SUBSTITUTE SENATE BILL 5739
State of Washington 52nd Legislature 1991 Regular Session
By Senate Committee on Ways & Means (originally sponsored by Senators Anderson, Talmadge, von Reichbauer, McMullen, Amondson, Johnson, Oke, L. Smith and Sutherland).
Read first time March 11, 1991.
AN ACT Relating to juvenile serious habitual offenders; amending RCW 13.50.050; adding a new chapter to Title 13 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The legislature finds that a substantial and disproportionate amount of serious crime is committed by a relatively small number of chronic juvenile offenders commonly known as serious habitual offenders. In enacting this chapter the legislature intends to support increased efforts by the juvenile justice system comprised of law enforcement, prosecuting attorneys, probation departments, juvenile courts, schools, and the division of juvenile rehabilitation to identify these offenders early in their careers, and to work cooperatively to investigate and record their activities, prosecute them aggressively, sentence them appropriately, and to supervise them intensively in institutions and in the community. The legislature further supports increased interagency efforts to gather comprehensive data and actively disseminate it to the agencies in the juvenile justice system, to produce more informed decisions by all agencies in that system through organizational and operational techniques that have already proven their effectiveness in this and other states.
NEW SECTION. Sec. 2. (1) There is established within the department of community development a program of financial assistance for law enforcement, prosecuting attorneys, probation departments, and schools, designated the "serious habitual offender program." All funds appropriated to the department of community development for the purposes of this chapter shall be administered and disbursed by the department, and shall, to the greatest extent feasible, be coordinated or consolidated with federal funds that may be made available for these purposes. Funding for this program shall include the cost to the department of community development for administering the grants.
(2) Allocation and award of funds for the purposes of this chapter shall be made upon application by a prosecuting attorney, a local law enforcement agency, a probation department, or a school district.
A policy board shall be established consisting of one representative each from prosecuting attorneys, law enforcement agencies, probation departments, and school districts, and two representatives from the department of social and health services, one being from the division of juvenile rehabilitation. The policy board shall assist the department of community development in an advisory capacity in the selection of applicants to receive grants and oversee the serious habitual offender program. The department may allocate and award funds to those agencies that establish programs in substantial compliance with the policies and criteria set forth in this chapter.
The applicant agency shall use the funds to create an information gathering and analysis unit responsible for the identification of serious habitual offenders and for the dissemination of information about the activities of those offenders to the criminal justice system. This unit shall participate in the planning, support, and assistance of activities required in sections 4 through 6 of this act. Funds disbursed under this chapter shall not supplant local funds that would, in absence of the program established by this chapter, be made available to support the juvenile justice system.
NEW SECTION. Sec. 3. (1) For a person to be the subject of the efforts of programs established pursuant to this chapter, the person must have been convicted or entered diversion for a crime and have:
(a) Accumulated five or more total arrests; with at least three arrests for crimes chargeable as felonies and at least three of those five arrests having occurred within the preceding twelve months;
(b) Accumulated ten or more total arrests; with at least two arrests for crimes chargeable as felonies and at least three arrests having occurred within the preceding twelve months;
(c) Been arrested at least once for three or more burglaries, robberies, or sexual assaults within the preceding twelve months; or
(d) Accumulated ten or more total arrests; with at least eight arrests for misdemeanor crimes of theft, assault, battery, narcotics or controlled substance possession, substance abuse, or use or possession of weapons, and at least three of those arrests having occurred within the preceding twelve months.
(2) Arrests for infractions or conduct described as status offenses shall not be utilized in determining whether an individual is described in subsection (1) of this section. All arrests used in determining eligibility for selection for program participation that did not result in a filing of charges by the prosecutor's office shall be certified by the prosecutor as having been substantiated by probable cause.
(3) In applying the selection criteria of this section, a program may elect to limit its efforts to persons described in one or more of the categories listed in subsection (1) of this section, or specified felonies, if crime statistics demonstrate that the persons so identified present a particularly serious problem in the county, or that the incidence of the felonies so specified present a particularly serious problem in the county. The above definitions are minimum standards for identifying serious habitual offenders and do not preclude program agencies from establishing stricter criteria in identifying serious habitual offenders.
NEW SECTION. Sec. 4. Programs funded under this chapter shall adopt and pursue the following policies:
(1) Each participating law enforcement agency shall do all of the following:
(a) Gather data on identified serious habitual offenders.
(b) Compile data into a format usable state-wide by law enforcement, prosecutors, probation officers, schools, and courts pursuant to interagency agreement.
(c) Regularly update data and disseminate data to criminal justice system agencies as needed.
