SECOND SUBSTITUTE SENATE BILL 5623
State of Washington 52nd Legislature 1991 Regular Session
By Senate Committee on Ways & Means (originally sponsored by Senators Thorsness, Niemi, Talmadge, Metcalf and Sutherland).
Read first time March 7, 1991.
AN ACT Relating to sentencing of offenders; amending RCW 7.69.020, 7.69.030, 9.94A.110, 9.94A.150, 9.94A.390, 13.40.150, 13.40.190, 9.94A.030, 9.94A.040, and 72.09.050; reenacting and amending RCW 9.94A.380; adding a new section to chapter 9.94A RCW; adding a new section to chapter 13.40 RCW; adding a new section to chapter 72.09 RCW; creating a new section; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The legislature finds that the prison population of the state has grown by twenty-three percent from 1988 to 1990 and from 1990 to 1996 it is expected to more than double. The state's jails experienced an average daily population growth of nearly fifty percent between 1984 and 1989. Many states and nations have, in an effort to stem the growth in incarceration, established intermediate sentencing practices which provide punishment to offenders and protection to the public at a cost less than that associated with total confinement.
The legislature further finds that a large percentage of the growth in the state's correctional population has been due to increased incarceration of drug offenders and that drug abuse is a societal problem that will not be resolved solely through incarceration of drug offenders.
The legislature further finds that, because there are few alternatives to imprisonment explicitly provided for in the state's sentencing scheme, courts infrequently employ intermediate or alternative sentences. Offenders who may not be career criminals are thus being placed in facilities with career criminals, to the ultimate detriment of society when the offenders are released.
It is the intent of the legislature in adopting this act to encourage the state's judiciary to, when sentencing offenders, employ alternatives to total confinement in a manner that protects the general public.
Sec. 2. RCW 7.69.020 and 1985 c 443 s 2 are each amended to read as follows:
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) "Crime" means an act punishable as a felony, gross misdemeanor, or misdemeanor under the laws of this state or equivalent federal or local law.
(2) "Survivor" or "survivors" of a victim of crime means a spouse, child, parent, legal guardian, sibling, or grandparent. If there is more than one survivor of a victim of crime, one survivor shall be designated by the prosecutor to represent all survivors for purposes of providing the notice to survivors required by this chapter. It includes an individual representative of a business, organization, governmental agency, or the state against whom a crime has been committed.
(3) "Victim" means a person against whom a crime has been committed or the representative of a person against whom a crime has been committed. It includes an individual representative of a business, organization, governmental agency, or the state against whom a crime has been committed.
(4) "Victim impact statement" means a statement submitted to the court by the victim or a survivor, individually or with the assistance of the prosecuting attorney if assistance is requested by the victim or survivor, which may include but is not limited to information assessing the financial, medical, social, and psychological impact of the offense upon the victim or survivors.
(5) "Witness" means a person who has been or is expected to be summoned to testify for the prosecution in a criminal action, or who by reason of having relevant information is subject to call or likely to be called as a witness for the prosecution, whether or not an action or proceeding has been commenced.
(6) "Community treatment" means residential or outpatient treatment provided by a person or program approved by the secretary of social and health services pursuant to Title 69 or 71 RCW.
