Colorado Legislative Council Staff

STATE

REVISED FISCAL NOTE

(replaces Fiscal Note dated April 7, 1998)

General Fund Expenditure Impact

TITLE:            CONCERNING SUPERVISION OF SEX OFFENDERS.

Summary of Legislation

            As amended by the House Appropriations Committee (House Journal April 22, 1998, page 1411) the bill enacts the “Colorado Sex Offender Lifetime Supervision Act of 1998". The bill defines the act to apply to anyone convicted of or pleads guilty or nolo contendere to any class 2, 3, or 4 felony sex offense on or after November 1, 1998.

            Further, the bill requires the court to sentence sex offenders to incarceration in the presumptive range, or to probation for an indeterminate term of at least 10 years for a class 4 felony, or 20 years for a class 2 or 3 felony up to a maximum of the offender’s natural life. If the sex offense is a crime of violence, the bill requires the court to sentence at the midpoint of the presumptive range and prohibits a sentence to probation. Additionally, a sex offender would be sentenced at the upper limit of the presumptive range and prohibited from receiving a sentence to probation if the offender is eligible to be sentenced as a habitual sex offender against children.

            As a part of their sentence, the bill requires all sex offenders to undergo a sex offender evaluation and participate in sex offender treatment.

            The following provisions would apply to sex offenders sentenced to the Department of Corrections (DOC):

            •          after completion of the minimum term of incarceration, minus any earned time or good time, instructs the State Board of Parole to schedule a hearing to determine whether the sex offender should be released on parole and to grant subsequent reviews if necessary;

            •          allows the State Board of Parole to waive the hearing if the sex offender has failed to participate in treatment;

            •          requires a paroled sex offender to participate in the Intensive Supervision Parole Program for sex offenders;

            •          allows the sex offender's parole officer to petition the State Board of Parole for a reduction in the level of parole supervision, and allows the parole officer to return the sex offender to intensive supervision if necessary to protect the public safety;

            •          after 20 years on parole for a sex offender convicted of a class 2 or 3 felony or 10 years on parole for a sex offender convicted of a class 4 felony, grants the sex offender an automatic hearing, and subsequent reviews if necessary, to determine whether he or she may be released from parole;

            •          instructs the DOC to make recommendations to the State Board of Parole regarding whether a sex offender should be released from incarceration and the level of treatment and monitoring the offender should receive; instructs the sex offender's parole officer and treatment provider to make recommendations regarding whether the level of parole supervision should be reduced and whether the sex offender should be discharged from parole;

            •          requires the State Board of Parole to consider the recommendations of the department, the parole officer, and the treatment provider, and to make findings on the record if it chooses not to follow them;

            •          provides that the sex offender may be subject to arrest and revocation of parole on the same grounds as parolees who are not sex offenders; and

            •          instructs the sex offender's parole officer and treatment provider to make recommendations at the revocation hearing, and requires the State Board of Parole to consider the recommendations and to make findings on the record if it chooses not to follow them.

            The following provisions would apply to sex offenders sentenced to probation:

            •          requires the sex offender to participate in the Intensive Supervision Probation Program for sex offenders;

            •          after completion of 20 years on probation for a sex offender convicted of a class 2 or 3 felony, or 10 years on probation for a sex offender convicted of a class 4 felony, requires the court to schedule a hearing to consider whether the sex offender should be discharged from probation and to grant subsequent reviews, if necessary;

            •          requires the sex offender's probation officer and treatment provider to make recommendations to the court concerning whether the sex offender should be discharged from probation;

            •          requires the court to consider the recommendations and make findings on the record if it chooses not to follow them;

            •          provides that the sex offender may be subject to arrest and revocation of probation on the same grounds as probationers who are not sex offenders; and

            •          instructs the sex offender's probation officer and treatment provider to make recommendations to the court at the revocation hearing, and requires the court to consider the recommendations and make findings on the record if it chooses not to follow them.

            The bill instructs the DOC to create an Intensive Supervision Parole Program for sex offenders and the Judicial Department to create an Intensive Supervision Probation Program for sex offenders and specifies the minimum requirements for both programs. The bill further allows any person who is convicted of criminal indecent exposure to participate in either program.

