Be it enacted by the General Assembly of Virginia:
§ 2.2-3703. Public bodies and records to which chapter inapplicable; voter registration and election records.
A. The provisions of this chapter shall not apply to:
1. The Virginia Parole Board, except that (i) information from the Virginia Parole Board providing the number of inmates considered by such Board for discretionary parole, the number of inmates granted or denied parole, and the number of parolees returned to the custody of the Department of Corrections solely as a result of a determination by such Board of a violation of parole shall be open to inspection and available for release, on a monthly basis, as provided by § 2.2-3704 and (ii) all records concerning the finances of the Virginia Parole Board shall be public records and subject to the provisions of this chapter. The information required by clause (i) shall be furnished by offense, sex, race, age of the inmate, and the locality in which the conviction was obtained, upon the request of the party seeking the information;
2. Petit juries and grand juries;
3. Family assessment and planning teams established pursuant to § 2.2-5207;
4. The Virginia State Crime Commission; and
5. The Commitment Review Committee and any documents, evaluations, assessments and proceedings involving the commitment of sexually violent predators under Article 1.1 (§ 37.1-70.1 et seq.) of Chapter 2 of Title 37.1.
B. Public access to voter registration and election records shall be governed by the provisions of Title 24.2 and this chapter. The provisions of Title 24.2 shall be controlling in the event of any conflict.
§ 37.1-70.1. Definitions.
The following words and phrases when used in this article shall have the following meanings, unless the context clearly indicates otherwise:
"Commissioner" means the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.
"Defendant" means any person charged with a sexually violent offense who is
deemed an unrestorably incompetent defendant pursuant to § 19.2-169.3 and is
"Director" means the Director of the Department of Corrections.
"Mental abnormality" or "personality disorder" means a congenital or acquired condition that affects a person's emotional or volitional capacity and renders the person so likely to commit sexually violent offenses that he constitutes a menace to the health and safety of others.
"Sexually violent offense" means
"Sexually violent predator" means any person who (i) has been convicted of a
sexually violent offense or has been charged with a sexually violent offense
and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3
§ 37.1-70.2. Rights of prisoners and defendants.
In hearings and trials held pursuant to this article, prisoners and defendants shall have the following rights:
1. To receive adequate notice of the proceeding.
2. To be represented by counsel.
3. To remain silent or to testify.
4. To be present during the hearing or trial.
5. To present evidence and to cross-examine witnesses.
6. To view and copy all petitions and reports in the court file.
In no event shall a prisoner or defendant be permitted, as a part of any proceedings under this article, to raise challenges to the validity of his prior criminal sentences or institutional convictions.
In the event the prisoner or defendant refuses to cooperate with the mental health examination required under § 37.1-70.5, the court may admit evidence of such refusal and may bar the prisoner or defendant from introducing his own expert psychiatric or psychological evidence.
§ 37.1-70.3. Commitment Review Committee; membership.
A. The Director of the Department of Corrections shall establish a Commitment Review Committee (CRC) to screen, evaluate, and make recommendations regarding prisoners in the custody of the Department of Corrections for the purposes of this article. The CRC shall be under the supervision of the Department of Corrections. Members of the CRC and any licensed psychiatrists or licensed clinical psychologists providing examinations under subsection B of § 37.1-70.5 shall be immune from personal liability while acting within the scope of their duties except for gross negligence or intentional misconduct.
B. The CRC shall consist of seven members to be appointed as follows: (i) three full-time employees of the Department of Corrections, appointed by the Director of the Department of Corrections; (ii) three full-time employees of the Department of Mental Health, Mental Retardation and Substance Abuse Services, appointed by the Commissioner, at least one of whom shall be a psychiatrist or psychologist licensed to practice in the Commonwealth of Virginia who is skilled in the diagnosis of mental abnormalities and personality disorders associated with violent sex offenders; and (iii) one assistant or deputy attorney general, appointed by the Attorney General. Initial appointments by the Director and the Commissioner shall be for terms as follows: one member each for two years, one member each for three years, and one member each for four years. The initial appointment by the Attorney General shall be for a term of four years. Thereafter, all appointments to the CRC shall be for terms of four years, and vacancies shall be filled for the unexpired terms. Five members shall constitute a quorum.
C. The CRC shall meet at least monthly and at other times as it deems appropriate. The CRC shall elect a chairman from its membership to preside during meetings.
