
jurors unless the parties agree in writing
with the approval of the court that the jury shall consist of any
number
of jurors less than 12 jurors. The person and the attorney general
shall
each have eight peremptory challenges, or in the case of a jury of
less
than 12 jurors, a proportionally equal number of peremptory
challenges.
(e) The provisions of this section are
not jurisdictional, and failure to
comply with such provisions in no way prevents the attorney
general from
proceeding against a person otherwise subject to the provision
of K.S.A.
59-29a01 et seq., and amendments thereto.
Sec. 4. K.S.A. 2002 Supp. 59-29a07
is hereby amended to read as
follows: 59-29a07. (a) The court or jury shall determine whether,
beyond
a reasonable doubt, the person is a sexually violent predator. If
such de-
termination that the person is a sexually violent predator is made
by a
jury, such determination shall be by unanimous verdict of such
jury. Such
determination may be appealed. If the court or jury determines that
the
person is a sexually violent predator, the person shall be
committed to
the custody of the secretary of social and rehabilitation services
for con-
trol, care and treatment until such time as the person's mental
abnor-
mality 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 social and rehabilitation
services.
(b) At all times, persons
committed for control, care and treatment
by the department of social and rehabilitation services pursuant to
this
act K.S.A. 59-29a01 et seq., and
amendments thereto, shall be kept in a
secure facility and such persons shall be segregated at all times
from any
other patient under the supervision of the secretary of social and
reha-
bilitation services and commencing June 1, 1995, such persons
committed
pursuant to this act K.S.A. 59-29a01 et
seq., and amendments thereto,
shall be kept in a facility or building separate from any other
patient under
the supervision of the secretary.
(c) The department of social and
rehabilitation services is authorized
to enter into an interagency agreement with the department of
correc-
tions for the confinement of such persons. Such persons who are in
the
confinement of the secretary of corrections pursuant to an
interagency
agreement shall be housed and managed separately from offenders in
the
custody of the secretary of corrections, and except for occasional
instances
of supervised incidental contact, shall be segregated from such
offenders.
(d) If any person while committed
to the custody of the secretary
pursuant to this act K.S.A. 59-29a01 et
seq., and amendments thereto,
shall be taken into custody by any law enforcement officer as
defined in
K.S.A. 21-3110 and amendments thereto pursuant to any parole
revoca-
tion proceeding or any arrest or conviction for a criminal offense
of any
nature, upon the person's release from the custody of any law
enforce-
ment officer, the person shall be returned to the custody of the
secretary
for further treatment pursuant to this act
K.S.A. 59-29a01 et seq., and
amendments thereto. During any such period of time a person
is not in
the actual custody or supervision of the secretary, the secretary
shall be
excused from the provisions of K.S.A. 59-29a08 and amendments
thereto,
with regard to providing that person an annual examination, annual
notice
and annual report to the court, except that the secretary shall
give notice
to the court as soon as reasonably possible after the taking of the
person
into custody that the person is no longer in treatment pursuant to
this act
K.S.A. 59-29a01 et seq., and amendments
thereto, and notice to the court
when the person is returned to the custody of the secretary for
further
treatment.
(e) 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.
(f) Upon a mistrial, the court
shall direct that the person be held at
an appropriate secure facility, including, but not limited to, a
county jail,
until another trial is conducted. Any subsequent trial following a
mistrial
shall be held within 90 days of the previous trial, unless such
subsequent
trial is continued as provided in K.S.A. 59-29a06 and
amendments
thereto.
(b) (g) If the
person charged with a sexually violent offense has been
found incompetent to stand trial, and is about to be released
pursuant to
K.S.A. 22-3305 and amendments thereto, and such person's
commitment
is sought pursuant to subsection (a), the court shall first hear
evidence
and determine whether the person did commit the act or acts
charged.
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 such
person's own behalf, the extent to which the evidence could be
recon-
structed 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, the court 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.
Sec. 5. K.S.A. 2002 Supp. 59-29a08
is hereby amended to read as
follows: 59-29a08. (a) Each person committed under this
act K.S.A. 59-
29a01 et seq., and amendments thereto, shall
have a current examination
of the person's mental condition made once every year. The
secretary
shall provide the committed person with an annual written notice
of the
person's right to petition the court for release over the
secretary's objec-
tion. The notice shall contain a waiver of rights. The secretary
shall also
forward the annual report, as well as the annual notice and
waiver form,
to the court that committed the person under K.S.A. 59-29a01
et seq., and
amendments thereto. The person may retain, or if the person
is indigent
and so requests the court may appoint a qualified professional
person to
examine such person, and such expert or professional person shall
have
access to all records concerning the person. The yearly
report shall be
provided to the court that committed the person under this
act. The court
that committed the person under K.S.A. 59-29a01 et
seq., and amend-
ments thereto, shall then conduct an annual review of
the status of the
committed person. Nothing contained in this act shall
prohibit the person
from otherwise petitioning the court for discharge at this
hearing. The
secretary of the department of social and rehabilitation
services shall pro-
vide the committed person with an annual written notice of
the person's
right to petition the court for release over the
secretary'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 person's mental
condition. The committed person shall have a right to have
an attorney
represent the person at the hearing but the person is not entitled
to be
present at the hearing.
