AN ACT Relating to home incarceration and restitution; and adding a new chapter to Title 9 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that if a person convicted of a crime is sentenced to a period of home incarceration, the ability of the person to engage in gainful employment during the home incarceration is of special importance so as to ensure that the person makes restitution to those individuals who have suffered monetary loss as a result of the person's criminal actions.

NEW SECTION. Sec. 2. This chapter may be known as the home incarceration and restitution act.

NEW SECTION. Sec. 3. The definitions in this section apply throughout this chapter.

(1) "Home" means the temporary or permanent residence of a defendant consisting of the actual living area. "Home" does not include the residence of any other person who is not part of the defendant's immediate family. However, a hospital, nursing care facility, hospice, half-way house, group home, residential treatment facility, or boarding house may serve as a "home" under this section.

(2) "Home incarceration" means use of a person's home for purposes of confinement.

(3) "Terminal illness" is a medically recognized condition for which the prognosis is death within six months to a reasonable degree of medical certainty.

(4) "Approved monitoring device" means an electronic device approved by the advisory council on criminal justice services under RCW 43.43.790 or an apparatus which is limited in capability to recording or transmitting information as to the offender's presence or nonpresence in the home. Such devices must be minimally intrusive. A monitoring device shall not be approved if it is capable of recording or transmitting:

(a) Visual images;

(b) Oral or wire communications or any auditory sound; or

(5) "Violent offense" has the meaning prescribed under RCW 9.94A.030.

NEW SECTION. Sec. 4. (1) If authorized by the county legislative authority, a misdemeanant may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration. Such petitions may be considered and ruled upon by the sentencing court prior to and throughout the term of the misdemeanant's sentence.

(2) The sentencing judge shall study the record of persons petitioning for home incarceration and, in his or her discretion, may:

(a) Cause additional background or character information to be collected or reduced to writing by the district court probation office.

(b) Conduct hearings on the desirability of granting home incarceration;

(d) Order that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration at whatever time or intervals consecutive or nonconsecutive, as the court determines. The time actually spent in home incarceration pursuant to this section shall not exceed six months or the maximum term of imprisonment assessed, whichever is the shorter;

(e) Issue warrants for persons if there is reason to believe they have violated the conditions of home incarceration, conduct hearings on such matters, and order reimprisonment in the county jail upon proof of violation; and

(f) Grant final discharge from incarceration.

(3) All home incarcerees shall execute a written agreement with the court setting forth all of the conditions of home incarceration. The order of home incarceration shall incorporate the written agreement and order compliance with its terms. The order and written agreement shall be transmitted to the supervising authority and to the appropriate jail official.

(4) Time spent in home incarceration under this section shall be credited against the maximum term of imprisonment assessed for the defendant.

(5) Home incarcerees shall be under the supervision of the county sheriff. Home incarcerees shall be subject to the decisions of the sheriff during the period of supervision. Fees for supervision or equipment usage shall be paid directly to the sheriff.

NEW SECTION. Sec. 5. Home incarceration shall include the conditions set forth in this section.

(1) The home incarceree shall be confined to his or her home at all times except when:

(a) Working at approved employment or traveling directly to and from such employment;

(b) Seeking employment;

(d) Attending an approved educational institution or program;

(e) Attending a regularly scheduled religious service at a place of worship; and

(f) Participating in an approved community work service program.

(2) Violation of subsection (1) of this section may subject the home incarceree to prosecution for escape.

(3) The home incarceree shall conform to a schedule prepared by a designated officer of the supervising authority specifically setting forth the times when the incarceree may be absent from the home and the locations where he or she may be during those times.

(4) The home incarceree shall not commit another offense during the period of time for which he or she is subject to the conditions of home incarceration.

(5) The home incarceree shall not change the place of home incarceration or the schedule without prior approval of the supervising authority.

(6) The home incarceree shall maintain a telephone or other approved monitoring device in the home or on his or her person at all times.

