S-0106.2

SENATE BILL 5293

BySenators Nobles, Darneille, Das, Dhingra, Hasegawa, Keiser, Lovelett, Nguyen, Rivers, Salomon, Van De Wege, and Wilson, C.

AN ACT Relating to mental health sentencing alternatives; amending RCW 9.94A.501; adding a new section to chapter 9.94A 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. A new section is added to chapter 9.94A RCW to read as follows:

(1) A convicted defendant is eligible for the mental disability mandated observation and treatment alternative to incarceration if:

(a) The defendant is convicted of a felony that is not a serious violent offense;

(b) The defendant is diagnosed with a severe and persistent mental health issue recognized by the diagnostic manual in use by mental health professionals at the time of sentencing;

(c) The defendant would benefit from supervision and treatment;

(d) The defendant's sentence could include incarceration; and

(e) The defendant is willing to participate in the sentencing alternative.

(2) A motion for a sentence under this section may be made by the court, the defendant, or the state, but is contingent upon the defendant's agreement to participate in the sentencing alternative. If the sentencing court determines that the defendant is eligible for this alternative, the court may order an examination of the defendant. The court can waive the examination if sufficient information is available regarding the defendant's mental health issue: That information may include previous written reports including reports completed pursuant to chapters 71.05 and 10.77 RCW and written reports from a discharge planner, social worker, or similar professional with mental health expertise.

(3) A written report shall be completed to assist the court in its determination. The written report shall be in the form of a presentence investigation. A report may be ordered on the motion of a party or the court prior to conviction if such a report will facilitate negotiations. The report must contain:

(a) Either a proposed treatment or supervision plan to address the underlying mental health issue, or both;

(b) The recommended frequency and length of treatment;

(c) The name and address of any treatment providers including any person providing medication relating to the mental health diagnosis;

(d) A proposed monitoring plan, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others;

(e) Recommended crime-related prohibitions and affirmative conditions; and

(f) A release of information, signed by the defendant, so that the parties can confirm components of the treatment and monitoring plan.

(4) If the court determines that a sentence under this section is appropriate, the court shall waive imposition of the sentence within the standard range. The court shall impose a term of community custody between 12 and 24 months for any standard range sentence of zero days to 36 months. The court shall impose a term of community custody between 12 months and 36 months for any standard range sentence that is longer than 36 months. The actual length of community custody within these ranges shall be at the discretion of the court.

(a) When the court imposes the term of community custody, the department shall assign the defendant to a community custody officer with mental health training or to a special needs unit or behavioral health unit if one exists.

(b) The court shall impose conditions related to the needs of the defendant, which shall include treatment and supervision in the community. The conditions are set forth in subsection (5) of this section.

(c) The court shall schedule regular progress hearings for the defendant. Progress hearings shall occur as frequently as needed to meet the needs of the defendant.

(d) Before any progress hearing, the department and any treatment provider shall submit a written report informing the parties of the defendant's progress and compliance with treatment. At the progress hearing, the court shall hear from the parties regarding the defendant's compliance and may modify the conditions of community custody if the modification serves the interests of justice and the best interests of the defendant.

(5)(a) If the court imposes this sentencing alternative, the court may impose any condition recommended by any of the written reports regarding the defendant, and such other conditions as the court considers appropriate.

(b) In addition, the court may require the defendant to:

(i) Comply with chemical dependency assessments and treatment recommendations if there is an indication that the defendant has a dual diagnosis which includes mental disability or impairment and substance abuse;

(ii) Comply with urinalysis or breathalyzer monitoring if needed;

(iii) Meet with treatment providers for counseling, behavior management, medication management, assessments, and group therapy treatment as requested by the treatment providers;

(iv) Take medications as prescribed, including monitoring of compliance with medication if needed;

(v) Devote time to specific employment, education, or training if able;

(vi) Remain within prescribed geographical boundaries;

(vii) Notify the court or community corrections officers when changing address, employment, or treatment provider;

(viii) Report as directed to their community corrections officer;

(ix) Sign releases of information with treatment providers to allow for the free exchange of information for the duration of the length of supervision imposed by the court;

(x) Pay court-ordered legal financial obligations;

(xi) Perform community restitution work; and

(xii) Stay out of areas designated by the sentencing court.

(c) The court may prohibit the offender from:

(i) Using alcohol or nonprescribed controlled substances if substance abuse is part of the diagnosis; or alcohol or nonprescribed controlled substances are contraindicated by medications prescribed for management of the mental disability. The court may order the department to monitor for the use of alcohol or nonprescribed controlled substances if the court prohibits use of those substances. The offender may be required to pay a fee of thirty dollars per month to offset the costs of supervision if they are financially able. Under no circumstances shall a person on public assistance or receiving social security be assessed supervision fees;

(ii) Committing any new violations of criminal law.

(6) The court may bring the defendant sentenced under this section back to court at any time to evaluate the defendant's progress with treatment or to determine if any violations have occurred.

