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                                 ENGROSSED SUBSTITUTE HOUSE BILL NO. 1598

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State of Washington                              49th Legislature                              1986 Regular Session

 

By House Committee on Judiciary (originally sponsored by Representatives Valle, Crane, Kremen, Smitherman, P. King, Hargrove, Zellinsky, Bristow, Scott, Todd, Wang, Ebersole, Winsley, Basich, Brough and May)

 

 

Read first time 2/7/86 and passed to Committee on Rules.

 

 


AN ACT Relating to sexual offenders; amending RCW 9.94A.120; creating new sections; repealing RCW 9.94A.122; 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 sexual offender treatment programs at western and eastern state hospitals, while not proven to be totally effective, may be of some benefit in positively affecting the behavior of certain sexual offenders.  Given the significance of the problems of sexual assault and sexual abuse of children, it is therefore appropriate to review and revise these treatment efforts or to terminate treatment if found to be ineffective.

          At the same time, concerns regarding the lack of adequate security at the existing programs must be satisfactorily addressed.  The Legislature finds that public protection is the primary concern of the criminal justice system.  Thus, violent crimes should be addressed through the use of criminal sanctions.  In an effort to promote public safety, it is the intent of the legislature to transfer the responsibility for felony sexual offenders from the department of social and health services to the department of corrections and to determine whether treatment should be provided.

          Therefore, on and after July 1, 1987, no person convicted of a felony sexual offense may be committed under RCW 9.94A.120(7)(b) to the department of social and health services at eastern state hospital or western state hospital.  Any person committed before July 1, 1987, to the department of social and health services under RCW 9.94A.120(7)(b) and still in the custody of the department of social and health services on June 30, 1993, shall be transferred to the custody of the department of corrections.  On and after July 1, 1987, if sex offender treatment services are continued, any person eligible for evaluation or treatment under RCW 9.94A.120(7)(b) shall be committed to the department of corrections.

 

          NEW SECTION.  Sec. 2.     (1) In cooperation and consultation with the legislative budget committee, the office of financial management, the University of Washington, department of psychiatry, the mental health division of the department of social and health services, the department of corrections shall develop a plan for the administration of a sexual offender treatment program.  The plan shall include:

          (a) Criteria to determine amenability to treatment;

          (b) A description of the structure and organization of the program and program options, including staffing requirements;

          (c) The treatment methods and the number and characteristics of offenders proposed to be served;

          (d) The selection of the location or locations of the program within the existing institutions operated by the department of corrections, including identification of alternative sites within the existing institutions operated by the department of corrections;

          (e) An analysis of a proposal to permit selected offenders to participate in the program only during the last two or three years of their term of confinement;

          (f) Program security;

          (g) Program costs;

          (h) A description of the mechanisms and procedures to be used to collect valid and reliable data on program completion rates, recidivism rates, and escape rates;

          (i) A method for tracking offenders who have been released which method can be used to determine the efficacy of the treatment program;

          (j) An analysis and description of other treatment models;

          (k) Negotiations with the exclusive bargaining representative of the employees affected to provide preferential consideration for job retention, including but not limited to interagency transfer or promotion during the period of transition; and

          (l) An assessment of whether the benefits of an institutionalized state level sex offender treatment program justify the related state general fund expenditures.

          (2) The plan shall be submitted to the legislature by January 1, 1987, and shall take effect on July 1, 1987, unless otherwise directed by law.

 

        Sec. 3.  Section 12, chapter 137, Laws of 1981 as last amended by section 6, chapter 209, Laws of 1984 and RCW 9.94A.120 are each amended to read as follows:

          When a person is convicted of a felony, the court shall impose punishment as provided in this section.

          (1) Except as authorized in subsections (2) and (5) of this section, the court shall impose a sentence within the sentence range for the offense.

          (2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

          (3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.  A sentence outside the standard range shall be a determinate sentence.

          (4) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years.  An offender convicted of the crime of assault in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.  An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than three years, and shall not be eligible for furlough, work release or other authorized leave of absence from the correctional facility during such minimum three year term except for the purpose of commitment to an inpatient treatment facility.  The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section.

          (5) In sentencing a first-time offender, other than a person convicted of a violation of chapter 9A.44 RCW or RCW 9A.64.020, the court may waive the imposition of a sentence within the sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses.  The sentence may also include up to two years of community supervision, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

          (a) Devote time to a specific employment or occupation;

          (b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;

          (c) Pursue a prescribed, secular course of study or vocational training;

          (d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

          (e) Report as directed to the court and a community corrections officer; or

          (f) Pay a fine((, make restitution,)) and/or accomplish some community service work.

