H. B. 4175
(By Delegates Miley, Wooton, Barker,
Moore, Shook, Ferro, Ellem and Schoen)
[Introduced January 26, 2010; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §15-12-2 and §15-12-5 of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§62-12-3 of said code, all relating to amending the community
notification and disclosure provisions of the Sex Offender
Registration Act; development of a risk assessment scale;
establishment of end-of-confinement review committees;
determining risk of reoffending; defining risk levels;
community notification for various risk levels; timing of
notification; length of community notification; communicating
the risk level determination; other information communicated
to law enforcement; notice of an offender's release;
reassessment of the risk level determination; administrative
review of risk level assessment; and offender request for
reassessment of risk level.
Be it enacted by the Legislature of West Virginia:
That §15-12-2 and §15-12-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and §62-12-3 of said code be
amended and reenacted, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively
and prospectively.
(b) Any person who has been convicted of an offense or an
attempted offense or has been found not guilty by reason of mental
illness, mental retardation or addiction of an offense under any of
the following provisions of chapter sixty-one of this code or under
a statutory provision of another state, the United States Code or
the Uniform Code of Military Justice which requires proof of the
same essential elements shall register as set forth in subsection
(d) of this section and according to the internal management rules
promulgated by the superintendent under authority of section
twenty-five, article two of this chapter:
(1) Article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed by an Act of the
Legislature during the year 2000 legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two;
(5) Sections six, seven, twelve and thirteen, article eight;
or
(6) Section fourteen-b, article three-c, as it relates to
violations of those provisions of chapter sixty-one listed in this
subsection.
(c) Any person who has been convicted of a criminal offense
and the sentencing judge made a written finding that the offense
was sexually motivated shall also register as set forth in this
article.
(d) Persons required to register under the provisions of this
article shall register in person at the West Virginia State Police
detachment in the county of his or her residence, the county in
which he or she owns or leases habitable real property that he or
she visits regularly, the county of his or her place of employment
or occupation and the county in which he or she attends school or
a training facility, and in doing so, provide or cooperate in
providing, at a minimum, the following when registering:
(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or
resides at the time of registration, the address of any habitable
real property owned or leased by the registrant that he or she
regularly visits:
Provided, That a post office box may not be
provided in lieu of a physical residential address, the name and address of the registrant's employer or place of occupation at the
time of registration, the names and addresses of any anticipated
future employers or places of occupation, the name and address of
any school or training facility the registrant is attending at the
time of registration and the names and addresses of any schools or
training facilities the registrant expects to attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of
registration;
(5) A brief description of the crime or crimes for which the
registrant was convicted;
(6) Fingerprints;
(7) Information related to any motor vehicle, trailer or motor
home owned or regularly operated by a registrant, including vehicle
make, model, color and license plate number:
Provided, That for
the purposes of this article, the term "trailer"
shall mean means
travel trailer, fold-down camping trailer and house trailer as
those terms are defined in section one, article one, chapter
seventeen-a of this code;
(8) Information relating to any Internet accounts the
registrant has and the screen names, user names or aliases the
registrant uses on the Internet; and
(9) Information related to any telephone or electronic paging
device numbers that the registrant has or uses, including, but not limited to, residential, work and mobile telephone numbers.
(e) (1) On the date that any person convicted or found not
guilty by reason of mental illness, mental retardation or addiction
of any of the crimes listed in subsection (b) of this section,
hereinafter referred to as a "qualifying offense", including those
persons who are continuing under some post-conviction supervisory
status, are released, granted probation or a suspended sentence,
released on parole, probation, home detention, work release,
conditional release or any other release from confinement, the
Commissioner of Corrections, regional jail administrator, city
official or sheriff operating a jail or Secretary of the Department
of Health and Human Resources who releases the person and any
parole or probation officer who releases the person or supervises
the person following the release, shall obtain all information
required by subsection (d) of this section prior to the release of
the person, inform the person of his or her duty to register and
send written notice of the release of the person to the State
Police within three business days of receiving the information.
The notice must include the information required by said
subsection. Any person having a duty to register for a qualifying
offense shall register upon conviction, unless that person is
confined or incarcerated, in which case he or she shall register
within three business days of release, transfer or other change in
disposition status.
(2) Notwithstanding any provision of this article to the
contrary, a court of this state shall, upon presiding over a
criminal matter resulting in conviction or a finding of not guilty
by reason of mental illness, mental retardation or addiction of a
qualifying offense, cause, within seventy-two hours of entry of the
commitment or sentencing order, the transmittal to the sex offender
registry for inclusion in the registry all information required for
registration by a registrant as well as the following
nonidentifying information regarding the victim or victims:
(A) His or her sex;
(B) His or her age at the time of the offense; and
(C) The relationship between the victim and the perpetrator.
