SENATE BILL REPORT

SB 6259

BYSenators Nelson, Talmadge, Patrick, Wojahn, Thorsness, Vognild, Bender, Warnke, Bauer, von Reichbauer, Gaspard, Madsen, Murray, Sutherland, Rasmussen, Fleming,  Hansen, Conner and Kreidler; by request of Governor

Changing provisions relating to criminal offenders.

Senate Committee on Law & Justice

Senate Hearing Date(s):January 9, 1990; January 10, 1990; January 11, 1990; January 12, 1990

Majority Report:  That Substitute Senate Bill No. 6259 be substituted therefor, and the substitute bill do pass and be referred to Committee on Ways & Means.

      Signed by Senators Nelson, Chairman; McCaslin, Vice Chairman; Hayner, Madsen, Newhouse, Niemi, Patrick, Rasmussen, Rinehart, Talmadge, Thorsness.

Senate Staff:Cliff Petersen (786-7457)

                  January 16, 1990

Senate Committee on Ways & Means

Senate Hearing Date(s):January 17, 1990; January 18, 1990

Majority Report:  That Second Substitute Senate Bill No. 6259 be substituted therefor, and the second substitute bill do pass.

      Signed by Senators McDonald, Chairman; Craswell, Vice Chairman; Amondson, Bailey, Bauer, Bluechel, Cantu, Gaspard, Hayner, Johnson, Lee, Moore, Newhouse, Niemi, Saling, Smith, Talmadge, Warnke, Williams, Wojahn.

Senate Staff:Randy Hodgins (786-7715)

                  January 24, 1990

AS PASSED SENATE, JANUARY 24, 1990

BACKGROUND:

Introduction.  The Governor's Task Force on Community Protection was created following a brutal sexual assault upon a young child and the murder of a young woman in Seattle.  The task force submitted to the Governor numerous proposals for statutory changes and funding programs for sex offenders and their victims.  The proposals impact the criminal justice system for adults and juveniles and the civil and criminal commitment system dealing with insane and imcompetent offenders.

Current Law.  The Department of Corrections conducts a victim/witness/police notification program for victims of sex and violent offenders.  If requested, the department must notify victims, witnesses and local police when the department is going to release a particular inmate or the inmate escapes.  The victim, witnesses, and police must request notice or the department has no obligation to give such notice.  The program exists only for adults convicted of sex and violent offenses and committed to the Department of Corrections.  The Division of Juvenile Rehabilitation has a far less extensive notification program for victims but not witnesses.  Counties are not statutorily obligated to provide notice of release.

Numerous laws exist that govern the confidentiality of information concerning adult and juvenile offenders and offenders in the custody of the Department of Social and Health Services (DSHS).  Case law is not well developed concerning the extent of information an agency may release to other agencies and the general public when an offender is going to be released into the community.  Several statutes have specific requirements governing the release of information and the failure to release information.  In general, agencies are liable for the improper release of information but not the failure to release information.  Agencies and agency employees may be subject to civil suit for the improper release of information.

Adults convicted of offenses who are in county or state custody are eligible to have their sentences reduced by up to one-third by earning early release credits, commonly known as "good time."

Juvenile offenders who are committed to the Department of Social and Health Services may be supervised on parole up to 18 months.  If a juvenile offender violates a condition of parole, the juvenile may be returned to custody for up to 30 days.  Some dispositions for juvenile offenders not committed to the department may include a period of supervision up to one year.

While juvenile sex offenders may receive some limited treatment while committed to the department, no formal dispositional alternative exists for juveniles that is comparable to the adult sentencing alternative for sex offenders.

Juveniles who are at least 16 years old may be declined jurisdiction in juvenile court and transferred to adult court for prosecution if the juvenile is charged with a class A felony.  Juveniles who are at least 17 years old may be transferred if charged with assault in the second degree, extortion in the first degree, indecent liberties, child molestation in the second degree, kidnapping in the second degree or robbery in the second degree.  In these above cases, a decline hearing must be held unless waived by the court, the parties, and their counsel.

