Colorado Legislative Council Staff

STATE

REVISED FISCAL IMPACT

(replaces fiscal impact dated January 18, 1999)

TITLE:            CONCERNING HIV TESTING IN CASES WHERE THE PERSON TESTED IS CHARGED WITH A CRIME INVOLVING SEXUAL BEHAVIOR.

Summary of Legislation

            This reengrossed bill revises portions of the criminal code to require any person convicted of violating state laws governing prostitution or comparable municipal ordinances to be ordered by the court to submit to an HIV blood test. The results of the blood test are to be reported to the person and to the district attorney or the municipal prosecuting attorney. The results of the blood test are to be kept confidential unless the test indicates the presence of HIV and the person is subsequently charged with a violation of certain other laws, or a violation of certain laws or a comparable municipal ordinance and the prosecuting entity seeks the test results for evaluation, charging, and sentencing. The bill specifies the manner in which the test results may be released for such purposes.

            The bill requires the test to be performed by an on-going health care facility and requires the testing employee to provide evidence limited to whether the person was notified prior to the offense that he or she had tested positive for HIV that causes AIDS. When sentencing any person convicted of prostitution with knowledge of being infected with AIDS, the court may order the person to submit to controlled substance or alcohol abuse, and mental health assessment and treatment at the person's own expense, unless the person is indigent.

            The bill revises portions of the criminal code governing unlawful sexual behavior by requiring any adult or juvenile bound over for trial for committing a sexual offense to be ordered by the court to submit to an HIV blood test. The bill requires the district attorney to keep the test results confidential, except for pleading and proving the mandatory sentencing provisions of the bill. If the persons tests HIV positive, the district attorney may contact the state or local department of health to determine whether the person had been notified prior to the offense that he or she tested HIV positive. If the district attorney finds the person had been so notified, the district attorney may file an indictment and seek the mandatory sentence. Any such allegation is to be kept confidential from the jury throughout the trial.

            The bill prescribes a manner in which the state or local department of health shall provide documentary evidence and information. The bill stipulates conditions that constitute conclusive proof the person had prior notice of his or her HIV infection, and requires the court to sentence the person to a mandatory term of incarceration.

            If the person is found guilty of the substantive offense, the court shall conduct a separate sentencing hearing to determine whether the person had prior notice of his or her HIV infection. If the court determines the person had been given prior notice, the bill requires the judge to sentence the person to a mandatory term of incarceration of at least three times the upper limit of the presumptive range for the level of offense committed, up to the remainder of the person's natural life.

State Revenue

            Under current law, in addition to any sentence, the court may impose a fine of $3,000 to $750,000 for a class 3 felony and a fine of $2,000 to $500,000 for a class 4 felony. The amount of the fines, if any, are at the discretion of the court. All fines are deposited to the Fines Collection Cash Fund to pay the court's administrative and personnel costs. Any unexpended fund balances revert to the state General Fund at the end of each fiscal year.

            This bill does not create a new felony violation and does not affect the amount of the fines to be imposed on felony violations. Therefore, this fiscal note assumes the amount of state fine revenue will not be affected.

State Expenditures

            Medical treatment. This reengrossed bill authorizes the court to require offenders convicted of violating prostitution laws with prior knowledge of being infected with AIDS to participate in alcohol or drug treatment or mental health treatment. The costs for such treatment are to be at the offender's expenses, unless the offender is indigent.

            The Department of Human Services anticipates the annual costs for treatment for indigents to be minimal. This fiscal note assumes those costs, if any, can be absorbed within existing resources. However, the department may request additional resources in the event those costs exceed budget limitations.

            Mandatory prison sentence. The reengrossed bill also adds mandatory sentencing provisions to current law for offenders found guilty of a felony where the substantive offense is a sexual offense involving sexual penetration. Convicted offenders who had knowledge of being infected with HIV prior to the offense must be sentenced to a term of incarceration for a minimum of three times the upper limit of the presumptive range and a maximum of life. As a result,

            1. offenders currently sentenced to probation or community corrections diversion programs would be sentenced to prison; and

            2. offenders currently sentenced to prison would receive substantially longer sentences.