Sec. 3. RCW 7.69.030 and 1985 c 443 s 3 are each amended to read as follows:
There shall be a reasonable effort made to ensure that victims, survivors of victims, and witnesses of crimes have the following rights:
(1) To be informed by local law enforcement agencies or the prosecuting attorney of the final disposition of the case in which the victim, survivor, or witness is involved;
(2) To be notified by the party who issued the subpoena that a court proceeding to which they have been subpoenaed will not occur as scheduled, in order to save the person an unnecessary trip to court;
(3) To receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts, and to be provided with information as to the level of protection available;
(4) To be informed of the procedure to be followed to apply for and receive any witness fees to which they are entitled;
(5) To be provided, whenever practical, a secure waiting area during court proceedings that does not require them to be in close proximity to defendants and families or friends of defendants;
(6) To have any stolen or other personal property expeditiously returned by law enforcement agencies or the superior court when no longer needed as evidence. When feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis, and property of which ownership is disputed, shall be photographed and returned to the owner within ten days of being taken;
(7) To be provided with appropriate employer intercession services to ensure that employers of victims, survivors of victims, and witnesses of crime will cooperate with the criminal justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearance;
(8) To access to immediate medical assistance and not to be detained for an unreasonable length of time by a law enforcement agency before having such assistance administered. However, an employee of the law enforcement agency may, if necessary, accompany the person to a medical facility to question the person about the criminal incident if the questioning does not hinder the administration of medical assistance;
(9) With respect to victims and survivors of victims, to be physically present in court during trial, or if subpoenaed to testify, to be scheduled as early as practical in the proceedings in order to be physically present during trial after testifying and not to be excluded solely because they have testified;
(10) With respect to victims and survivors of victims, to be informed by the prosecuting attorney of the date, time, and place of the trial and of the sentencing hearing for felony convictions upon request by a victim or survivor;
(11) To volunteer to participate in mediation with the offender in the presence of an independent, trained mediator, consistent with section 4 of this act;
(12) To submit a victim impact statement or report to the court, with the assistance of the prosecuting attorney if requested, and to submit to the court any restitution agreement entered into in connection with a mediation program conducted pursuant to section 4 of this act, which in either case shall be included in all presentence reports and permanently included in the files and records accompanying the offender committed to the custody of a state agency or institution;
(13) With respect to victims and survivors of victims, to present a
statement personally or by representation, at the sentencing hearing for felony
(14) With respect to victims and survivors of victims, to entry of an
order of restitution by the court in all felony cases, even when the offender
is sentenced to confinement, unless extraordinary circumstances exist which
make restitution inappropriate in the court's judgment.
NEW SECTION. Sec. 4. A new section is added to chapter 9.94A RCW to read as follows:
(1) When an offender pleads guilty or is found guilty, the court shall refer the case to a victim-offender mediation program or, if such a program is not available in the county, a dispute resolution center, except that no referral shall be made in the following circumstances:
(a) The offense is a sex offense as defined in RCW 9.94A.030(29);
(b) The offense is a violent offense as defined in RCW 9.94A.030(33);
(c) The offense involves acts of domestic violence as defined in RCW 26.50.010(1);
(d) The offender has a history of domestic violence as defined in RCW 26.50.010(1), involving the victim or a member of the victim's family or household as defined in RCW 26.50.010(2); or
(e) A meeting between the victim and offender would be clearly impractical or not feasible.
(2) Neither the victim nor the offender shall be required to participate in mediation, but, if both are willing to participate, and, in the case of a victim under the age of eighteen, a parent or legal guardian of the victim is also willing to participate, the victim-offender mediation program or dispute resolution center shall provide an opportunity for the victim to:
(a) Meet with the offender in a safe, controlled environment;
(b) Give the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim and the victim's family; and
(c) Negotiate a restitution agreement for the damages incurred by the victim as a result of the offense.
(3) A negotiated restitution agreement may be submitted to the court for its consideration at the time of disposition.
Sec. 5. RCW 9.94A.110 and 1988 c 60 s 1 are each amended to read as follows:
Before imposing a sentence upon a defendant, the court shall conduct a sentencing hearing. The sentencing hearing shall be held within forty court days following conviction. Upon the motion of either party for good cause shown, or on its own motion, the court may extend the time period for conducting the sentencing hearing. The court shall order the department to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense. The department of corrections shall give priority to presentence investigations for sexual offenders. The court shall consider the presentence reports and restitution agreement reached pursuant to section 4 of this act, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed. If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record. Copies of all presentence reports presented to the sentencing court and all written findings of facts and conclusions of law as to sentencing entered by the court shall be sent to the department by the clerk of the court at the conclusion of the sentencing and shall accompany the offender if the offender is committed to the custody of the department. Court clerks shall provide, without charge, certified copies of documents relating to criminal convictions requested by prosecuting attorneys.