            Additionally, the bill provides that a sex offender should be released from incarceration, receive a reduced level of supervision, or be discharged from parole or probation if the sex offender has successfully progressed in treatment and would not pose an undue threat to the community. In the case of release on parole, the bill requires the State Board of Parole to determine whether there is a reasonable possibility that the sex offender will not commit a crime while on parole. The bill allows the State Board of Parole to defer reconsideration of a request for release on parole for periods of up to 3 years for any person convicted of a sexual offense prior to the effective date of this act.

            The Sex Offender Treatment Board would be instructed, in collaboration with the DOC, the Judicial Department, and the State Board of Parole, to establish criteria concerning whether the sex offender has met the standard for release or reduction in supervision and standards for entities providing treatment services for sex offenders with developmental disabilities. The recommendations of the DOC, parole officers, probation officers, and treatment providers are required to be based on the criteria established by the Sex Offender Treatment Board.

            Under this legislation, the "Colorado Sex Offender Lifetime Supervision Act of 1998" would apply to persons convicted of sex offenses committed on or after November 1, 1998.

State Expenditures

            The bill is assessed as having a fiscal impact on expenditures to the DOC, the Department of Public Safety and the Judicial Department. The impact on each department is explained below.

Department of Corrections

            The impact to the Department of Corrections under the provisions of the bill would occur in several areas. Each of these areas are described in the following sections.

            Sex Offender Treatment Program: The bill is not intended to increase the minimum sentence for sex offenders sentenced to prison. In order to provide effective treatment without increasing minimum sentences, the Sex Offender Treatment Program (SOTP) would need additional program components. The current format would be modified to meet the objectives of the bill to ensure sex offenders meet the standards required for release from incarceration. The new format would place offenders in four categories, according to their minimum sentence length. Additionally, the program would require funding to administer polygraph exams ($215 per exam). Curriculum development for the new treatment program and implementation of the program would require 1.54 FTE in FY 1998-99 and $63,531 General Fund. Expansion of the program and increasing DOC admissions would require additional FTE and General Fund in both FY 1998-99 and 1999-00 to fully operate the program. The SOTP would also require in FY 1999-00, 6.8 FTE and $374,314 General Fund appropriation.

            SORIS Parole Program: Sex offenders placed on parole and supervised in the community may be subject to electronic monitoring, participation in the drug and alcohol treatment program called Treatment Alternative to Street Crime (TASC), polygraph tests, drug screens, and mental health treatment. The cost of these subprograms per parolee are:

                        electronic monitoring is approximately $4.10 per day (or $1,497 per year);

the TASC program for 90 percent of parolees cost $600 annually;

average annual cost of polygraph tests is $215;

drug screens average $12.50 per week (or $650 annually); and

                        specific mental health treatment averages $254 per parolee.

The parole subprograms would require $575 General Fund appropriation in FY 1998-99 (this is included in the appropriation indicated below).

            It is anticipated that the SORIS program would increase under the provisions of the bill and therefore, programming and FTE would also increase. The Division of Adult Parole Services would be responsible for the supervision and monitoring of sex offenders placed on lifetime supervison and would include several components. These components would include five face-to-face contacts per month and daily telephone contact between parolees and parole staff, electronic curfew monitoring, parole sponsor or family contact once per month by parole staff, employment monitoring, drug and alcohol treatment, no contact and highly restricted orders, sex offender specific treatment, polygraph examinations, and development and maintenance of the sex offender’s “personal change contract” (as required under parole conditions).

            The impact of parole supervision for sex offenders has minimal impact in the beginning because time is given for the offense to be committed, the offender to be sentenced and the offender to serve time in prison before being released on lifetime parole supervision. The impact would appear to start having measurable impact in FY 1999-00. It is estimated that in FY 2002-03 there would be 400 offenders on lifetime parole. Sex offenders on lifetime parole would be placed into one of five levels. Each level varies according to the required conditions and the degree of monitoring and supervison by the parole officer. Offenders would decrease or increase in level according to their progress. The number of sex offenders per parole officer is different for each level, i.e. Level V would have one parole officer for every 15 sex offender parolees and Level I would have one parole officer for every 57 sex offender parolees. Therefore, based on the projected caseload for each level, the DOC would require .67 FTE in FY 1998-99 and a General Fund appropriation of $38,590. Further, the SORIS program in the Department of Corrections would require 1.0 FTE and $87,154 General Fund appropriation in FY 1999-00.