(d) Establish local policies in cooperation with the prosecutor, the probation officer, schools, the department of social and health services, and the juvenile court regarding data collection, arrest, and detention of serious habitual offenders.
(e) Provide support and assistance to other agencies engaged in the program.
(2) Each participating prosecuting attorney's office shall do all of the following:
(a) File charges based on the most serious provable offenses of each arrest of a serious habitual offender.
(b) Use all reasonable prosecutorial efforts to resist the release, where appropriate, of the serious habitual offender at all stages of the prosecution.
(c) Seek an admission of guilt on all offenses charged in the informations against the offender. The only cases in which the prosecutor may request the court to reduce or dismiss the charges are cases in which the prosecutor decides there is insufficient evidence to prove the state's case, the testimony of a material witness cannot be obtained, or a reduction or dismissal will not result in a substantial change in sentence, or prosecution will not serve the public interest. In those cases, the prosecutor shall inform the program agencies stating the specific factual and legal basis for such a disposition.
(d) Prosecute aggressively all cases involving serious habitual offenders, whereby the prosecutor who makes the initial filing decision or appearance on such a case shall perform all subsequent court appearances on that case through its conclusion, including the disposition phase.
(e) Make all reasonable prosecutorial efforts to persuade the court to impose the most appropriate sentence upon such an offender at the time of disposition.
(f) Make all reasonable prosecutorial efforts to reduce the time between arrest and disposition of the charge.
(g) Act as a liaison with the court and other criminal justice agencies to establish local policies regarding the program and to ensure interagency cooperation in the planning and implementation of the program.
(h) Provide support and assistance to other agencies engaged in the program.
(3) Each participating juvenile probation department shall do all of the following:
(a) Cooperate in gathering data for use by all participating agencies pursuant to interagency agreement.
(b) Give priority to detaining serious habitual offenders in custody who lack proper and effective parental care and control and who have no one willing to assume or capable of assuming the parental role and the serious habitual offender is serving a sentence, on bail, or in violation of a court order.
(c) Consider the data relating to serious habitual offenders when making all decisions regarding the identified individual and include relevant data in written reports to the court.
(d) File information on violations of probation with the court immediately.
(e) Establish local policies in cooperation with law enforcement and the prosecuting attorney, schools, and the juvenile court regarding the program and provide support and assistance to other agencies engaged in the program.
(4) For the purposes of this chapter, school districts shall be juvenile care agencies as defined in RCW 13.50.010 and shall do all of the following:
(a) Cooperate in providing data on students identified by definition of this chapter as serious habitual offenders, for profiling by participating agencies pursuant to interagency agreement. Such data shall include but not be limited to past and current accounts of truancy, disruptive behavior, disciplinary actions, and suspension or expulsion history.
(b) Report all crimes that are committed on campus by serious habitual offenders to law enforcement.
(c) Report all violations of probation committed on campus by serious habitual offenders to the probation officer or program coordinator.
(d) Provide educational supervision and social or educational services appropriate to serious habitual offenders attending schools.
(e) Establish local policies in cooperation with law enforcement, the prosecuting attorney, the probation department, and the juvenile court regarding the program and provide support and assistance to other agencies engaged in the program.
(f) Special services units of participating school districts shall have the option of notifying participating agencies under this chapter, individually or collectively, about students of concern which have come to their attention as being potentially at risk of becoming serious habitual offenders, the purpose of which shall be to utilize the combined agencies' resources for deterring juveniles from acquiring serious habitual offender status.
(5) The department of social and health services shall do all of the following:
(a) Coordinate with participating agencies under this chapter per interagency agreement to identify serious habitual offenders.
(b) Cooperate in providing data on juveniles identified by this chapter as serious habitual offenders for profiling by participating agencies pursuant to interagency agreement. Such data shall include, but not be limited to, child protective services reports involving the serious habitual offender, contacts, state or county-funded intelligence and psychological evaluations, and group home placement behavior reports.
(6) By January 1, 1993, the participating funded programs shall submit to the department of community development a written report regarding achievement of program goals. The department of community development will then submit to the legislature a written summary of the reports. The reports, individually and collectively shall do all of the following:
(a) Document the amount of serious crime committed by a relatively small number of serious habitual offenders.
(b) Provide statistical documentation regarding the total number of juveniles in the program, the types of offenses committed, the manner in which cases are disposed, and a statistical profile of the average juvenile who qualifies for the program.
(c) Evaluate program costs.
(d) Review new operational and organizational techniques used in gathering and disseminating information, and in prosecution and in monitoring and supervising serious habitual offenders.