Sec. 6. RCW 9.94A.150 and 1990 c 3 s 202 are each amended to read as follows:
No person serving a sentence imposed pursuant to this chapter and committed to the custody of the department shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows:
(1) Except as otherwise provided for in subsection (2) of this section, the term of the sentence of an offender committed to a correctional facility operated by the department, may be reduced by earned early release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined. The earned early release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction. The correctional agency shall not credit the offender with earned early release credits in advance of the offender actually earning the credits. Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration. If an offender is transferred from a county jail to the department of corrections, the county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned early release time. In the case of an offender convicted of a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990, the aggregate earned early release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned early release time exceed one-third of the total sentence;
(2) A person convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned early release time pursuant to subsection (1) of this section;
(3) An offender may leave a correctional facility pursuant to an authorized furlough or leave of absence. In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers;
(4) The governor, upon recommendation from the clemency and pardons board, may grant an extraordinary release for reasons of serious health problems, senility, advanced age, extraordinary meritorious acts, or other extraordinary circumstances;
(5) No more than the final six months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing him or herself in the community unless sentenced under RCW 9.94A.380, in which case the final sixteen months of the sentence may be served in partial confinement;
(6) The governor may pardon any offender;
(7) The department of corrections may release an offender from confinement any time within ten days before a release date calculated under this section; and
(8) An offender may leave a correctional facility prior to completion of his sentence if the sentence has been reduced as provided in RCW 9.94A.160.
Sec. 7. RCW 9.94A.380 and 1988 c 157 s 4 and 1988 c 155 s 3 are each reenacted and amended to read as follows:
to total confinement are available for offenders with sentences of ((
two years or less. These alternatives include the following
sentence conditions that the court may order as substitutes for total
confinement: (1) One day of partial confinement may be substituted for one day
of total confinement; (2) in addition, for offenders convicted of nonviolent
offenses only, eight hours of community service may be substituted for one day
of total confinement, with a maximum conversion limit of (( two)) four
hundred (( forty)) eighty hours or (( thirty)) sixty
days. Community service hours must be completed within the period of community
supervision or a time period specified by the court, which shall not exceed
twenty-four months, pursuant to a schedule determined by the department.
When imposing alternatives to total confinement, the court shall incorporate appropriate provisions for restitution and shall consider any negotiated restitution agreement resulting from a victim-offender mediation program. The court may require the offender to:
(a) Serve a period of confinement in the county jail, such time may be served on weekends;
(b) Receive treatment, either inpatient or outpatient, that meets the requirements of chapter 70.96A RCW, such treatment may include the use of acupuncture as part of a detoxification process;
(c) Stay out of areas with high drug usage and/or distribution;
(d) Refrain from crime-related activities;
(e) Pay any legal financial obligation that results from a felony conviction;
(f) Pay the actual costs of urinalysis testing, breathalyzers, and other forensic analysis, unless indigent;
(g) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;
(h) Pursue a prescribed, secular course of study or vocational training;
(i) Devote time to specific employment or occupation; or
(j) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.
The court may establish such other conditions as the court deems appropriate to the offender and the offense, including the sanctions that will be imposed for violations of the terms of the sentence as provided for in RCW 9.94A.200.
When imposing alternatives to total confinement pursuant to this section in such cases where total confinement would otherwise exceed twelve months under the sentencing guidelines, the court shall require that the alternative provide for adequate security for the public through the department's supervision of the offender at the offender's highest level of supervision, or by the use of electronically monitored house arrest or by such other means as may be developed to protect the general public. The court shall also make written findings that the use of such alternative does not impose an unreasonable risk to the safety of the general public.
sentences of nonviolent offenders for ((
one)) two years or
less, the court shall consider and give priority to available alternatives to
total confinement and shall state its reasons in writing on the judgment and
sentence form if the alternatives are not used.