§ 37.1-70.4. Treatment plans; database of prisoners convicted of sexually violent offenses; maintained by Department of Corrections; notice of pending release to CRC.
A. The Director shall establish and maintain a treatment program for prisoners convicted pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 and committed to the custody of the Department of Corrections. Such program shall include a clinical assessment of all such prisoners upon receipt into the custody of the Department of Corrections and the development of appropriate treatment plans if indicated. This program shall be operated under the direction of a licensed clinical psychiatrist or licensed clinical psychologist who is experienced in the diagnosis and treatment of mental abnormalities and disorders associated with criminal sexual offenders.
B. The Director of the Department of Corrections shall establish and maintain a database of prisoners in his custody who are incarcerated for sexually violent offenses. The database shall include the following information regarding each prisoner: (i) the prisoner's criminal record, (ii) the prisoner's sentences and scheduled date of release, and (iii) the appropriate locality for a commitment petition.
C. Each month, the Director shall review the database of prisoners incarcerated
for sexually violent offenses and identify all such prisoners who are scheduled
for release from prison
§ 37.1-70.5. CRC assessment of prisoners eligible for commitment as sexually violent predators; mental health examination; recommendation.
B. CRC assessments of prisoners incarcerated for sexually violent offenses shall include a mental health examination, including a personal interview, of the prisoner by a licensed psychiatrist or a licensed clinical psychologist, designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services, who is skilled in the diagnosis and treatment of mental abnormalities and disorders associated with violent sex offenders, and who is not a member of the CRC. The licensed psychiatrist or licensed clinical psychologist shall determine whether the prisoner is a sexually violent predator as defined in § 37.1-70.1 and forward the results of this evaluation and any supporting documents to the CRC for its review. The CRC assessment shall also include consideration of the prisoner's score on the Virginia Criminal Sentencing Commission's Sex Offender Risk Assessment Instrument and a review of (i) the prisoner's institutional history and treatment record, if any; (ii) the prisoner's criminal background; and (iii) any other factor which is relevant to the determination of whether such prisoner is a sexually violent predator.
C. Following the examination and review of a prisoner conducted pursuant to subsection B, the CRC shall recommend that such prisoner (i) be committed as a sexually violent predator pursuant to this article; (ii) not be committed, but be placed in a conditional release program as a less restrictive alternative; or (iii) not be committed because he does not meet the definition of a sexually violent predator. To assist the Attorney General in his review, the Department of Corrections, the CRC, and the psychiatrist or psychologist who conducts the mental health examination pursuant to this section shall provide the Attorney General with all evaluation reports, prisoner records, criminal records, medical files, and any other documentation relevant to determining whether a prisoner is a sexually violent predator.
D. Pursuant to clause (ii) of subsection C, the CRC shall recommend that a prisoner enter a conditional release program if it finds that (i) such prisoner does not need inpatient hospitalization, but needs outpatient treatment and monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that the prisoner, if conditionally released, would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety.
§ 37.1-70.6. Review of prisoners incarcerated for sexually violent offenses; unrestorably incompetent defendants charged with sexually violent offenses; petition for commitment; notice to Department of Corrections or referring court regarding disposition of review.
A. Upon receipt of a recommendation by the CRC regarding a prisoner
incarcerated for a sexually violent offense or upon receipt of a court order
referring an unrestorably incompetent defendant for review pursuant to §
19.2-169.3, the Attorney General shall have
B. In determining whether to file a petition to civilly commit a prisoner under this article, the Attorney General shall review (i) the CRC recommendation and its reasoning; (ii) the results of the mental health examination conducted pursuant to § 37.1-70.5; (iii) the prisoner's institutional history and treatment record, if any; (iv) the prisoner's criminal offense history; and (v) any other factor relevant to the determination of whether the prisoner should be civilly committed. Although the Attorney General shall consider the CRC recommendation as part of the review, the CRC recommendation is not binding upon the Attorney General.
C. In determining whether to file a petition to civilly commit a defendant under this article, the Attorney General shall review (i) the defendant's warrant or indictment, (ii) the competency report completed pursuant to § 19.2-169.1, (iii) the report and recommendations prepared by the director of the defendant's treating facility pursuant to § 19.2-169.3, (iv) the defendant's criminal offense history, (v) information about the alleged crime, and (vi) any other factor relevant to the determination of whether the defendant should be civilly committed.
§ 37.1-70.9. Trial; right to trial by jury; standard of proof.