          (6) If a sentence range has not been established for the defendant's crime, the court shall impose a determinate sentence which may include not more than one year of confinement, community service work, ((restitution,)) a term of community supervision not to exceed one year, and/or a fine.  The court may impose a sentence which provides more than one year of confinement if the court finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

          (7) (a) When an offender is convicted of any violation of chapter 9A.44 RCW or RCW 9A.64.020 except RCW 9A.44.040 or RCW 9A.44.050 and has no prior convictions of chapter 9A.44 RCW, RCW 9A.64.020, or any other felony sexual offenses in this or any other state, the sentencing court on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.

          After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative.  If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years.  As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:

          (i) Devote time to a specific employment or occupation;

          (ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense.  A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment;

          (iii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

          (iv) Report as directed to the court and a community corrections officer;

          (v) Pay a fine, ((make restitution,)) accomplish some community service work, or any combination thereof; or

          (vi) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.

          If the offender violates these sentence conditions the court may revoke the suspension and order execution of the sentence.  All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.

          (b) When an offender is convicted of any felony sexual offense other than a violent offense and is sentenced before July 1, 1987, to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, order the offender committed for up to thirty days to the custody of the secretary of the department of social and health services at the Eastern State Hospital or the Western State Hospital for evaluation and report to the court on the offender's amenability to treatment at these facilities.  If the secretary of the department of social and health services cannot begin the evaluation within thirty days of the court's order of commitment, the offender shall be transferred to the state for confinement pending an opportunity to be evaluated at the appropriate facility.  The court shall review the reports and may order that the term of confinement imposed be served in the sexual offender treatment programs at Western State Hospital or Eastern State Hospital, as determined by the secretary of the department of social and health services, only if the report indicates that the offender is amenable to the treatment program provided at these facilities.  The offender shall be transferred to the state pending placement in the treatment program.  No offender who has escaped from the treatment program shall be committed to the custody of the secretary for evaluation or treatment under this subsection.

          If the offender does not comply with the conditions of the treatment program, the secretary of the department of social and health services may refer the matter to the sentencing court ((for determination as to whether)).  The sentencing court shall commit the offender ((shall be transferred)) to the department of corrections to serve the balance of his term of confinement.

          If ((the offender)) an offender convicted of a felony sexual offense other than a violent offense successfully completes the treatment program before the expiration of his term of confinement, the court may convert the balance of confinement to community supervision and may place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:

          (i) Devote time to a specific employment or occupation;

          (ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

          (iii) Report as directed to the court and a community corrections officer;

          (iv) Undergo available outpatient treatment.

          If the offender violates any of the terms of his community supervision, the court may order the offender to serve out the balance of his community supervision term in confinement in the custody of the department of corrections.

          After June 30, 1993, (b) of this subsection shall cease to have effect.

          (8) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days.  A sentence requiring more than thirty days of confinement shall be served on consecutive days.  Local jail administrators may schedule court-ordered intermittent sentences as space permits.

           (9) If a sentence imposed includes a fine or restitution, the sentence shall specify a reasonable manner and time in which the fine or restitution shall be paid.  In any sentence under this chapter the court may also require the offender to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary (a) to pay court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, (b) to make recoupment of the cost of defense attorney's fees if counsel is provided at public expense, (c) to contribute to a county or interlocal drug fund, and (d) to make such other payments as provided by law.  All monetary payments shall be ordered paid by no later than ten years after the date of the judgment of conviction.

           (10) Except as provided under RCW 9.94A.140(1), a court may not impose a sentence providing for a term of confinement or community supervision which exceeds the statutory maximum for the crime as provided in RCW 9A.20.020.

           (11) All offenders sentenced to terms involving community supervision, community service, restitution, or fines shall be under the supervision of the secretary of the department or such person as the secretary may designate and shall follow implicitly the instructions of the secretary including reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, and notifying the community corrections officer of any change in the offender's address or employment.

          (12) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

          (13) A departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210(2) through (6).

          (14) The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court's judgment.  The court shall set forth the extraordinary circumstances in the record if it does not order restitution.

 

        Sec. 4.  Section 12, chapter 137, Laws of 1981 as last amended by section 3, chapter ... (SHB 1598), Laws of 1986 and RCW 9.94A.120 are each amended to read as follows:

          When a person is convicted of a felony, the court shall impose punishment as provided in this section.

          (1) Except as authorized in subsections (2) and (5) of this section, the court shall impose a sentence within the sentence range for the offense.

          (2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

          (3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.  A sentence outside the standard range shall be a determinate sentence.

          (4) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years.  An offender convicted of the crime of assault in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.  An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than three years, and shall not be eligible for furlough, work release or other authorized leave of absence from the correctional facility during such minimum three year term except for the purpose of commitment to an inpatient treatment facility.  The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section.

          (5) In sentencing a first-time offender, other than a person convicted of a violation of chapter 9A.44 RCW or RCW 9A.64.020, the court may waive the imposition of a sentence within the sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses.  The sentence may also include up to two years of community supervision, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

          (a) Devote time to a specific employment or occupation;

          (b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;

          (c) Pursue a prescribed, secular course of study or vocational training;

          (d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

          (e) Report as directed to the court and a community corrections officer; or

          (f) Pay a fine and/or accomplish some community service work.