Sec. 8. RCW 9.94A.390 and 1990 c 3 s 603 are each amended to read as follows:
If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4).
The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
(1) Mitigating Circumstances
(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.
(b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.
(c) Since his or her detection, the respondent has met the victim and negotiated a restitution agreement pursuant to section 4 of this act, provided that this mitigating factor is insufficient, by itself, to justify a sentence less severe than one within the standard range.
(d) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.
(e) The defendant, with no apparent predisposition to do so, was induced
by others to participate in the crime.
(f) The defendant's capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the law, was
significantly impaired (voluntary use of drugs or alcohol is excluded).
(g) The offense was principally accomplished by another person and the
defendant manifested extreme caution or sincere concern for the safety or
well-being of the victim.
(h) The operation of the multiple offense policy of RCW 9.94A.400
results in a presumptive sentence that is clearly excessive in light of the
purpose of this chapter, as expressed in RCW 9.94A.010.
(i) The defendant or the defendant's children suffered a continuing
pattern of physical or sexual abuse by the victim of the offense and the
offense is a response to that abuse.
(j) The offense was a violation of the uniform controlled substances act, chapter 69.50 RCW, and
(i) The offense involved a single transaction in which a controlled substance was sold, transferred, or possessed with intent to do so; or
(ii) The offense did not involve a high degree of sophistication or significant planning and did not occur over a lengthy period of time or involve a broad geographic area of disbursement.
(2) Aggravating Circumstances
(a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.
(b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.
(c) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:
(i) The current offense involved multiple victims or multiple incidents per victim;
(ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;
(iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
(d) The current offense was a major violation of the uniform controlled substances act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; or
(ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or
(iii) The current offense involved the manufacture of controlled substances for use by other parties; or
(iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or
(v) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or
(vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional); or
(e) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.127;
(f) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time; or
(g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
NEW SECTION. Sec. 9. A new section is added to chapter 13.40 RCW to read as follows:
(1) When a probation counselor receives a request for a predisposition study, he or she shall refer the case to a victim-offender mediation program or, if such a program is not available in the county, a dispute resolution center. However, such a referral need be made only if the current offense is one involving the property of a victim, and referral need not be made if: (a) The offender is a serious offender as defined in RCW 13.40.020, (b) the current offense would, if committed by an adult, be a sex offense or a violent offense as defined in RCW 9.94A.030, or (c) a meeting between victim and offender would be clearly impractical or not feasible.
(2) Neither the victim nor the offender may be required to participate in the program but, if both are willing to participate, and, in the case of a victim under the age of eighteen, a parent or legal guardian of the victim is also willing to participate, the victim-offender mediation program or dispute resolution center shall provide an opportunity for the victim to:
(a) Meet with the offender in a safe, controlled environment;
(b) Give the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim and the victim's family; and
(c) Negotiate a restitution agreement for the damages incurred by the victim as a result of the offense. The agreement may be submitted to the court for its consideration at the time of disposition.
Sec. 10. RCW 13.40.150 and 1990 c 3 s 605 are each amended to read as follows:
(1) In disposition hearings all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though such evidence may not be admissible in a hearing on the information. The youth or the youth's counsel and the prosecuting attorney shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports when such individuals are reasonably available, but sources of confidential information need not be disclosed. The prosecutor and counsel for the juvenile may submit recommendations for disposition.
(2) For purposes of disposition:
(a) Violations which are current offenses count as misdemeanors;
(b) Violations may not count as part of the offender's criminal history;
(c) In no event may a disposition for a violation include confinement.