The provisions of this paragraph do not relieve a person
required to register pursuant to this section from complying with
any provision of this article.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental
abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by
reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of
this section, the person shall sign in open court a statement
acknowledging that he or she understands the requirements imposed
by this article. The court shall inform the person so convicted of
the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his or
her counsel that the defendant has received notice of the
provisions of this article and that the defendant understands the
provisions. The statement, when signed and witnessed, constitutes
prima facie evidence that the person had knowledge of the
requirements of this article. Upon completion of the statement,
the court shall provide a copy to the registry. Persons who have
not signed a statement under the provisions of this subsection and
who are subject to the registration requirements of this article
must be informed of the requirement by the State Police whenever
the State Police obtain information that the person is subject to
registration requirements.
(h) The State Police shall maintain a central registry of all
persons who register under this article and shall release
information only as provided in this article. The information
required to be made public by the State Police by
subdivision (2),
subsection
(b) (f), section five of this article is to be
accessible through the Internet. No information relating to
telephone or electronic paging device numbers a registrant has or uses may be released through the Internet.
(i) For the purpose of this article, "sexually violent
offense" means:
(1) Sexual assault in the first degree as set forth in section
three, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction;
(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code or of
a similar provision in another state, federal or military
jurisdiction;
(3) Sexual assault of a spouse as set forth in the former
provisions of section six, article eight-b, chapter sixty-one of
this code, which was repealed by an Act of the Legislature during
the two thousand legislative session, or of a similar provision in
another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction.
(j) For purposes of this article, the term "sexually
motivated" means that one of the purposes for which a person
committed the crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent predator" means a person who has been convicted or found not guilty
by reason of mental illness, mental retardation or addiction of a
sexually violent offense and who suffers from a mental abnormality
or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.
(l) For purposes of this article, the term "mental
abnormality" means a congenital or acquired condition of a person,
that affects the emotional or volitional capacity of the person in
a manner that predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to the
health and safety of other persons.
(m) For purposes of this article, the term "predatory act"
means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.
(n) For the purposes of this article, the term "business
days", means days exclusive of Saturdays, Sundays and legal
holidays as defined in section one, article two, chapter two of
this code.
§15-12-5. Distribution and disclosure of information.
(a) Within five business days after receiving any notification
as described in this article, the State Police shall distribute a
copy of the notification statement to:
(1) The supervisor of each county and municipal law-enforcement office and any campus police department in the city and
county where the registrant resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends
school or a training facility;
(2) The county superintendent of schools in each county where
the registrant resides, owns or leases habitable real property that
he or she regularly visits, is employed or attends school or a
training facility;
(3) The child protective services office charged with
investigating allegations of child abuse or neglect in the county
where the registrant resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends
school or a training facility;
(4) All community organizations or religious organizations
which regularly provide services to youths in the county where the
registrant resides, owns or leases habitable real property that he
or she regularly visits, is employed or attends school or a
training facility;
(5) Individuals and organizations which provide day care
services for youths or day care, residential or respite care, or
other supportive services for mentally or physically incapacitated
or infirm persons in the county where the registrant resides, owns
or leases habitable real property that he or she regularly visits,
is employed or attends school or a training facility; and
(6) The Federal Bureau of Investigation (FBI).
(a) As used in this section:
(1) "Commissioner" means the Commissioner of the Division of
Corrections;
(2) "Confinement" means confinement in a state correctional
facility or a state treatment facility;
(3) "Executive director" means the Executive Director,
Regional Jail and Correctional Facility Authority;
(4) "Immediate household" means any and all individuals who
live in the same household as the offender;
(5) "Law-enforcement agency" means the law-enforcement agency
having primary jurisdiction over the location where the offender
expects to reside upon release;
(6) "Authority" means the Regional Jail and Correctional
Facilities Authority;
(7) "Residential facility" means a facility that is licensed
as a residential program by the Secretary of Health and Human
Resources under the provisions of article five-c, five-d or five-e,
chapter sixteen of this code whose staff are trained in the
supervision of sex offenders;
(8) "Secretary" means the Secretary of the Department of
Health and Human Resources; and
(9) "Sex offender" and "offender" mean a person who is
required to register as a sex offender under section two of this article.
(b) By July 1, 2010, the Secretary of the Department of
Military Affairs and Public Safety, shall develop a risk assessment
scale which assigns weights to the various risk factors listed in
subdivision(7), subsection(c) of this section, and specifies the
risk level to which offenders with various risk assessment scores
shall be assigned. In developing this scale, the Secretary of the
Department of Military Affairs and Public Safety shall consult with
prosecuting attorneys, treatment professionals, law-enforcement
officials, and probation and parole officers.
(c) (1) the Commissioner of the Division of Corrections, the
Executive Director of the Regional Jail and Correctional Facility
Authority and the Secretary of the Heath and Human Resources shall
establish and administer end-of-confinement review committees at
each: (A) State correctional facility; (B) regional jail facility;
and (C) state treatment facility where sex offenders are confined.