(a) If the defendant is returned to court, the court may modify the terms of the community custody or impose sanctions if the court finds that the conditions have been violated or that different or additional terms are in the best interest of the defendant.

(b) The court may order the defendant to serve a term of total confinement for violating the terms of community custody or failing to make satisfactory progress in treatment. Alternatives to total confinement shall be the preferred manner of addressing violations.

(c) The court shall schedule a termination hearing one month prior to the end of the defendant's community custody. A termination hearing may also be scheduled if the department or the state reports that the defendant has violated the terms of community custody imposed by the court. At that hearing, the court may:

(i) Authorize the department to terminate the defendant's community custody status on the expiration date; or

(ii) Continue the hearing to a date before the expiration date of community custody, with or modifying the conditions of community custody; or

(iii) Revoke the sentencing alternative and impose a term of total confinement within the standard sentence range or impose an exceptional sentence below the standard sentencing range if compelling reasons are found by the court or the parties agree to the downward departure. The defendant will receive credit for time served while supervised in the community against any term of total confinement. The court must reduce to writing the substantial and compelling reasons for revocation.

(7) An offender sentenced under the terms of this section shall be subject to all rules relating to earned release time with respect to any period served in total confinement.

(8) Costs of examinations and preparing treatment plans may be paid, at the option of the county, from funds provided to the county from the criminal justice treatment account under RCW 71.24.580.

Sec. 2. RCW 9.94A.501 and 2020 c 275 s 1 are each amended to read as follows:

(1) The department shall supervise the following offenders who are sentenced to probation in superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210:

(a) Offenders convicted of:

(i) Sexual misconduct with a minor second degree;

(ii) Custodial sexual misconduct second degree;

(iii) Communication with a minor for immoral purposes; and

(iv) Violation of RCW 9A.44.132(2) (failure to register); and

(b) Offenders who have:

(i) A current conviction for a repetitive domestic violence offense where domestic violence has been pleaded and proven after August 1, 2011; and

(ii) A prior conviction for a repetitive domestic violence offense or domestic violence felony offense where domestic violence has been pleaded and proven after August 1, 2011.

(2) Misdemeanor and gross misdemeanor offenders supervised by the department pursuant to this section shall be placed on community custody.

(3) The department shall supervise every felony offender sentenced to community custody pursuant to RCW 9.94A.701 or 9.94A.702 whose risk assessment classifies the offender as one who is at a high risk to reoffend.

(4) Notwithstanding any other provision of this section, the department shall supervise an offender sentenced to community custody regardless of risk classification if the offender:

(a) Has a current conviction for a sex offense or a serious violent offense and was sentenced to a term of community custody pursuant to RCW 9.94A.701, 9.94A.702, or 9.94A.507;

(b) Has been identified by the department as a dangerous mentally ill offender pursuant to RCW 72.09.370;

(c) Has an indeterminate sentence and is subject to parole pursuant to RCW 9.95.017;

(d) Has a current conviction for violating RCW 9A.44.132(1) (failure to register) and was sentenced to a term of community custody pursuant to RCW 9.94A.701;

(e)(i) Has a current conviction for a domestic violence felony offense where domestic violence has been pleaded and proven after August 1, 2011, and a prior conviction for a repetitive domestic violence offense or domestic violence felony offense where domestic violence was pleaded and proven after August 1, 2011. This subsection (4)(e)(i) applies only to offenses committed prior to July 24, 2015;

(ii) Has a current conviction for a domestic violence felony offense where domestic violence was pleaded and proven. The state and its officers, agents, and employees shall not be held criminally or civilly liable for its supervision of an offender under this subsection (4)(e)(ii) unless the state and its officers, agents, and employees acted with gross negligence;

(f) Was sentenced under RCW 9.94A.650, 9.94A.655, 9.94A.660, 9.94A.670, ((or)) 9.94A.711, or section 1 of this act;

(g) Is subject to supervision pursuant to RCW 9.94A.745; or

(h) Was convicted and sentenced under RCW 46.61.520 (vehicular homicide), RCW 46.61.522 (vehicular assault), RCW 46.61.502(6) (felony DUI), or RCW 46.61.504(6) (felony physical control).

(5) The department shall supervise any offender who is released by the indeterminate sentence review board and who was sentenced to community custody or subject to community custody under the terms of release.

(6) The department is not authorized to, and may not, supervise any offender sentenced to a term of community custody or any probationer unless the offender or probationer is one for whom supervision is required under this section or RCW 9.94A.5011.

(7) The department shall conduct a risk assessment for every felony offender sentenced to a term of community custody who may be subject to supervision under this section or RCW 9.94A.5011.

(8) The period of time the department is authorized to supervise an offender under this section may not exceed the duration of community custody specified under RCW 9.94B.050, 9.94A.701 (1) through (8), or 9.94A.702, except in cases where the court has imposed an exceptional term of community custody under RCW 9.94A.535.

(9) The period of time the department is authorized to supervise an offender under this section may be reduced by the earned award of supervision compliance credit pursuant to RCW 9.94A.717.

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