            Community Corrections: The Division of Community Corrections estimates that the sex offender caseload for community corrections will be 20 offenders by March 1999. It is not anticipated that the bill would create any increase in caseloads, however, it is assumed that additional treatment would be required at a cost of $500 per offender per year. Therefore, the Division of Community Corrections would require a $1,675 General Fund appropriation in FY 1998-99 and $10,825 in FY 1999-00.

            Bed Impact to the Department of Corrections: The following section assumes that the bill would not create any sentencing changes and therefore admissions to prison will not increase or decrease as a result of the bill. Based on data from the DOC, a model was developed to determine the flow of inmates through the system using the new requirements proposed for a sex offender to be released from prison and the standards for treatment completion. The bill would impact DOC beds only through increased lengths of stay for admissions and for offenders returning to prison on parole revocations. The number of admissions each fiscal year are based on the Legislative Council staff’s December 1997 projections and adds 4.7 percent each year. It is important to note that offenders convicted of a class 4 felony will be the first offenders to impact the DOC, however, because length of stay is projected to increase, the impact will not occur until year six.

            There are four main areas that this bill would impact DOC beds; discretionary release time by the Parole Board, up to three year deferral time, sex offender denials and parole revocations.

            ∙          Discretionary Release. It is assumed that some offenders would be deferred beyond the current mandatory release date. It is unknown how many or what categories of offenders would be incarcerated longer, therefore it is assumed that the overall lengths of stay would increase by five percent for each felony class.

            ∙           Up to Three year Deferral Time. The bill would allow the State Board of Parole to defer up to three years an offender who is convicted of any sex offense. Currently, statute only allows the Parole Board to defer offenders convicted of a class 2 or 3 sex offense. It is assumed that allowing class 4 sex offenses to be deferred up to three years will have an impact on 20 percent of those offenders convicted of a class 4 sex offense.

            ∙          Denial of Treatment. Under the bill sex offenders would be required to participate in treatment in order to be released from prison. It is anticipated that some offenders will continue to deny the offense and will refuse to participate in treatment and some may participate in treatment but not progress. Therefore, the length of stay for these offenders, or approximately three percent, will increase and have an impact on DOC bed space.

            ∙          Parole Revocations. The number of parole revocations is anticipated to be similar to the current number of offenders who are returned to prison on a parole revocation. The amount of time served in prison following a revocation is projected to increase as the offender will be required to reenter and progress successfully in treatment.

Five-Year Fiscal Impact on Correctional Facilities

            Pursuant to Section 2-2-703, C.R.S., which requires that bills which would result in a net increase in periods of imprisonment not be passed without five years of appropriations for prison bed construction and operating costs, the following analysis is provided. Construction costs are estimated to be $69,811 per bed and operating costs $23,352 per bed. It should be noted that the construction costs reflect the funding needed to construct the beds in the fiscal year prior to when the additional offenders would enter the system.

Colorado Department of Public Safety

            The bill would require the Sex Offender Treatment Board (SOTB) in the Division of Criminal Justice, Department of Public Safety to collaborate with the DOC, the Judicial Department, and the State Board of Parole, to complete several tasks. The SOTB would be mandated to develop criteria, standards, and procedures concerning how a sex offender may demonstrate that he or she would not pose a threat to the community if released on parole, placed on a lower level of supervision or discharged from supervision. The SOTB would also be required to develop methods of determining successful completion of intensive supervision and successful progression in treatment.

            To develop the criteria and standards under the provisions of the bill, the SOTB would need to expand the risk assessment research that is currently being conducted by the SOTB. The research (mandated by SB 97-84) is designed to address public risk when a sex offender is incarcerated, released into the community, or placed on a lower level of supervision. Valid risk assessment of sex offenders on lifetime supervision is essential to protect the public and requires ongoing data collection and analysis. This risk assessment instrument would be an integral tool that would be used by the Board of Parole, the DOC and the Judicial Department. It is assumed that to fulfill the requirements of this bill, the research would need to be modified to include additional assessment and decision making points. These would include, release from incarceration, reduction in supervision levels on parole or probation, release from parole and probation, and determining successful progress in treatment and completion of supervision.

            The bill would require the criteria and standards to be completed by July 1, 1999. It is anticipated that in addition to the development of a valid risk assessment instrument, the SOTB would need to provide intensive and ongoing training to parties responsible for the implementation of the standards, the departments involved, as well as sex offender treatment providers. It is assumed that it would take six months to develop the risk assessment instrument and the criteria and standards, and six months to provide statewide training and implementation.