(3) Before entering a dispositional order as to a respondent found to have committed an offense, the court shall hold a disposition hearing, at which the court shall:
(a) Consider the facts supporting the allegations of criminal conduct by the respondent;
(b) Consider information and arguments offered by parties and their counsel;
(c) Consider any predisposition reports;
(d) Afford the respondent and the respondent's parent, guardian, or custodian an opportunity to speak in the respondent's behalf;
(e) Allow the victim or a representative of the victim and an investigative law enforcement officer to speak;
(f) Consider any restitution agreement reached pursuant to section 9 of this act;
(g) Determine the amount of restitution owing to the victim, if any;
(h) Determine whether the respondent is a serious offender, a middle
offender, or a minor or first offender;
(i) Consider whether or not any of the following mitigating factors
(i) The respondent's conduct neither caused nor threatened serious bodily injury or the respondent did not contemplate that his or her conduct would cause or threaten serious bodily injury;
(ii) The respondent acted under strong and immediate provocation;
(iii) The respondent was suffering from a mental or physical condition that significantly reduced his or her culpability for the offense though failing to establish a defense;
Prior to his or her detection, the respondent compensated or made a good faith
attempt to compensate the victim for the injury or loss sustained; ((
(v) Since his or her detection, the respondent has met the victim and negotiated a restitution agreement pursuant to section 9 of this act, provided that this mitigating factor is insufficient, by itself, to justify a sentence less severe than one within the standard range; and
(vi) There has been at least one year between the respondent's current offense and any prior criminal offense;
(j) Consider whether or not any of the following aggravating factors
(i) In the commission of the offense, or in flight therefrom, the respondent inflicted or attempted to inflict serious bodily injury to another;
(ii) The offense was committed in an especially heinous, cruel, or depraved manner;
(iii) The victim or victims were particularly vulnerable;
(iv) The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement;
(v) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.127;
(vi) The respondent was the leader of a criminal enterprise involving several persons; and
(vii) There are other complaints which have resulted in diversion or a finding or plea of guilty but which are not included as criminal history.
(4) The following factors may not be considered in determining the punishment to be imposed:
(a) The sex of the respondent;
(b) The race or color of the respondent or the respondent's family;
(c) The creed or religion of the respondent or the respondent's family;
(d) The economic or social class of the respondent or the respondent's family; and
(e) Factors indicating that the respondent may be or is a dependent child within the meaning of this chapter.
(5) A court may not commit a juvenile to a state institution solely because of the lack of facilities, including treatment facilities, existing in the community.
Sec. 11. RCW 13.40.190 and 1987 c 281 s 5 are each amended to read as follows:
(1) In its dispositional order, the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. In addition, restitution may be ordered for loss or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which, pursuant to a plea agreement, are not prosecuted. The payment of restitution shall be in addition to any punishment which is imposed pursuant to the other provisions of this chapter. The court may determine the amount, terms, and conditions of the restitution. The court shall consider any restitution agreement reached pursuant to section 9 of this act. Restitution may include the costs of counseling reasonably related to the offense. If the respondent participated in the crime with another person or other persons, all such participants shall be jointly and severally responsible for the payment of restitution. The court may not require the respondent to pay full or partial restitution if the respondent reasonably satisfies the court that he or she does not have the means to make full or partial restitution and could not reasonably acquire the means to pay such restitution. In cases where an offender has been committed to the department for a period of confinement exceeding fifteen weeks, restitution may be waived.
(2) If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order. The restitution to victims named in the order shall be paid prior to any payment for other penalties or monetary assessments.
(3) A respondent under obligation to pay restitution may petition the court for modification of the restitution order.
Sec. 12. RCW 9.94A.030 and 1990 c 3 s 602 are each amended to read as follows:
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department of corrections, means that the department is responsible for monitoring and enforcing the offender's sentence with regard to the legal financial obligation, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account.
(2) "Commission" means the sentencing guidelines commission.
(3) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions.
(4) "Community custody" means that portion of an inmate's sentence of confinement in lieu of earned early release time served in the community subject to controls placed on the inmate's movement and activities by the department of corrections.
(5) "Community placement" means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.