The committees shall assess on a case-by-case basis the public risk
posed by sex offenders who are about to be released from
confinement.
(2) Each committee is a standing committee and shall consist
of the following members appointed by the commissioner, executive
director or secretary:
(A) The chief executive officer or head of the correctional
facility, regional jail or treatment facility where the offender is currently confined, or that person's designee;
(B) A member of the State Police;
(C) A treatment professional who is trained in the assessment
of sex offenders;
(D) A caseworker experienced in supervising sex offenders; and
(E) A victim's services professional.
Members of the committee, other than the facility's chief
executive officer or head, shall be appointed by the commissioner,
executive director or secretary to two-year terms. The chief
executive officer or head of the facility or designee shall act as
chair of the committee and shall use the facility's staff, as
needed, to administer the committee, obtain necessary information
from outside sources, and prepare risk assessment reports on
offenders.
(3) The committee shall have access to the following data on
a sex offender only for the purposes of its assessment and to
defend the committee's risk assessment determination upon
administrative review under this section:
(A) Private medical data that relate to medical treatment of
the offender;
(B) Private and confidential court services data;
(C) Private and confidential corrections data; and
(D) Private criminal history data.
Data collected and maintained by the committee under this subdivision may not be disclosed outside the committee. The sex
offender has access to data on the offender collected and
maintained by the committee, unless the data are confidential data
received under this subdivision.
(4) (A) Except as otherwise provided in paragraphs (B), (C),
and (D) of this subdivision, at least ninety days before a sex
offender is to be released from confinement, the commissioner,
executive director or secretary shall convene the appropriate end-
of-confinement review committee for the purpose of assessing the
risk presented by the offender and determining the risk level to
which the offender shall be assigned under subdivision (5). The
offender and the law-enforcement agency that was responsible for
the charge resulting in confinement shall be notified of the time
and place of the committee's meeting. The offender has a right to
be present and be heard at the meeting. The law-enforcement agency
may provide material in writing that is relevant to the offender's
risk level to the chair of the committee. The committee shall use
the risk factors described in subdivision (7) of this section and
the risk assessment scale developed under subsection (b) of this
section to determine the offender's risk assessment score and risk
level. Offenders scheduled for release from confinement shall be
assessed by the committee established at the facility from which
the offender is to be released.
(B) If an offender is received for confinement in a facility with less than ninety days remaining in the offender's term of
confinement, the offender's risk shall be assessed at the first
regularly scheduled end of confinement review committee that
convenes after the appropriate documentation for the risk
assessment is assembled by the committee. The commissioner,
executive director or secretary shall make reasonable efforts to
ensure that offender's risk is assessed and a risk level is
assigned or reassigned at least thirty days before the offender's
release date.
(C) If the offender is subject to a mandatory life sentence,
the commissioner shall convene the appropriate end-of-confinement
review committee at least nine months before the offender's minimum
term of imprisonment has been served. If the offender is received
for confinement in a facility with less than nine months remaining
before the offender's minimum term of imprisonment has been served,
the committee shall conform its procedures to those outlined in
paragraph (B) of this subdivision to the extent practicable.
(D) If the offender is granted supervised release, the
commissioner shall notify the appropriate end-of-confinement review
committee that it needs to review the offender's previously
determined risk level at its next regularly scheduled meeting. The
commissioner shall make reasonable efforts to ensure that the
offender's earlier risk level determination is reviewed and the
risk level is confirmed or reassigned at least sixty days before the offender's release date. The committee shall give the report
to the offender and to the law-enforcement agency at least sixty
days before an offender is released from confinement.
(5) The committee shall assign to risk level I a sex offender
whose risk assessment score indicates a low risk of reoffense. The
committee shall assign to risk level II an offender whose risk
assessment score indicates a moderate risk of reoffense. The
committee shall assign to risk level III an offender whose risk
assessment score indicates a high risk of reoffense.
(6) Before the sex offender is released from confinement, the
committee shall prepare a risk assessment report which specifies
the risk level to which the offender has been assigned and the
reasons underlying the committee's risk assessment decision.
Except for an offender subject to a mandatory life sentence, who
has not been granted supervised release, the committee shall give
the report to the offender and to the State Police at least sixty
days before an offender is released from confinement. If the
offender is subject to a mandatory life sentence and has not yet
served the entire minimum term of imprisonment, the committee shall
give the report to the offender and to the commissioner at least
six months before the offender is first eligible for release. If
the risk assessment is performed under the circumstances described
in paragraph(B),subdivision(4) of this section, the report shall
be given to the offender and the State Police as soon as it is available. The committee also shall inform the offender of the
availability of review under subsection (f) of this section.