(e) Compare this program and its effectiveness with the techniques and methods used prior to the implementation of the program.
NEW SECTION. Sec. 5. The division of juvenile rehabilitation shall give priority to institutional placement of convicted offenders sentenced to sixteen weeks or more and identified as serious habitual offenders. Serious habitual offenders sentenced to thirteen weeks or more shall not be placed in community-based group homes or other nonsecure facilities.
NEW SECTION. Sec. 6. The administrator for the courts shall provide participating agencies providing juvenile court services with monthly print-outs identifying juveniles by name and date of birth who have three or more arrests for the calendar year within the county, the number of arrests for the calendar year, and the total lifetime arrest violations of the identified juveniles; the purpose of which will be to assist the program agencies in identifying the juveniles who are serious habitual offenders.
NEW SECTION. Sec. 7. This chapter authorizes the inspection of juvenile court records, probation, and division of juvenile rehabilitation records, prosecuting attorney records, school records, and law enforcement records by the participating law enforcement agency charged with the compilation of the data relating to serious habitual offenders into the format used by all participating agencies. Confidentiality of records information shall not apply to serious habitual offenders within the scope of information exchange between law enforcement, juvenile justice, and juvenile care agencies. Neither these records provided to the program agencies, nor the records developed from the information shall be available for public disclosure or inspection.
NEW SECTION. Sec. 8. Within one month of implementation of the program, all participating agencies in a county shall execute a written interagency agreement outlining their role in the program, including the duties they will perform, the duties other agencies will perform for and with them, and the categories of information to be collected and the plan for its distribution and use. All participating agencies will meet no less than once each month to plan, implement, and refine the operation of the program and to exchange information about individuals subject to the program or other related topics.
NEW SECTION. Sec. 9. Law enforcement agencies and prosecuting attorneys participating in programs pursuant to this chapter shall adopt procedures to require a check of juvenile criminal history of all adults whose cases are presented to the prosecuting attorney's office for filing. The juvenile criminal history shall be considered by the prosecuting attorney in the charging decision and establishing the prosecuting attorney's position on the appropriate plea and sentence.
Sec. 10. RCW 13.50.050 and 1990 c 3 s 125 are each amended to read as follows:
(1) This section governs records relating to the commission of juvenile offenses, including records relating to diversions.
(2) The official juvenile court file of any alleged or proven juvenile offender shall be open to public inspection, unless sealed pursuant to subsection (11) of this section.
(3) All records other than the official juvenile court file are confidential and may be released only as provided in this section, section 7 of this act, RCW 13.50.010, 13.40.215, and 4.24.550.
(4) Except as otherwise provided in this section, section 7 of this act, and RCW 13.50.010, records retained or produced by any juvenile justice or care agency may be released to other participants in the juvenile justice or care system only when an investigation or case involving the juvenile in question is being pursued by the other participant or when that other participant is assigned the responsibility for supervising the juvenile.
(5) Except as provided in RCW 4.24.550, information not in an official juvenile court file concerning a juvenile or a juvenile's family may be released to the public only when that information could not reasonably be expected to identify the juvenile or the juvenile's family.
(6) Notwithstanding any other provision of this chapter, the release, to the juvenile or his or her attorney, of law enforcement and prosecuting attorneys' records pertaining to investigation, diversion, and prosecution of juvenile offenses shall be governed by the rules of discovery and other rules of law applicable in adult criminal investigations and prosecutions.
(7) The juvenile court and the prosecutor may set up and maintain a central record-keeping system which may receive information on all alleged juvenile offenders against whom a complaint has been filed pursuant to RCW 13.40.070 whether or not their cases are currently pending before the court. The central record-keeping system may be computerized. If a complaint has been referred to a diversion unit, the diversion unit shall promptly report to the juvenile court or the prosecuting attorney when the juvenile has agreed to diversion. An offense shall not be reported as criminal history in any central record-keeping system without notification by the diversion unit of the date on which the offender agreed to diversion.
(8) Upon request of the victim of a crime or the victim's immediate family, the identity of an alleged or proven juvenile offender alleged or found to have committed a crime against the victim and the identity of the alleged or proven juvenile offender's parent, guardian, or custodian and the circumstance of the alleged or proven crime shall be released to the victim of the crime or the victim's immediate family.
(9) Subject to the rules of discovery applicable in adult criminal prosecutions, the juvenile offense records of an adult criminal defendant or witness in an adult criminal proceeding shall be released upon request to prosecution and defense counsel after a charge has actually been filed. The juvenile offense records of any adult convicted of a crime and placed under the supervision of the adult corrections system shall be released upon request to the adult corrections system.