Currently, neither state nor local law enforcement agencies may require sex offenders who reside within their jurisdictions to register with the local police.

In order to qualify for crime victims compensation, the victim must report the criminal act to law enforcement within 72 hours of its occurrence.  If it could not reasonably have been reported within that period, then it must be reported 72 hours of the time when a report could reasonably have been made.

Last year a cap of $150,000 per victim was instituted on medical benefits.

The Sentencing Reform Act designates only certain offenses as "sex offenses."  Sex offenses are offenses such as rape and child molestation.  Crimes that may be sexually motivated but are not completed acts of sexual abuse are not labeled sex offenses.  Examples include assault with intent to commit rape, and burglary with intent to commit rape.  Several predatory sex offenders have a history of sexually motivated offenses but have not been convicted of a sex offense.  Consequently, the criminal and mental health system may not treat the offender as a sex offender.

The Washington criminal code classifies sex offenses in various degrees based upon seriousness of the offense.  Felonies that are class A felonies carry a maximum penalty of life in prison.  Second degree rape, rape of a child in the second degree and first degree child molestation are class B felonies which carry a maximum penalty of 10 years in prison.  Indecent exposure is classified as a gross misdemeanor.

The sentencing grid in the Sentencing Reform Act contains 14 levels of punishment based upon the seriousness of the crime.  For each offense a midpoint sentencing range is established.

For first time sex offenders the following sentencing midpoints are:  Five years for first degree rape and first degree rape of a child; two years for second degree rape, second degree rape of a child, and first degree child molestation; 18 months for indecent liberties with forcible compulsion; 13 months for indecent liberties without forcible compulsion and second degree child molestation; six months for third degree rape of a child; and two months for third degree child molestation and first degree sexual misconduct with a minor.

Before a court can impose consecutive sentences for current convictions without imposing an exceptional sentence, the offender must be convicted of three or more serious violent offenses.

If an adult offender is being convicted of a sex offense and has prior juvenile convictions for violent offenses, the juvenile convictions count as one point in the offender score even if the convictions involved separate victims.  Prior juvenile and adult convictions may not be included in the offender score after a certain period of time if they are not class A felony sex offenses.

The special sexual offender sentencing alternative (SSOSA) for adults requires judges to consider whether the defendant and the community will benefit if the defendant is placed in community based treatment but does not require consideration of the victim's opinion.  Offenders who are given a community based disposition are placed on supervision up to two years.  An offender is ineligible for SSOSA if the sentence range for the offender is above six years.  The court must order the defendant not to change therapists to prevent an offender from changing treatment providers.

Following release from custody, certain offenders including sex and serious violent offenders must be placed on one year of community placement supervision.

Washington State's Involuntary Treatment Act (ITA), Chapter 71.05 RCW, was enacted in 1959 and underwent major amendatory changes in 1973, 1979, and 1987.  The act permits, by court order, the involuntary treatment of a person who, as a result of a mental disorder, is gravely disabled or presents a likelihood of serious harm to self or others.

The ITA may not be applicable to violent sex offenders because the offenders may not have a mental disease or defect that renders them appropriate for treatment under the statute.  In addition, in order to continually confine an offender, the ITA requires an overt act of dangerousness during the commitment period.  This will not occur since the offender does not have access to potential victims during the period of confinement.

In 1989, approximately 3,000 adults and children in Washington contacted local sexual assault programs to seek professional assistance.  Victims' recovery from the trauma of sexual assault can be enhanced by support and assistance from trained counselors.  Counseling for the nonabusive parent is also very useful in inter-familial cases involving young children.  The programs to assist victims of sexual assault are operated out of mental health agencies, criminal justice agencies, hospitals and private nonprofit agencies.  It has been suggested that there is a need for additional programs for victims and a need for a statewide victim advocacy office.

Background checks of prospective employees may be conducted for employers to ensure that prospective employees who have access to young children, the developmentally disabled, or vulnerable adults do not have a criminal history of sex offenses or other offenses against persons.  Certificated employees of school districts are excluded from the background check.  Indecent exposure is not among the list of offenses that may be considered for dissemination to employers.  Business organizations may be subjected to civil liability if they use the information from the background checks for any purpose other than hiring decisions.  Background checks are good for two years even if the employee transfers to different school districts.