            Further, for consistent implementation and to ensure the risk assessment instrument continues to be valid, the bill would require additional data collection, analysis and training. To accomplish the above goals and ensure the development of criteria, standards and procedures as required in this bill, the Department of Public Safety would require 1.0 FTE and $81,119 General Fund appropriation in FY 1997-98 and 1.8 FTE and $140,199 General Fund appropriation in FY 1999-00.

The Judicial Department

            Impact on Trial Court: The bill would have a fiscal impact on the trial courts as the increase in penalties may lead to higher trial rates. The weighted caseload standards for trial judges currently allow for a trial rate equal to approximately three percent of all criminal filings. Approximately 1,200 sex offenses are filed annually, therefore the trial courts would expect to hold trials in 36 cases. It is assumed that this increase in trials would require a minimum of 1.0 FTE judge and a minimum of 3.0 support staff. Because the bill proposes increased penalties there is the potential that trial rates may increase, however, the Judicial Branch is unable to predict the extent to which this may occur. Additionally, this is not figured into the fiscal note because legislation must be passed in order to increase the number of judges.

            Additionally, the trial courts would be impacted by the number of sex offenders returned to court on probation revocations. It is anticipated that 20 percent of offenders placed in the Sex Offender Intensive Supervision Program will be returned to court for consideration of revocation. Revocation hearings average 1 hour per case and can be heard by a magistrate. The projected sex offender caseload will be 533 for FY 1998-99, therefore, 107 cases (20 percent) would be returned to court, resulting in 107 hours and 0.2 FTE (0.07 magistrate, 0.07 division clerk, and 0.07 assistant division clerk) and $8,943 General Fund.

            Impact on the Office of Probation Services: The bill would require all sex offenders placed on probation after July 1, 1998, be supervised on Sex Offender Intensive Supervision (SOISP). The bill would require the Judicial Department to develop the SOISP program. Based on the development of other intensive supervision programs, the Judicial Department anticipates the average term for a sex offender on SOISP will be two years and standards would limit caseload size to 25 probationers for each probation officer. Filings for sex offenses have grown approximately five percent each year and sex offenders are placed on probation in 65 percent of the total filings. It is estimated that there will be 427 sex offenders sentenced to the SOISP for FY 1998-99 and 1,179 in FY 1999-00. Therefore, for the SOISP, the Judicial Department would require in FY 1998-99, 15.7 FTE (11.2 probation officer III, 1.4 probation supervisor I, and 3.1 secretary I) and $810,910 General Fund. It is anticipated that the impact will continue to increase and fiscal impact will also increase in the second and third year, therefore, an additional 41.6 FTE would be required in FY 1999-00 and $2,175,818 General Fund. Included in this cost is funding for polygraph exams at $180 per exam, and it is anticipated that 25 percent of offenders would require two polygraph exams per year.

            Additionally, offenders would be required as part of the intensive supervision program to participate in sex offender treatment. Treatment would require four group sessions per month for one full year, for an overall cost of $300 per offender per year. Therefore, to cover treatment costs, the Office of Probation Services would require $128,037 General Fund in FY 1998-99 and $416,763 in FY 1999-00.

            Overall, the bill would impact the Judicial Department (Trial Courts and Office of Probation Services) and would require 15.9 FTE and $947,890 General Fund appropriation in FY 1998-99 and 41.8 FTE and $2,601,524 General Fund appropriation in FY 1999-00.

Expenditures Not Included

            Pursuant to the Joint Budget Committee’s budget policies, the following expenditures have not been included in this fiscal note:

            •   health and life insurance costs;

            •   short-term disability costs;

            •   inflationary cost factors;

            •   leased space; and

            •   indirect costs.

Spending Authority

            This fiscal note indicates that for FY 1998-99, the Department of Corrections would require 2.2 FTE and $103,796 General Fund. The Department of Public Safety would require 1.0 FTE and $81,119 General Fund. The Judicial Department would require 15.9 FTE and $947,890 General Fund.

Departments Contacted

            Alternate Defense Counsel

            Department of Corrections

            Department of Public Safety

            State Public Defender

            Judicial

* Includes mental health treatment, drug and alcohol treatment, polygraph exams, electronic monitoring and drug screens.