(7) As used in this subsection, "risk factors" includes, but
is not limited to, the following factors:
(A) The seriousness of the offense should the offender
reoffend. This factor includes consideration of the following:
(i) The degree of likely force or harm;
(ii) The degree of likely physical contact; and
(iii) The age of the likely victim;
(B) The offender's prior offense history. This factor includes
consideration of the following:
(i) The relationship of prior victims to the offender;
(ii) The number of prior offenses or victims;
(iii) The duration of the offender's prior offense history;
(iv) The length of time since the offender's last prior
offense while the offender was at risk to commit offenses; and
(v) The offender's prior history of other antisocial acts;
(C) The offender's characteristics. This factor includes
consideration of the following:
(i) The offender's response to prior treatment efforts; and
(ii) The offender's history of substance abuse;
(D) The availability of community supports to the offender.
This factor includes consideration of the following:
(i) The availability and likelihood that the offender will be involved in therapeutic treatment;
(ii) The availability of residential supports to the offender,
such as a stable and supervised living arrangement in an
appropriate location;
(iii) The offender's familial and social relationships,
including the nature and length of these relationships and the
level of support that the offender may receive from these persons;
and
(iv) The offender's lack of education or employment stability;
(E) Whether the offender has indicated or credible evidence in
the record indicates that the offender will reoffend if released
into the community; and
(F) Whether the offender demonstrates a physical condition
that minimizes the risk of reoffense, including but not limited to,
advanced age or a debilitating illness or physical condition.
(8) Upon the request of the State Police or the offender's
parole or probation officer, the commissioner, executive director
or secretary may reconvene the end-of-confinement review committee
for the purpose of reassessing the risk level to which an offender
has been assigned under subdivision (5) of this section. In a
request for a reassessment, the State Police or the parole or
probation officer shall list the facts and circumstances arising
after the initial assignment or facts and circumstances known to
the State Police or the parole or probation officer, but not considered by the committee under subdivision (5) of this section
which support the request for a reassessment. The request for
reassessment by the State Police must occur within thirty days of
receipt of the report indicating the offender's risk level
assignment. The offender's parole or probation officer, in
consultation with the State Police, may request a review of a risk
level at any time if substantial evidence exists that the
offender's risk level should be reviewed by an end-of-confinement
review committee. This evidence includes, but is not limited to,
evidence of treatment failures or completions, evidence of
exceptional crime-free community adjustment or lack of appropriate
adjustment, evidence of substantial community need to know more
about the offender or mitigating circumstances that would narrow
the proposed scope of notification, or other practical situations
articulated and based in evidence of the offender's behavior while
under supervision. Upon review of the request, the end-of-
confinement review committee may reassign an offender to a
different risk level. If the offender is reassigned to a higher
risk level, the offender has the right to seek review of the
committee's determination under subsection (f) of this section.
(9) An offender may request the end-of-confinement review
committee to reassess the offender's assigned risk level after
three years have elapsed since the committee's initial risk
assessment and may renew the request once every two years following subsequent denials. In a request for reassessment, the offender
shall list the facts and circumstances which demonstrate that the
offender no longer poses the same degree of risk to the community.
In order for a request for a risk level reduction to be granted,
the offender must demonstrate full compliance with supervised
release conditions, completion of required post-release treatment
programming, and full compliance with all registration requirements
contained in this article. The offender must also not have been
convicted of any felony or misdemeanor offenses subsequent to the
assignment of the original risk level. The committee shall follow
the process outlined in subdivisions (1) through (3) of this
section in the reassessment. An offender who is incarcerated may
not request a reassessment under this subdivision.
(10) Offenders returned to prison as release violators do not
have a right to a subsequent risk reassessment by the end-of-
confinement review committee unless substantial evidence indicates
that the offender's risk to the public has increased.
(d)(1) Except as provided in subdivision (2), the commissioner
shall establish an end-of-confinement review committee to assign a
risk level:
(A) To offenders who are released from a federal correctional
facility in the State of West Virginia or a federal correctional
facility in another state and who intend to reside in the State of
West Virginia;
(B) To offenders who are accepted from another state under any
interstate compact or any other authorized interstate agreement;
and
(C) To offenders who are referred to the committee by the
State Police under subdivision (6) of this section.
(2) This subsection does not require the commissioner to
convene an end-of-confinement review committee for a person coming
into the State of West Virginia who is subject to probation under
another state's law. The probation or parole officer and the State
Police shall manage such cases in accordance with section nine of
this article.
(3) The committee shall make reasonable efforts to conform to
the same timelines applied to offenders released from a State
correctional facility or regional jail and shall collect all
relevant information and records on offenders assessed and assigned
a risk level under this section. However, for offenders who were
assigned the most serious risk level by another state, the
committee must act promptly to collect the information required
under this section.
The end-of-confinement review committee must proceed in
accordance with all requirements set forth in this section and
follow all policies and procedures applied to offenders released
from a State correctional facility or regional jail in reviewing
information and assessing the risk level of offenders covered by this subsection, unless restrictions caused by the nature of
federal or interstate transfers prevent such conformance. All of
the provisions of this section apply to offenders who are assessed
and assigned a risk level under this subsection.