(b) Nothing contained in K.S.A.
59-29a01 et seq., and amendments
thereto, shall prohibit the person from otherwise petitioning
the court for
discharge at this hearing.
(c) If the court at the 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 placed in transitional
release,
then the court shall set a hearing on the issue. At the hearing,
the com-
mitted person shall be entitled to be present and entitled to the
benefit
of all constitutional protections that were afforded the person at
the initial
commitment proceeding. The attorney general 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 also
have the right to have experts evaluate the person on the person's
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 placed in transitional release and if
transitionally released
is likely to engage in acts of sexual violence.
(c) (d) If, after
the hearing, the court or jury is convinced beyond a
reasonable doubt that the person is not appropriate for
transitional re-
lease, the court shall order that the person remain in secure
commitment.
Otherwise, the court shall order that the person be placed in
transitional
release.
(d) (e) If the
court determines that the person should be placed in
transitional release, the secretary shall transfer the person to
the transi-
tional release program. The secretary may contract for services to
be
provided in the transitional release program. During any period the
per-
son is in transitional release, that person shall comply with any
rules or
regulations the secretary may establish for this program and every
direc-
tive of the treatment staff of the transitional release
program.
(e) (f) At any
time during which the person is in the transitional re-
lease program and the treatment staff determines that the person
has
violated any rule, regulation or directive associated with the
transitional
release program, the treatment staff may remove the person from
the
transitional release program and return the person to the secure
com-
mitment facility, or may request the district court to issue an
emergency
ex parte order directing any law enforcement officer to take the
person
into custody and return the person to the secure commitment
facility.
Any such request may be made verbally or by telephone, but shall
be
followed in written or facsimile form delivered to the court by not
later
than 5:00 p.m. of the first day the district court is open for the
transaction
of business after the verbal or telephonic request was made.
(f) (g) Upon the
person being returned to the secure commitment
facility from the transitional release program, notice thereof
shall be given
by the secretary to the court. The court shall set the matter for a
hearing
within two working days of receipt of notice of the person's having
been
returned to the secure commitment facility and cause notice thereof
to
be given to the attorney general, the person and the secretary. The
at-
torney general shall have the burden of proof to show probable
cause
that the person violated conditions of transitional release. The
hearing
shall be to the court. At the conclusion of the hearing the court
shall issue
an order returning the person to the secure commitment facility or
to the
transitional release program, and may order such other further
conditions
with which the person must comply if the person is returned to the
tran-
sitional release program.
Sec. 6. K.S.A. 2002 Supp. 59-29a10
is hereby amended to read as
follows: 59-29a10. (a) If the secretary of the department
of social and
rehabilitation services determines that the
person's mental abnormality
or personality disorder has so changed that the person is not
likely to
commit predatory engage in repeat acts of
sexual violence if placed in
transitional release, the secretary shall authorize the person to
petition
the court for transitional release. The petition shall be served
upon the
court and the attorney general. The court, upon receipt of the
petition
for transitional release, shall order a hearing within 30 days. The
attorney
general shall represent the state, and shall have the right to have
the
petitioner examined by an expert or professional person of such
attorney's
choice. The hearing shall be before a jury if demanded by either
the
petitioner or the attorney general. The burden of proof shall be
upon the
attorney general to show beyond a reasonable doubt that the
petitioner's
mental abnormality or personality disorder remains such that the
peti-
tioner is not safe to be at large and that if placed in
transitional release is
likely to commit predatory engage in repeat
acts of sexual violence.
(b) If, after the hearing, the court is
convinced beyond a reasonable
doubt that the person is not appropriate for transitional release,
the court
shall order that the person remain in secure commitment. Otherwise,
the
court shall order that the person be placed in transitional
release.
(c) The provisions of subsections
(d), (e) and, (f) and
(g) of K.S.A.
59-29a08 and amendments thereto shall apply to a transitional
release
pursuant to this section.
New Sec. 7. 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 with-
out the invalid provisions or application and, to this end, the
provisions
of this act are severable.
Sec. 8. K.S.A. 2002 Supp. 59-29a01, 59-29a04,
59-29a06, 59-29a07,
59-29a08 and 59-29a10 are hereby repealed.
Sec. 9. This act shall take effect and be in force
from and after its
publication in the statute book.
Approved May 21, 2003.
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