(6) "Community service" means compulsory service, without compensation, performed for the benefit of the community by the offender.
(7) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed pursuant to this chapter by a court. For first-time offenders, the supervision may include crime-related prohibitions and other conditions imposed pursuant to RCW 9.94A.120(5). For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.
(8) "Confinement" means total or partial confinement as defined in this section.
(9) "Conviction" means an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.
(10) "Court-ordered legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction.
(11) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct.
(12) (a) "Criminal history" means the list of a defendant's prior convictions, whether in this state, in federal court, or elsewhere. The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.
(b) "Criminal history" shall always include juvenile convictions for sex offenses and shall also include a defendant's other prior convictions in juvenile court if: (i) The conviction was for an offense which is a felony or a serious traffic offense and is criminal history as defined in RCW 13.40.020(6)(a); (ii) the defendant was fifteen years of age or older at the time the offense was committed; and (iii) with respect to prior juvenile class B and C felonies or serious traffic offenses, the defendant was less than twenty-three years of age at the time the offense for which he or she is being sentenced was committed.
(13) "Department" means the department of corrections.
(14) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community service work, or dollars or terms of a legal financial obligation. The fact that an offender through "earned early release" can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.
(15) "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of any amount required by law to be withheld. For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.
(16) "Drug offense" means:
(a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403);
(b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or
(c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection.
(17) "Escape" means:
(a) Escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful failure to return from work release (RCW 72.65.070), or willful failure to comply with any limitations on the inmate's movements while in community custody (RCW 72.09.310); or
(b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection.
(18) "Felony traffic offense" means:
(a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4)); or
(b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection.
(19) "Fines" means the requirement that the offender pay a specific sum of money over a specific period of time to the court.
(20) (a) "First-time offender" means any person who is convicted of a felony (i) not classified as a violent offense or a sex offense under this chapter, or (ii) that is not the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in schedule I or II that is a narcotic drug, and except as provided in (b) of this subsection, who previously has never been convicted of a felony in this state, federal court, or another state, and who has never participated in a program of deferred prosecution for a felony offense.
(b) For purposes of (a) of this subsection, a juvenile adjudication for an offense committed before the age of fifteen years is not a previous felony conviction except for adjudications of sex offenses.
(21) "Nonviolent offense" means an offense which is not a violent offense.
(22) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.
"Partial confinement" means confinement for no more than ((
two years in a facility or institution operated or utilized under
contract by the state or any other unit of government, or, if home detention
has been ordered by the court, in the residence of either the defendant or a
member of the defendant's immediate family, for a substantial portion of each
day with the balance of the day spent in the community. Partial confinement
includes work release and home detention as defined in this section.
(24) "Postrelease supervision" is that portion of an offender's community placement that is not community custody.
(25) "Restitution" means the requirement that the offender pay a specific sum of money over a specific period of time to the court as payment of damages. The sum may include both public and private costs. The imposition of a restitution order does not preclude civil redress.
(26) "Serious traffic offense" means:
(a) Driving while intoxicated (RCW 46.61.502), actual physical control while intoxicated (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)); or
(b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection.
(27) "Serious violent offense" is a subcategory of violent offense and means:
(a) Murder in the first degree, homicide by abuse, murder in the second degree, assault in the first degree, kidnapping in the first degree, or rape in the first degree, or an attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or
(b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection.
(28) "Sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.
(29) "Sex offense" means:
(a) A felony that is a violation of chapter 9A.44 RCW or RCW 9A.64.020 or 9.68A.090 or that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;
(b) A felony with a finding of sexual motivation under RCW 9.94A.127; or
(c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.
(30) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.
(31) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.
(32) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.
(33) "Violent offense" means:
(a) Any of the following felonies, as now existing or hereafter amended: Any felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, kidnapping in the second degree, arson in the second degree, assault in the second degree, extortion in the first degree, robbery in the second degree, vehicular assault, and vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;
(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and
(c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection.