(4) If a local law-enforcement agency learns or suspects that
a person who is subject to this section is living in the State of
West Virginia and a risk level has not been assigned to the person
under this section, the law-enforcement agency shall provide this
information to the State Police within three business days.
(5) If the State Police receives reliable information that a
person subject to this section is living in this state and a local
law-enforcement agency so requests, the State Police must determine
if the person was assigned a risk level under a law comparable to
this section. If the State Police determines that the law is
comparable and public safety warrants, the State Police, within
three business days of receiving a request, may proceed with
notification under subsection (e) of this section based on the
person's out-of-state risk level. However, if the State Police
conclude that the offender is from a state with a risk level
assessment law that is not comparable to this section, the extent
of the notification may not exceed that of a risk level II offender
under subdivision(12), subsection(e) of this section, unless the
requirements of subdivision (6) of this section have been met. If
an assessment is requested from the end-of-confinement review committee under subdivision (6) of this section, the State Police
may continue to disclose information under subsection (d) of this
section until the committee assigns the person a risk level. After
the committee assigns a risk level to an offender pursuant to a
request made under subdivision (6) of this section, the information
disclosed by the State Police shall be consistent with the risk
level assigned by the end-of-confinement review committee. The
State Police, in consultation with the commissioner, shall
determine whether the law of another state is comparable to this
section.
(6) If the State Police wants to make a broader disclosure
than is authorized under subdivision (5) of this section, the State
Police may request that the appropriate end-of-confinement review
committee assign a risk level to the offender. The State Police
shall provide to the committee all information concerning the
offender's criminal history, the risk the offender poses to the
community, and other relevant information. The end-of-confinement
review committee shall attempt to obtain other information relevant
to determining which risk level to assign the offender. The
committee shall promptly assign a risk level to an offender under
this subsection.
(e)(1) The State Police shall disclose to the public any
information regarding the offender contained in the report
forwarded to the agency under subdivision(6), subsection(c) of this section, that is relevant and necessary to protect the public and
to counteract the offender's dangerousness, consistent with the
guidelines in subdivision (2) of this section. The extent of the
information disclosed and the community to whom disclosure is made
must relate to the level of danger posed by the offender, to the
offender's pattern of offending behavior, and to the need of
community members for information to enhance their individual and
collective safety.
(2) The State Police shall employ the following guidelines in
determining the scope of disclosure made under this subsection:
(A) If the offender is assigned to risk level I, the State
Police may maintain information regarding the offender within the
agency and may disclose it to other law enforcement agencies.
Additionally, the State Police may disclose the information to any
victims of or witnesses to the offense committed by the offender.
The State Police shall disclose the information to victims of the
offense committed by the offender who have requested disclosure and
to adult members of the offender's immediate household;
(B) If the offender is assigned to risk level II, the State
Police also may disclose the information to agencies and groups
that the offender is likely to encounter for the purpose of
securing those institutions and protecting individuals in their
care while they are on or near the premises of the institution.
These agencies and groups include the staff members of public and private educational institutions, day care establishments, and
establishments and organizations that primarily serve individuals
likely to be victimized by the offender. The State Police also may
disclose the information to individuals the agency believes are
likely to be victimized by the offender. The State Police's belief
shall be based on the offender's pattern of offending or victim
preference as documented in the information provided by the
Division of Corrections or the Regional Jail and Correctional
Facility Authority;
(C) If the offender is assigned to risk level III, the State
Police shall disclose the information to the persons and entities
described in paragraphs (A) and (B) of this subdivision and to
other members of the community whom the offender is likely to
encounter, unless the State Police determines that public safety
would be compromised by the disclosure or that a more limited
disclosure is necessary to protect the identity of the victim.
Notwithstanding the assignment of a sex offender to risk level
II or III, the State Police may not make the disclosures permitted
or required by paragraph (B) or (C) of this subdivision, if the
offender is placed or resides in a residential facility. However,
if an offender is placed or resides in a residential facility, the
offender and the head of the facility shall designate the
offender's likely residence upon release from the facility and the
head of the facility shall notify the commissioner or the secretary of the offender's likely residence at least fourteen days before
the offender's scheduled release date. The commissioner or
secretary shall give this information to the State Police. The
head of the residential facility also shall notify the commissioner
or the secretary within forty-eight hours after finalizing the
offender's approved relocation plan to a permanent residence.
Within five days after receiving this notification, the
commissioner or secretary shall give to the State Police all
relevant information the commissioner or secretary has concerning
the offender, including information on the risk factors in the
offender's history and the risk level to which the offender was
assigned. After receiving this information, the State Police shall
make the disclosures permitted or required by paragraph (B) or (C),
as appropriate.
(3) As used in paragraph(B) and(C), subdivision(2) of this
section, "likely to encounter" means that:
(A) The organizations or community members are in a location
or in close proximity to a location where the offender lives or is
employed, or which the offender visits or is likely to visit on a
regular basis, other than the location of the offender's outpatient
treatment program; and
(B) The types of interaction which ordinarily occur at that
location and other circumstances indicate that contact with the
offender is reasonably certain.