(10) In any case in which an information has been filed pursuant to RCW 13.40.100 or a complaint has been filed with the prosecutor and referred for diversion pursuant to RCW 13.40.070, the person the subject of the information or complaint may file a motion with the court to have the court vacate its order and findings, if any, and, subject to subsection (24) of this section, order the sealing of the official juvenile court file, the social file, and records of the court and of any other agency in the case.
(11) The court shall grant the motion to seal records made pursuant to subsection (10) of this section if it finds that:
(a) Two years have elapsed from the later of: (i) Final discharge of the person from the supervision of any agency charged with supervising juvenile offenders; or (ii) from the entry of a court order relating to the commission of a juvenile offense or a criminal offense;
(b) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense; and
(c) No proceeding is pending seeking the formation of a diversion agreement with that person.
(12) The person making a motion pursuant to subsection (10) of this section shall give reasonable notice of the motion to the prosecution and to any person or agency whose files are sought to be sealed.
(13) If the court grants the motion to seal made pursuant to subsection (10) of this section, it shall, subject to subsection (24) of this section, order sealed the official juvenile court file, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
(14) Inspection of the files and records included in the order to seal may thereafter be permitted only by order of the court upon motion made by the person who is the subject of the information or complaint, except as otherwise provided in RCW 13.50.010(8) and subsection (24) of this section.
(15) Any adjudication of a juvenile offense or a crime subsequent to sealing has the effect of nullifying the sealing order. Any conviction for any adult felony subsequent to the sealing has the effect of nullifying the sealing order for the purposes of chapter 9.94A RCW for any juvenile adjudication of guilt for a class A offense or a sex offense as defined in RCW 9.94A.030.
(16) In any case in which an information has been filed pursuant to RCW 13.40.100 or a complaint has been filed with the prosecutor and referred for diversion pursuant to RCW 13.40.070, the person who is the subject of the information or complaint may file a motion with the court to have the court vacate its order and findings, if any, and, subject to subsection (24) of this section, order the destruction of the official juvenile court file, the social file, and records of the court and of any other agency in the case.
(17) The court may grant the motion to destroy records made pursuant to subsection (16) of this section if it finds:
(a) The person making the motion is at least twenty-three years of age;
(b) The person has not subsequently been convicted of a felony;
(c) No proceeding is pending against that person seeking the conviction of a criminal offense; and
(d) The person has never been found guilty of a serious offense.
(18) A person eighteen years of age or older whose criminal history consists of only one referral for diversion may request that the court order the records in that case destroyed. The request shall be granted, subject to subsection (24) of this section, if the court finds that two years have elapsed since completion of the diversion agreement.
(19) If the court grants the motion to destroy records made pursuant to subsection (16) or (18) of this section, it shall, subject to subsection (24) of this section, order the official juvenile court file, the social file, and any other records named in the order to be destroyed.
(20) The person making the motion pursuant to subsection (16) or (18) of this section shall give reasonable notice of the motion to the prosecuting attorney and to any agency whose records are sought to be destroyed.
(21) Any juvenile to whom the provisions of this section may apply shall be given written notice of his or her rights under this section at the time of his or her disposition hearing or during the diversion process.
(22) Nothing in this section may be construed to prevent a crime victim or a member of the victim's family from divulging the identity of the alleged or proven juvenile offender or his or her family when necessary in a civil proceeding.
(23) Any juvenile justice or care agency may, subject to the limitations in subsection (24) of this section and subparagraphs (a) and (b) of this subsection, develop procedures for the routine destruction of records relating to juvenile offenses and diversions.
(a) Records may be routinely destroyed only when the person the subject of the information or complaint has attained twenty-three years of age or older, or is eighteen years of age or older and his or her criminal history consists entirely of one diversion agreement and two years have passed since completion of the agreement.
(b) The court may not routinely destroy the official juvenile court file or recordings or transcripts of any proceedings.
(24) No identifying information held by the Washington state patrol in accordance with chapter 43.43 RCW is subject to destruction or sealing under this section. For the purposes of this subsection, identifying information includes photographs, fingerprints, palmprints, soleprints, toeprints and any other data that identifies a person by physical characteristics, name, birthdate or address, but does not include information regarding criminal activity, arrest, charging, diversion, conviction or other information about a person's treatment by the criminal justice system or about the person's behavior.
NEW SECTION. Sec. 11. If specific funding for the purposes of this act, referencing this act by bill number, is not provided by June 30, 1991, in the omnibus appropriations act, this act shall be null and void.