(34) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school. Participation in work release shall be conditioned upon the offender attending work or school at regularly defined hours and abiding by the rules of the work release facility.
"Home detention" means a program of partial confinement available to
offenders wherein the offender is confined in a private residence subject to
electronic surveillance. Home detention may not be imposed for offenders
convicted of a violent offense, any sex offense, any drug offense, reckless
burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050,
assault in the third degree as defined in RCW 9A.36.031, unlawful imprisonment
as defined in RCW 9A.40.040, or harassment as defined in RCW 9A.46.020. Home
detention may be imposed for offenders convicted of possession of a controlled
substance (RCW 69.50.401(d)) or forged prescription for a controlled substance
(RCW 69.50.403) if the offender fulfills the participation conditions set forth
in this subsection and is monitored for drug use by treatment alternatives to
street crime (TASC) or a comparable court or agency-referred program. Home
detention may be imposed for offenders convicted of burglary in the second
degree as defined in RCW 9A.52.030 or residential burglary conditioned upon the
offender: (a) Successfully completing twenty-one days in a work release
program, (b) having no convictions for burglary in the second degree or
residential burglary during the preceding two years and not more than two prior
convictions for burglary or residential burglary, (c) having no convictions for
a violent felony offense during the preceding two years and not more than two
prior convictions for a violent felony offense, (d) having no prior charges of
escape, and (e) fulfilling the other conditions of the home detention program.
Participation in a home detention program shall be conditioned upon: ((
The offender obtaining or maintaining current employment or attending a regular
course of school study at regularly defined hours, or the offender performing
parental duties to offspring or minors normally in the custody of the
offender(( , (b))); abiding by the rules of the home detention
program(( ,)); and (( (c))) compliance with court-ordered
legal financial obligations. The home detention program may also be made
available to offenders whose charges and convictions do not otherwise
disqualify them if medical or health-related conditions, concerns or treatment
would be better addressed under the home detention program, or where the health
and welfare of the offender, other inmates, or staff would be jeopardized by
the offender's incarceration. Participation in the home detention program for
medical or health-related reasons is conditioned on the offender abiding by the
rules of the home detention program and complying with court-ordered
Sec. 13. RCW 9.94A.040 and 1986 c 257 s 18 are each amended to read as follows:
(1) A sentencing guidelines commission is established as an agency of state government.
(2) The commission shall, following a public hearing or hearings:
(a) Devise a series of recommended standard sentence ranges for all felony offenses and a system for determining which range of punishment applies to each offender based on the extent and nature of the offender's criminal history, if any;
(b) Devise recommended prosecuting standards in respect to charging of offenses and plea agreements; and
(c) Devise recommended standards to govern whether sentences are to be served consecutively or concurrently.
(3) Each of the commission's recommended standard sentence ranges shall include one or more of the following: Total confinement, partial confinement, community supervision, community service, and a fine.
(4) In devising the standard sentence ranges of total and partial confinement under this section, the commission is subject to the following limitations:
(a) If the maximum term in the range is one year or less, the minimum term in the range shall be no less than one-third of the maximum term in the range, except that if the maximum term in the range is ninety days or less, the minimum term may be less than one-third of the maximum;
(b) If the maximum term in the range is greater than one year, the minimum term in the range shall be no less than seventy-five percent of the maximum term in the range; and
(c) The maximum term of confinement in a range may not exceed the statutory maximum for the crime as provided in RCW 9A.20.020.
(5) In carrying out its duties under subsection (2) of this section, the commission shall give consideration to the existing guidelines adopted by the association of superior court judges and the Washington association of prosecuting attorneys and the experience gained through use of those guidelines. The commission shall emphasize confinement for the violent offender and alternatives to total confinement for the nonviolent offender.