(4) The State Police shall make a good faith effort to make
the notification within five business days of receipt of a
confirmed address from the Division of Corrections, the Regional
Jail and Correctional Facility Authority or the Department of
Health and Human Resources that the offender will be, or has been,
released from confinement, or accepted for supervision, or has
moved to a new address and will reside at the address indicated.
If a change occurs in the release plan, this notification provision
does not require an extension of the release date.
(5) The State Police may not disclose the identity or any
identifying characteristics of the victims of or witnesses to the
offender's offenses.
(6) The State Police shall continue to disclose information on
an offender as required by this subsection for as long as the
offender is required to register under this article. This
requirement to continue to disclose information also applies to an
offender who lacks a primary address.
(7) The State Police shall post information on an offender
assigned to risk level III on the Internet as required in
subsection (f) of this section.
(8) An offender who is the subject of a community notification
meeting held pursuant to this section may not attend the meeting.
(9) When a school, day care facility, or other entity or
program that primarily educates or serves children receives notice under paragraph(C) of this section, that a level III sex offender
resides or works in the surrounding community, notice to parents
must be made as provided in this subdivision. If the sex offender
identified in the notice is participating in programs offered by
the facility that require or allow the person to interact with
children other than the person's children, the principal or head of
the entity must notify parents with children at the facility of the
contents of the notice received pursuant to this section. The
immunity provisions of subsection (j) of this section apply to
persons disclosing information under this subdivision.
(f) The State Police shall create and maintain an Internet Web
site and post on the site the information about offenders assigned
to risk level III. This information must be updated in a timely
manner to account for changes in the offender's address and
maintained for the period of time that the offender remains subject
to community notification as a level III offender.
(g) (1) The State Police shall disclose the registrant status
of any sex offender required to register under this article to a
health care facility if the registered offender is receiving
inpatient care in that facility.
(2) As used in this section "health care facility" means a
publicly or privately owned facility, agency or entity that offers
or provides health care services, whether a for-profit or nonprofit
entity and whether or not licensed, or required to be licensed, in whole or in part, and includes, but is not limited to, hospitals;
skilled nursing facilities; kidney disease treatment centers,
including free-standing hemodialysis units; intermediate care
facilities; ambulatory health care facilities; ambulatory surgical
facilities; home health agencies; hospice agencies; rehabilitation
facilities; health maintenance organizations; and community mental
health and mental retardation facilities. For purposes of this
definition, "community mental health and mental retardation
facility" means a private facility which provides such
comprehensive services and continuity of care as emergency,
outpatient, partial hospitalization, inpatient or consultation and
education for individuals with mental illness, mental retardation
or drug or alcohol addiction.
(h) At least sixty days before a sex offender is released
from confinement, the Division of Corrections, the Regional Jail
and Correctional Facility Authority or the Department of Health and
Human Resources, shall give to the State Police all relevant
information that the division, the authority or the department has
concerning the offender, including information on risk factors in
the offender's history. Within five days after receiving the
offender's approved release plan from the hearings and release
unit, the Division of Corrections of the Regional Jail and
Correctional Facility Authority shall give to the State Police all
relevant information the department has concerning the offender, including information on risk factors in the offender's history and
the risk level to which the offender was assigned. If the
offender's risk level was assigned under the circumstances
described in subparagraph(ii), paragraph(d), subdivision(3) of
this section, the appropriate department shall give the State
Police all relevant information that the department or authority
has concerning the offender, including information on the risk
factors in the offender's history and the offender's risk level
within five days of the risk level assignment or reassignment.
(i) (1) An offender assigned or reassigned to risk level II or
III under subdivision(3),subsection(c),subdivision(5)or(8) has the
right to seek administrative review of an end-of-confinement review
committee's risk assessment determination. The offender must
exercise this right within fourteen days of receiving notice of the
committee's decision by notifying the chair of the committee. Upon
receiving the request for administrative review, the chair shall
notify: (A) The offender; (B) the victim or victims of the
offender's offense who have requested disclosure or their designee;
(C) the law-enforcement agency that investigated the offender's
crime of conviction or, where relevant, the law-enforcement agency
having primary jurisdiction where the offender was committed; (D)
the State Police, providing that the release plan has been approved
by the hearings and release unit of the Division of Corrections or
Regional Jail and Correctional Facility Authority; and (E) any other individuals the chair may select. The notice shall state the
time and place of the hearing. A request for a review hearing may
not interfere with or delay the notification process under
subsections (e) and (h) of this section, unless the administrative
law judge orders otherwise for good cause shown.