B. The Attorney General or the person who is the subject of the petition shall
have the right to a trial by jury. Seven persons from a panel of
C. The court or jury shall determine whether,
If the court or jury finds the person to be a sexually violent predator, the court shall then determine the nature of treatment the person is to receive. If the court finds, in its determination of treatment needs, that alternatives to involuntary confinement and treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to institutional confinement and treatment, the judge shall by written order and specific findings so certify and order that the person be committed to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for appropriate treatment and confinement in a secure facility designated by the Commissioner. Persons committed pursuant to this article are subject to the provisions of §§ 19.2-174.1 and 37.1-134.21.
However, if the court finds, in determining the treatment needs of a person
found to be a sexually violent predator, that less restrictive alternatives to
institutional confinement and treatment have been investigated and are deemed
suitable, and if the judge finds specifically that the person meets the
criteria for conditional release set forth in § 37.1-70.13, the judge shall
order outpatient treatment, day treatment in a hospital, night treatment in a
hospital, outpatient involuntary treatment with anti-psychotic medication pursuant
to § 37.1-134.21, or such other appropriate course of treatment as may be
necessary to meet the needs of the individual. The
In the event of a mistrial, the court shall direct that the prisoner remain in
the secure custody of the Department of Corrections or the defendant remain in
the secure custody of the Department of Mental Health, Mental Retardation and
Substance Abuse Services until another trial is conducted. Any subsequent trial
following a mistrial shall be held within
All proceedings conducted hereunder are civil proceedings. However, no discovery other than that provided in § 37.1-70.2 shall be allowed without prior leave of court, which may deny or limit discovery in any such proceeding. Under no circumstances shall the prisoner or defendant be entitled to receive a copy of the Victim Impact Statement or the presentence investigation report, provided that counsel for the prisoner or defendant may, upon motion to the court and for good cause shown, review the Victim Impact Statement or presentence investigation report outside the presence of his client.
§ 37.1-70.10. Placement of committed persons.
Any person committed pursuant to this article shall be placed in the custody of
the Department of Mental Health, Mental Retardation and Substance Abuse
Services for control, care and treatment until such time as the person's mental
abnormality or personality disorder has so changed that the person will not
present an undue risk to public safety.
§ 37.1-70.11. Review of continuation of confinement hearing; procedure and reports; disposition.
A. The committing court shall conduct a hearing
B. Prior to the hearing, the Commissioner shall provide to the court a report reevaluating the committed person's condition and recommending treatment, to be prepared by a licensed psychiatrist or a licensed clinical psychologist who shall be skilled in the diagnosis and treatment of mental abnormalities and personality disorders associated with violent sex offenders, and qualified by training and experience to perform forensic evaluations. If the Commissioner's report recommends release or the committed person requests release, the committed person's condition and need for inpatient hospitalization shall be evaluated by a second person with such credentials who is not currently treating the committed person. Any professional person who conducts a second evaluation of a committed person shall submit a report of his findings to the court and the Commissioner. A copy of any report submitted pursuant to this subsection shall be sent to the Attorney General.
C. The burden of proof at the hearing shall be upon the Commonwealth to prove
to the court
D. If the court finds, based upon the report and other evidence provided at the
hearing, that the committed person's condition has so changed that he is no
longer a sexually violent predator, the court shall (i) release the committed
person from confinement if he does not need inpatient hospitalization and does
not meet the criteria for conditional release set forth in § 37.1-70.13,
provided the court has approved a discharge plan prepared
§ 37.1-70.12. Petition for release; hearing; procedures.
A. The Commissioner may petition the committing court for conditional or
unconditional release of the committed person at any time he believes the
committed person's condition has so changed that he is no longer a sexually
violent predator in need of treatment and secure confinement. The petition
shall be accompanied by a report of clinical findings supporting the petition
and by a conditional release or discharge plan, as applicable, prepared
B. Upon the submission of a petition pursuant to this section, the committing court shall conduct the proceedings according to the procedures set forth in § 37.1-70.11.
§ 37.1-70.13. Conditional release; criteria; conditions; reports.
At any time the court considers the committed person's need for inpatient hospitalization pursuant to this article, it shall place the committed person on conditional release if it finds that (i) based on consideration of the factors which the court must consider in its commitment decision, he does not need inpatient hospitalization but needs outpatient treatment or monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that the committed person, if conditionally released, would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety. The court shall subject a conditionally released committed person to such orders and conditions it deems will best meet the committed person's need for treatment and supervision and best serve the interests of justice and society.