            The Department of Correction's General Fund costs starting in FY 1999-2000 to support the mandatory sentencing provisions of this reengrossed bill are based upon the following assumptions:

            •   that offenses committed on or after July 1, 1999, would be subject to the provisions of this bill;

            •   that the length of the prison term is based upon a normal life expectancy;

            •   that during FY 1997-98, prison admissions included 333 offenders with a sexual offense as the most serious conviction;

            •   that three of these offenders (0.9%) tested positive for HIV;

            •   that two of those three offenders were convicted of a class 3 felony with an average prison sentence of 21 years, and one of those three offenders was convicted of a class 4 felony with a 10 year prison sentence; and

            •   that, based upon research of these cases, one of those three offenders would be proven to have had prior knowledge of HIV infection, and that it is likely a second case would be found to have had prior knowledge.

            Therefore, this reengrossed bill would require one offender currently sentenced for a class 3 felony and one offender currently sentenced for a class 4 felony to be annually sentenced under the "three times the maximum" provisions starting in FY 1999-2000. The length of the sentence for a class 3 felony would be increased from 16 years to 48 years which represents an increase of 27 years over the current average prison sentence of 21 years. The length of the sentence for a class 4 felony would be increased from 8 years to 24 years which represents an increase of 14 years over the current average prison sentence of 10 years.

            Current data provided by Legislative Council Staff indicates that only 46.5% of sex offense convictions result in prison sentences. Under current law, offenders not sentenced to prison are usually sentenced to probation or community corrections. This reengrossed bill requires a mandatory prison sentence for those offenders who had prior knowledge of HIV infection. Therefore, two additional convicted offenders (one class 3 felony and one class 4 felony) who would not have been sentenced to prison under current law will annually be sentenced to prison starting in FY 1999-2000.

The length of the sentence for the class 3 felony will be 48 years and the length of the sentence for a class 4 felony will be 24 years.

            In summary, starting in FY 1999-2000, the mandatory sentencing provisions of this reengrossed bill will annually increase the prison sentence of two sex offenders AND will cause two sex offenders to be sentenced to prison who would not be imprisoned under current law.

Five-Year Fiscal Impact on Correctional Facilities

            Section 2-2-703, C.R.S. requires that bills which would result in a net increase in periods of imprisonment not be passed without five years of appropriations sufficient to cover prison bed construction and operating costs. Construction costs are estimated to be $69,467 per bed and operating costs $24,105 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. Convicted offenders may be incarcerated in county jails until a sufficient number of prison beds are made available.

            The impact on the Department of Correction's average daily attendance (ADA) is shown in Table 1. There is no ADA operating cost impact for FY 1999-00, only construction costs. The ADA operating cost impact for the two offenders with new mandatory sentences would start in FY 2000-01. The ADA impact for the two offenders with mandatorily increased sentences would start in the eleventh year for the offender of the class 3 felony and in the 22^nd year for the offender of the class 4 felony.

            This fiscal note assumes the offenders of the class 3 felonies will be eligible for parole after approximately 66 percent of the prison term has been fulfilled, and that the offenders of the class 4 felonies will be eligible for parole after approximately 74 percent of the prison term has been fulfilled.

Local Government Impact

            Convicted offenders may be incarcerated in county jail at state cost until a sufficient number of state prison beds are made available.

State Expenditures

            This fiscal note would imply the Department of Corrections would require a General Fund appropriation of $138,934 for FY 1999-2000.

            In addition, the Department of Corrections would require the outstanding five-year appropriation in accordance with Section 2-2-703, C.R.S., as indicated in Table 1.

Departments Contacted

            Corrections     Human Services         Health Care Policy and Financing      Judicial

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