(2) An offender who requests a review hearing must be given a
reasonable opportunity to prepare for the hearing. The review
hearing shall be conducted on the record before an administrative
law judge. The review hearing shall be conducted at the
correctional facility, regional jail or mental health treatment
facility in which the offender is currently confined. If the
offender no longer is incarcerated, the administrative law judge
shall determine the place where the review hearing will be
conducted. The offender has the burden of proof to show, by a
preponderance of the evidence, that the end-of-confinement review
committee's risk assessment determination was erroneous. The
Attorney General or a designee shall defend the end-of-confinement
review committee's determination. The offender has the right to be
present and be represented by counsel at the hearing, to present
evidence in support of the offender's position, to call supporting
witnesses and to cross-examine witnesses testifying in support of
the committee's determination. Indigent offenders shall be
provided legal counsel.
(3) After the hearing is concluded, the administrative law judge shall decide whether the end-of-confinement review
committee's risk assessment determination was erroneous and, based
on this decision, shall either uphold or modify the review
committee's determination. The judge's decision shall be in
writing and shall include the judge's reasons for the decision.
The judge's decision shall be final and a copy of it shall be given
to the offender, the victim, the law-enforcement agency, and the
chair of the end-of-confinement review committee.
(4) The review hearing is subject to the contested case
provisions section four, article five, chapter twenty-nine-A of
this code.
(5) The administrative law judge may seal any portion of the
record of the administrative review hearing to the extent necessary
to protect the identity of a victim of or witness to the offender's
offense.
(j) (1) A state or local agency or official, or a private
organization or individual authorized to act on behalf of a state
or local agency or official, is not criminally liable for
disclosing or failing to disclose information as permitted by this
section.
(2) A state or local agency or official, or a private
organization or individual authorized to act on behalf of a state
or local agency or official, is not civilly liable for failing to
disclose information under this section.
(3) A state or local agency or official, or a private
organization or individual authorized to act on behalf of a state
or local agency or official, is not civilly liable for disclosing
information as permitted by this section. However, this
subdivision applies only to disclosure of information that is
consistent with the offender's conviction history. It does not
apply to disclosure of information relating to conduct for which
the offender was not convicted.
(b) (k) (1) At least sixty days before the release of any
inmate convicted of an offense requiring registration under
article, the commissioner, executive director, or secretary shall
send written notice of the impending release to the sheriff of the
county and the police chief of the city in which the inmate will
reside or in which placement will be made in a work release
program. The sheriff of the county where the offender was
convicted also shall be notified of the inmate's impending release.
(2) The same notice shall be sent to the following persons
concerning a specific inmate convicted of an offense requiring
registration under this article:
(A) The victim of the crime for which the inmate was convicted
or a deceased victim's next of kin if the victim or deceased
victim's next of kin requests the notice in writing;
(B) Any witnesses who testified against the inmate in any
court proceedings involving the offense, if the witness requests the notice in writing; and
(C) Any person specified in writing by the prosecuting
attorney.
The notice sent to victims under paragraph (A) must inform the
person that the person has the right to request and receive
information about the offender authorized for disclosure under the
community notification provisions of this section. If the victim
or witness is under the age of sixteen, the notice required by this
subsection shall be sent to the parents or legal guardian of the
child. The commissioner, executive director or secretary shall send
the notices required by this provision to the last address provided
by the requesting party. The requesting party shall furnish the
commissioner, executive director or secretary with a current
address. Information regarding witnesses requesting the notice,
information regarding any other person specified in writing by the
prosecuting attorney to receive the notice, and the notice are
private data on individuals and are not available to the inmate.
(3) The existence of the notice requirements contained in this
subsection shall in no event require an extension of the release
date.
(l) Information concerning persons whose names are contained
in the sex offender registry is not subject to the requirements of
the West Virginia Freedom of Information Act, as set forth in
chapter twenty-nine-b of this code, and may be disclosed and disseminated only as otherwise provided in this article.
and as
follows:
(1) (m) When a person has been determined to be a sexually
violent predator under the terms of section two-a of this article,
the State Police shall notify the prosecuting attorney of the
county in which the person resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends a
school or training facility. The prosecuting attorney shall
cooperate with the State Police in conducting a community
notification program which is to include publication of the
offender's name, photograph, place of residence, location of
regularly visited habitable real property owned or leased by the
offender, county of employment and place at which the offender
attends school or a training facility, as well as information
concerning the legal rights and obligations of both the offender
and the community. Information relating to the victim of an
offense requiring registration may not be released to the public
except to the extent the prosecuting attorney and the State Police
consider it necessary to best educate the public as to the nature
of sexual offenses:
Provided, That no victim's name may be
released in any public notification pursuant to this subsection.
No information relating to telephone or electronic paging device
numbers a registrant has or uses may be released to the public with
this notification program. The prosecuting attorney and State Police may conduct a community notification program in the county
where a person who is required to register for life under the terms
of subdivision (2), subsection (a), section four of this article
resides, owns or leases habitable real property that he or she
regularly visits, is employed or attends a school or training
facility. Community notification may be repeated when determined
to be appropriate by the prosecuting attorney.