(7) Any other reasonable conditions may be imposed by the court or the supervising authority including:

(a) Supervision fees; and

(b) Any of the conditions imposed on persons on probation or conditional discharge.

(8) A written and notarized consent agreement shall be filed with the court by every adult who will share the offender's home during the term of home incarceration.

NEW SECTION. Sec. 6. No person being held under a detainer, warrant, or process issued by some other jurisdiction is eligible for home incarceration. No person previously convicted of, or currently being sentenced for, a violent offense is eligible for home incarceration.

NEW SECTION. Sec. 7. A person serving a sentence under conditions of home incarceration is responsible for his or her food, housing, clothing, and medical care expenses, and is eligible for government benefits to the same extent as a person on probation, parole, or conditional discharge.

NEW SECTION. Sec. 8. At least once every thirty days, the supervising authority shall provide all local and county law enforcement agencies with a list of the offenders under home incarceration in their jurisdictions. This list shall include the following information:

(1) The offender's place of home incarceration;

(2) The crime for which the offender was convicted;

(3) The date that the sentence of home incarceration will be completed; and

(4) The name, address, and phone number of the officer of the authority supervising the offender.

NEW SECTION. Sec. 9. (1) When imposing a sentence of home incarceration in a case where a victim of a crime has suffered monetary damage as a result of the crime due to his or her property having been converted, stolen, or unlawfully obtained, or its value substantially decreased as a result of the crime, or where the victim suffered actual medical expenses, direct out-of-pocket losses, or loss of earning as a direct result of the crime, or if as a direct result of the crime the victim incurred medical expenses that were paid by public assistance or crime victim compensation, or any other governmental entity, the court shall order the defendant to make restitution in addition to any other penalty provided for the commission of the offense. Payment of restitution to the victim shall have priority over payment of restitution to any government agency. Restitution shall be ordered in the full amount of the damages, unless the damages exceed one hundred thousand dollars or twice the amount of the gain from the commission of the offense, whichever is greater, in which case the higher of these two amounts shall be awarded. The court may, in lieu of ordering monetary restitution, order the defendant to make restitution by working for or on behalf of the victim. The court shall determine the number of hours of work necessary by applying the then prevailing federal minimum wage to the total amount of monetary damage caused by or incidental to the commission of the crime. The court may, with the consent of the agency, order the defendant to work for a public agency of the state, a county, or a city for a period of time equal to that determined in the case of working for a victim. Any work ordered pursuant to this section shall not be deemed employment for any purpose, nor shall the person performing the work be deemed an employee for any purpose. If there is more than one defendant or more than one victim, restitution may be apportioned.

(2) Restitution shall be subject to the following additional terms and conditions:

(a) Restitution by payment may be ordered in a lump sum or in specified payments;

(b) Restitution by payment may be ordered paid through the court clerk, who shall disburse the moneys as ordered by the court;

(c) Where property that is unlawfully in the possession of the defendant is in substantially undamaged condition from its condition at the time of the taking, return of the property shall be ordered in lieu of monetary restitution;

(d) Restitution by payment to governmental agencies shall be made through payments to and disbursement by the court clerk;

(e) The court clerk shall assess an additional fee of two percent to defray the administrative costs of collection of payments or property. This fee shall be paid by the defendant;

(f) When a defendant fails to make restitution ordered to be paid through the court clerk, the clerk shall notify the court. The court shall hold a hearing to determine if the defendant is in contempt of court or has violated the terms of probation; and

(g) An order of restitution shall not preclude the owner of property or the victim who suffered personal physical or mental injury or out-of-pocket loss of earnings or support or other damages from proceeding in a civil action to recover damages from the defendant. A civil verdict shall be reduced by the amount paid under the criminal restitution order.

NEW SECTION. Sec. 10. Sections 1 through 9 of this act shall constitute a new chapter in Title 9 RCW.