          (6) If a sentence range has not been established for the defendant's crime, the court shall impose a determinate sentence which may include not more than one year of confinement, community service work, a term of community supervision not to exceed one year, and/or a fine.  The court may impose a sentence which provides more than one year of confinement if the court finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

          (7) (a) When an offender is convicted of any violation of chapter 9A.44 RCW or RCW 9A.64.020 except RCW 9A.44.040 or RCW 9A.44.050 and has no prior convictions of chapter 9A.44 RCW, RCW 9A.64.020, or any other felony sexual offenses in this or any other state, the sentencing court on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.

          After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative.  If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years.  As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:

          (i) Devote time to a specific employment or occupation;

          (ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense.  A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment;

          (iii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

          (iv) Report as directed to the court and a community corrections officer;

          (v) Pay a fine, accomplish some community service work, or any combination thereof; or

          (vi) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.

          If the offender violates these sentence conditions the court may revoke the suspension and order execution of the sentence.  All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.

          (b) When an offender is convicted of any felony sexual offense and is sentenced ((before)) on or after July 1, 1987, to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, ((order the offender committed for up to thirty days to the custody of the secretary of the department of social and health services at the Eastern State Hospital or the Western State Hospital for evaluation and report to the court on the offender's amenability to treatment at these facilities.  If the secretary of the department of social and health services cannot begin the evaluation within thirty days of the court's order of commitment, the offender shall be transferred to the state for confinement pending an opportunity to be evaluated at the appropriate facility.  The court shall review the reports and may order that the term of confinement imposed be served in the sexual offender treatment programs at Western State Hospital or Eastern State Hospital, as determined by the secretary of the department of social and health services, only if the report indicates that the offender is amenable to the treatment program provided at these facilities.  The offender shall be transferred to the state pending placement in the treatment program.

          If the offender does not comply with the conditions of the treatment program, the secretary of the department of social and health services may refer the matter to the sentencing court.  The sentencing court shall commit the offender  to the department of corrections to serve the balance of his term of confinement)) request the department of corrections to evaluate whether the offender is amenable to treatment and the department may place the offender in a treatment program within a correctional facility operated by the department.

          If ((the offender successfully)) an offender convicted of a felony sexual offense other than a violent offense completes the treatment program before the expiration of his term of confinement, the department of corrections may request the court ((may)) to convert the balance of confinement to community supervision and ((may)) to place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:

          (i) Devote time to a specific employment or occupation;

          (ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

          (iii) Report as directed to the court and a community corrections officer;

          (iv) Undergo available outpatient treatment.

          If the offender violates any of the terms of his community supervision, the court may order the offender to serve out the balance of his community supervision term in confinement in the custody of the department of corrections.

          Nothing in (b) of this subsection shall confer eligibility for such programs for offenders convicted and sentenced prior to July 1, 1987.

          After June 30, 1993, (b) of this subsection shall cease to have effect.

          (8) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days.  A sentence requiring more than thirty days of confinement shall be served on consecutive days.  Local jail administrators may schedule court-ordered intermittent sentences as space permits.

           (9) If a sentence imposed includes a fine or restitution, the sentence shall specify a reasonable manner and time in which the fine or restitution shall be paid.  In any sentence under this chapter the court may also require the offender to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary (a) to pay court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, (b) to make recoupment of the cost of defense attorney's fees if counsel is provided at public expense, (c) to contribute to a county or interlocal drug fund, and (d) to make such other payments as provided by law.  All monetary payments shall be ordered paid by no later than ten years after the date of the judgment of conviction.

           (10) Except as provided under RCW 9.94A.140(1), a court may not impose a sentence providing for a term of confinement or community supervision which exceeds the statutory maximum for the crime as provided in RCW 9A.20.020.

           (11) All offenders sentenced to terms involving community supervision, community service, restitution, or fines shall be under the supervision of the secretary of the department of corrections or such person as the secretary may designate and shall follow implicitly the instructions of the secretary including reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, and notifying the community corrections officer of any change in the offender's address or employment.

          (12) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

          (13) A departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210(2) through (6).

          (14) The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court's judgment.  The court shall set forth the extraordinary circumstances in the record if it does not order restitution.

 

          NEW SECTION.  Sec. 5.     Nothing contained in this act shall be construed to alter any existing collective bargaining unit existing on the effective date of this section or the provisions of any collective bargaining agreement existing on the effective date of this section until such agreement has expired or until any such bargaining unit has been modified by action of the state personnel board as provided by law.

 

          NEW SECTION.  Sec. 6.  Section 8, chapter 443, Laws of 1985 and RCW 9.94A.122 are each repealed.

 

 

          NEW SECTION.  Sec. 7.     Section 4 of this act shall take effect July 1, 1987.

 

          NEW SECTION.  Sec. 8.     Sections 1, 2, 3, 5, and 6 of this act are necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.