(2) The State Police shall maintain and make available to the
public at least quarterly the list of all persons who are required
to register for life according to the terms of subdivision (2),
subsection (a), section four of this article. No information
concerning the identity of a victim of an offense requiring
registration or telephone or electronic paging device numbers a
registrant has or uses may be released with this list. The method
of publication and access to this list are to be determined by the
superintendent; and
(3) A resident of a county may petition the circuit court for
an order requiring the State Police to release information about
persons that reside or own or lease habitable real property that
the persons regularly visit in that county and who are required to
register under section two of this article. The court shall
determine whether information contained on the list is relevant to
public safety and whether its relevance outweighs the importance of
confidentiality. If the court orders information to be released, it may further order limitations upon secondary dissemination by
the resident seeking the information. In no event may information
concerning the identity of a victim of an offense requiring
registration or information relating to telephone or electronic
paging device numbers a registrant has or uses be released.
(c) (n) The State Police may furnish information and
documentation required in connection with the registration to
authorized law-enforcement, campus police and governmental agencies
of the United States and its territories, of foreign countries duly
authorized to receive the same, of other states within the United
States and of the State of West Virginia upon proper request
stating that the records will be used solely for law-enforcement-
related purposes. The State Police may disclose information
collected under this article to federal, state and local
governmental agencies responsible for conducting preemployment
checks. The State Police also may disclose information collected
under this article to the Division of Motor Vehicles pursuant to
the provisions of section three, article two, chapter seventeen-b
of this code.
(d) (o) An elected public official, public employee or public
agency is immune from civil liability for damages arising out of
any action relating to the provisions of this section except when
the official, employee or agency acted with gross negligence or in
bad faith.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-3. Suspension of sentence and release on probation.
(a) Whenever, upon the conviction of any person eligible for
probation under the preceding section, it shall appear to the
satisfaction of the court that the character of the offender and
the circumstances of the case indicate that he is not likely again
to commit crime and that the public good does not require that he
be fined or imprisoned, the court, upon application or of its own
motion, may suspend the imposition or execution of sentence and
release the offender on probation for such period and upon such
conditions as are provided by this article; but in no case, except
as provided by the following section, shall the court have
authority to suspend the execution of a sentence after the
convicted person has been imprisoned for sixty days under the
sentence.
(b) Any person released on probation must participate as a
condition of probation in the litter control program of the county
to the extent directed by the court, unless the court specifically
finds that this alternative service would be inappropriate.
(c) In any case in which a person is convicted of an offense
requiring registration as a sex offender pursuant to section two,
article twelve, chapter fifteen of this code and the court grants
a suspension of the imposition or execution of sentence and releases the offender on probation for such period and upon such
conditions as are provided by this article, the probation officer
who is assigned to supervise the offender shall provide in writing
to the following the fact that the offender is on probation and the
terms and conditions of probation:
(1) The victim of and any witnesses to the offense committed
by the offender, if the victim or the witness has requested notice;
and
(2) The State Police.
The State Police, in consultation with the offender's
probation officer, may provide all or part of this information to
any of the following agencies or groups the offender is likely to
encounter: public and private educational institutions, day care
establishments, and establishments or organizations that primarily
serve individuals likely to be victimized by the offender. The
State Police, in consultation with the offender's probation
officer, also may disclose the information to individuals the
probation officer believes are likely to be victimized by the
offender. The probation officer is not required under this
subdivision to provide any notice while the offender is placed or
resides in a licensed residential facility, if the facility staff
is trained in the supervision of sex offenders.
(d) Nothing in subsection (c) of this section may be
interpreted to impose a duty on any person to use any information regarding an offender about whom notification is made under this
section.
NOTE: This bill provides that at least 90 days before a sex
offender is to be released, a committee that includes a licensed
sex offender treatment provider, a law-enforcement official, and a
caseworker who handles sex offenders, convenes to determine the
risk that a particular sex offender will reoffend. They take into
consideration a wide range of factors, including the circumstances
of the sex offense which produced the conviction. The panel
decides the level a which an offender will be subject to community
notification. The extent of the information disclosed and the
community to whom disclosure is made must relate to the level of
danger posed by the offender, to the offender's pattern of
offending behavior, and to the need of community members for
information to enhance their individual and collective safety.
Low-risk offenders' information is given to law-enforcement
officials in the jurisdiction where the offender will reside, as
well as to the victims of and any witnesses to the individual's
offense. Moderate- to high-level risk offenders' information may
also be given, as appropriate, to area schools, daycares, and
healthcare centers, and the police may hold a community meeting to
explain the risks a particular sex offender poses for the
community. A convicted sex offenders may appeal their registration
status every two years to a panel of experts that includes law
enforcement and treatment providers. The panel has the authority
to reassess the convicted sex offender's level of dangerousness and
adjust his or her risk level accordingly.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended for introduction and passage during
the 2010 Regular Session of the Legislature by the Joint Standing
Committee on the Judiciary.