(6) This commission shall conduct a study to determine the capacity of correctional facilities and programs which are or will be available. While the commission need not consider such capacity in arriving at its recommendations, the commission shall project whether the implementation of its recommendations would result in exceeding such capacity. If the commission finds that this result would probably occur, then the commission shall prepare an additional list of standard sentences which shall be consistent with such capacity.
(7) The commission shall in conjunction with the department of corrections conduct a study and make a report to the legislature no later than December 1, 1991, on the feasibility of establishing a system of monetary fines based upon both the seriousness of the offense and the financial resources of the offender as sanctions. This study and report shall:
(a) Review the experiences of other jurisdictions with this type of sanction;
(b) Evaluate the types of offenses for which this type of sanction might be appropriate;
(c) Evaluate the impact this type of sanction might have on levels of incarceration, both in jail and prison facilities in the state of Washington;
(d) Estimate the potential revenues which could be obtained from such a system; and
(e) Propose appropriate legislation to implement such a system.
(8) The commission may recommend to the legislature revisions or modifications to the standard sentence ranges and other standards. If implementation of the revisions or modifications would result in exceeding the capacity of correctional facilities, then the commission shall accompany its recommendation with an additional list of standard sentence ranges which are consistent with correction capacity.
(9) The commission shall study the existing criminal code and from time
to time make recommendations to the legislature for modification.
(10) The commission shall exercise its duties under this section in
conformity with chapter 34.05 RCW, as now existing or hereafter amended.
NEW SECTION. Sec. 14. A new section is added to chapter 72.09 RCW to read as follows:
The secretary shall manage a pilot monetary fines program in a minimum of two jurisdictions. The secretary shall consult with the sentencing guidelines commission, in the design of the pilot program. The secretary shall establish a separate account to pay for the operation of the pilot program and shall place a portion of supervision fees and/or monetary fines collected into the account.
Sec. 15. RCW 72.09.050 and 1987 c 312 s 4 are each amended to read as follows:
The secretary shall manage the department of corrections and shall be responsible for the administration of adult correctional programs, including but not limited to the operation of all state correctional institutions or facilities used for the confinement of convicted felons. In addition, the secretary shall have broad powers to enter into agreements with any federal agency, or any other state, or any Washington state agency or local government providing for the operation of any correctional facility or program for persons convicted of felonies or misdemeanors or for juvenile offenders. Such agreements for counties with community corrections boards shall be required in the community corrections plan pursuant to RCW 72.09.300. The agreements may provide for joint operation or operation by the department of corrections, alone, or by any of the other governmental entities, alone. The secretary may employ persons to aid in performing the functions and duties of the department. The secretary may delegate any of his functions or duties to department employees. The secretary is authorized to promulgate standards for the department of corrections within appropriation levels authorized by the legislature.
The secretary shall file with the legislature no later than December 1 of each year beginning with December 1, 1992, a report on recidivism. This report shall cover the preceding calendar year and shall include: (1) The total number of offenders under the jurisdiction of the department as of the first day of the year that is the subject of the report, reflecting subtotals in the aggregate by type of sanction and under each type of sanction by type of crime; (2) the same information as reported under subsection (1) of this section as of the first day of the year following the year that is the subject of the report; (3) the number of offenders released from the jurisdiction of the department by the categories indicated under subsection (1) of this section during the subject year; (4) the number of offenders who have come under the jurisdiction of the department by the categories indicated under subsection (1) of this section during the subject year; (5) for those offenders reported under subsection (4) of this section, the report shall indicate (a) whether they have ever previously been under the jurisdiction of the department or any similar department or agency in any other state or nation, (b) the type of prior crime or crimes and prior sanctions for each such offender, and (c) the duration of time since they had previously been released. "Type of sanction" as used in this section means total confinement, partial confinement, home detention, work release, community supervision, or other status under the jurisdiction of the department.
Pursuant to the authority granted in chapter 34.05 RCW, the secretary shall adopt rules providing for inmate restitution when restitution is determined appropriate as a result of a disciplinary action.
NEW SECTION. Sec. 16. (1) This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1991.