§ 37.1-70.14. Emergency custody of conditionally released person; revocation of conditional release.
A judicial officer may issue an emergency custody order, upon the sworn
petition of any responsible person, or upon his own motion, based upon probable
cause to believe that a person on conditional release within his judicial
district has violated the conditions of his release and is no longer a proper
subject for conditional release. The emergency custody order shall require a
law-enforcement officer take the person into custody immediately and transport
him to a convenient location specified in the order where a person designated
The person on conditional release shall remain in custody until a hearing is held in the circuit court on the motion or petition to determine if he should be returned to the custody of the Commissioner. Such hearing shall be given priority on the court's docket. If upon hearing the evidence, the court finds that the person on conditional release has violated the conditions of his release and that the violation of conditions was sufficient to render him no longer suitable for conditional release, the court shall revoke his conditional release and order him returned to the custody of the Commissioner for inpatient treatment. The person may petition the original committing court for re-release pursuant to the conditions set forth in § 37.1-70.12 no sooner than six months from his return to custody. The party petitioning for re-release shall transmit a copy of the petition to the Attorney General and to the Commissioner.
§ 37.1-70.15. Modification or removal of conditions; notice; objections; review.
A. The committing court may modify conditions of release or remove conditions
placed on release pursuant to § 37.1-70.13, upon petition of the
B. As it deems appropriate based on the
§ 37.1-70.16. Representation of Commonwealth and person subject to commitment; nature of proceedings.
The Attorney General shall represent the Commonwealth in all proceedings held
pursuant to this article
The court shall appoint counsel for the person subject to commitment or conditional release pursuant to subsection B of § 37.1-70.7 unless such person waives his right to counsel. The court shall consider appointment of the person who represented the person in previous proceedings.
All proceedings held under this article shall be civil proceedings.
§ 37.1-103. Habeas corpus as means.
Any person held in custody as mentally ill may by petition for a writ of habeas corpus have the question of the legality of his detention determined by a court of competent jurisdiction. Upon the petition, after notice to the authorities of the hospital or other institution in which such person is confined, the court shall in some courtroom of such county or city, or in some other convenient public place in such county or city determine whether such person is mentally ill and whether he should be detained. Any proceeding to challenge the continued confinement of a person held in custody under Article 1.1 (§ 37.1-70.1 et seq.) of Chapter 2 of this title shall be conducted in accordance with § 37.1-70.11.
§ 37.1-104. Procedure when person confined in hospital or other institution.
If the person mentioned in § 37.1-103 is held in custody and actually confined in any hospital or other institution, he may file his petition in the circuit court of the county or the city in which such hospital or other institution is located or in the circuit court of the county or the city adjoining the county or city in which such hospital or other institution is located. Any proceeding to challenge the continued confinement of any person held in custody under Article 1.1 (§ 37.1-70.1 et seq.) of Chapter 2 of this title shall be conducted in the circuit court wherein the person was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment pursuant to § 19.2-169.3.
§ 37.1-104.1. Procedure when person not confined in hospital or other institution.
In all cases, other than those provided for in § 37.1-104, the person may file his petition in the circuit court of the county or the city in which he resides, or in which he was certified to be mentally ill, or in which an order was entered authorizing his retention for continued hospitalization, pursuant to Chapter 2, Article 1 (§ 37.1-63 et seq.) of this title. Any proceeding to challenge the continued confinement of any person held in custody under Article 1.1 (§ 37.1-70.1 et seq.) of Chapter 2 of this title shall be conducted in the circuit court wherein the person was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment pursuant to § 19.2-169.3.
2. That, in the event the Department contracts with a public or private entity to provide care and treatment for sexually violent predators, the Department shall give weight to selection of an entity that has demonstrated ability to provide treatment to sexually violent predators and has demonstrated ability to protect the public.
3. That an emergency exists and this act is in force from its passage, notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002.
4. That, notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002, the provisions of Chapters 946 and 985, as they may be amended, of the Acts of Assembly of 1999 shall become effective on the effective date of this act.
5. That the third enactments of Chapter 946 and Chapter 985, as amended, of the Acts of Assembly of 1999 are amended and reenacted as follows:
3. That the effective date of this act is
3. That the effective date of this act is