SUMMARY:

Victim, Witness, and Police Notification Programs. The victim, witness, and police notification programs that currently exist for adult violent and sex offenders is used as a model to create new notification programs involving offenders in the custody of the Department of Social and Health Services (DSHS).  The department must notify victims and witnesses of the release of sex and violent offenders who are juveniles, or adults found not guilty by reason of insanity or incompetence to stand trial.  Victims and witnesses must request notice of the release of such offenders, but the police do not have to request such notice.

Immunity for Release of Information. Public agencies are expressly authorized to release relevant information regarding sex offenders to the public when the release is necessary for public protection.  This provision will end July 1, 1991.

Public employees are immune from civil liability for a discretionary decision to release information regarding juvenile sex offenders, and adult sex offenders committed to DSHS who are incompetent to stand trial or are insane.  Immunity applies if the employee acts without gross negligence and believes in good faith that the release was necessary to protect the public.

The Governor is to study confidentiality laws and report to the Legislature on or before November 1, 1990.

Earned Early Release ("Good Time"). The maximum amount of earned early release a class A felony sex offender may earn is reduced from one-third to 15 percent of the sentence.

Juvenile Justice Amendments. Juveniles convicted of sex offenses may be supervised for a period of up to two years.  If a juvenile violates a condition of supervision, the juvenile may be returned to custody for up to the remainder of the time left on the sentence rather than the previous limit of 30 days.

A special sexual offender dispositional alternative is created for juvenile offenders.  Juveniles convicted of certain sex offenses who have no prior history of sex offenses may be given a special dispositional alternative that includes a suspended sentence, supervision for two years, up to 30 days in custody, and treatment.

The age requirement for mandatory decline hearings and declining juvenile court jurisdiction and transfer to adult court is lowered from age 16 to 15 for juveniles charged with a class A felony sex offense.  The age requirement is lowered from age 17 to 16 for juveniles charged with certain other offenses.

Registration of Sex Offenders. Adults or juveniles convicted of any sex offense must register with the county sheriff within within 30 days of release from custody or within 45 days of establishing residence.  If the offender moves into a new county, the offender must register in the new county.  The sheriff must obtain fingerprints and a photograph of the offender.  Failure to register is a class C felony if the person was convicted of a class A felony sex offense, otherwise the failure is a gross misdemeanor.  Registration applies to persons who commit sex offenses after the effective date of this provision. 

The Washington State Patrol is to maintain a central registry of sex offenders.  The court and the Department of Corrections are to provide defendants and inmates with notice of the duty to register. 

Persons convicted of a class C felony sex offense must be registered for a period of 10 years and persons convicted of a class B felony sex offense must be registered for 15 years.  Unless a court relieves a person convicted of a class A felony offense, the person must always be registered.  The 10 and 15 year periods run only if the offenders remain in the community without convictions for any new offenses within the time period. 

Any offender may petition the court to be relieved of the duty to register.

Victims' Compensation Fund. The eligibility requirement that victims report the crime to the police within 72 hours of its occurrence is extended to 12 months.

In the case of victims of childhood criminal acts, the crime victims compensation rights are deemed to accrue at the time the victim discovers or reasonably should have discovered the elements of the crime.

The $150,000 cap on medical benefits applies per injury or death rather than per victim.  Payments for medical services in excess of the cap are to be made available if necessary for a previously accepted condition, to protect the life of the victim or to prevent deterioration and the payments are not available from another source.

Victims are not required to use their own assets except for money recovered from civil or criminal restitution.

Sexual Motivation in Criminal Cases. The prosecutor must file a special allegation of sexual motivation in any case when sufficient evidence exists to justify a finding that the offense was sexually motivated.  "Sexual motivation" means the offense was committed for the purposes of sexual gratification.  The trier of fact shall make a finding whether the act was sexually motivated.  The prosecutor may not dismiss the special allegation without court approval and the court must not approve the dismissal unless satisfied that the filing decision was made in error or that evidentiary problems exist that prevent proving the special allegation.  Sexually motivated offenses are included in the definition of "sex offenses."  The finding of sexual motivation may be an aggravating factor for an exceptional sentence, and will trigger the same consequences as any other sex offense, such as higher offender points for subsequent sex offenses, civil commitment, and eligibility or ineligibility for SSOSA or SSODA.  The finding will also apply to juveniles.  Examples include assault with intent to commit rape and burglary with intent to commit rape.

Criminal Sentencing.  The classifications for certain sex offenses are upgraded and thus increase the statutory maximum for the particular offense.  Second degree rape, rape of a child in the second degree, and first degree child molestation are raised from class B to class A felonies.  Indecent exposure is raised to class C felony from a gross misdemeanor if the exposure is to a child under age 14 and if the offender has a previous conviction for exposure or a sex offense.

The sentencing grid is modified to create 15 seriousness levels rather than 14.  Revised seriousness level XI has a new midpoint of 7.5 years for a first time offender and the new seriousness level XII has a midpoint of nine years for first time offenders.  First degree assault is raised to seriousness level XII to maintain proportionality with the increases in the first degree rape of a child and first degree rape.

In determining a sex offender's score, other current sex offenses and prior adult and juvenile sex offenses will count three points.  If an adult sex offender has prior convictions for violent juvenile offenses with separate victims, the adjudications no longer merge but count separately in the offender score.  All prior juvenile and adult sex offenses are included in the scoring of adult sex offenders.

Offenders must serve consecutive sentences when convicted of two or more current serious violent offenses.

When considering whether to impose a sentence under the special sexual offender sentencing alternative (SSOSA) the court must consider the victim's opinion whether the offender should receive the treatment disposition.  The group of offenders who are eligible for SSOSA is expanded to include offenders convicted of sexually motivated offenses unless the offenses are sex offenses that are also serious violent offenses.  The group of ineligible offenders is also expanded to sex offenders who have a prior conviction for a sexually motivated offense.  Imposition of SSOSA for first-time offenders is discretionary for offenders with sentences up to eight years in length instead of six because of the increase in standard ranges.  The length of supervision is increased from up to two years to up to five years or the length of the suspended sentence whichever is longer.  The offender must not change treatment providers without first notifying the court, community corrections officer, and the prosecutor, and must obtain court approval if the prosecutor and the community corrections officer object.

The Department of Corrections must supervise sex and serious violent offenders for two years or up to the length of the offender's earned early release, whichever is longer.  The department and the Indeterminate Sentence Review Board must give the greatest weight to public safety when making discretionary decisions regarding release and supervision of sexually violent prisoners.

Civil Commitment. A new civil commitment procedure is created for "sexually violent predators."  An offender may be committed under these provisions if: 1) the sentence for a sexually violent offense has ended or is about to end; or 2) the person is charged with a sexually violent offense and is found not guilty by reason of insanity, or is incompetent to stand trial and is about to be released; and 3) it appears that the person may be a sexually violent predator.

 The prosecutor may file a petition for civil commitment.  The judge must review the petition and determine whether probable cause exists to believe that the person is a sexually violent predator.  If so, the person is taken into custody, and transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator.

Within 45 days after the filing of the petition, the court is required to conduct a trial to determine whether the person is a sexually violent predator.  The person, prosecuting attorney or Attorney General, or judge may demand a jury trial.  If the court or jury determines, beyond a reasonable doubt, that the person is a sexually violent predator, then the person is committed to the Department of Social and Health Services (DSHS).  If the person has previously been found incompetent to stand trial and is about to be or has been released, the court must first determine, beyond a reasonable doubt, whether the person did commit the act or acts charged.

A person committed to DSHS under these provisions is entitled to an examination of his or her mental condition at least once a year.  If the Secretary of DSHS determines that the person's disorder is changed to the extent that the person is not likely to commit sexually violent predatory acts, then the secretary must authorize the person to petition the court for release.  If the prosecutor opposes the DSHS-authorized petition, he or she must show beyond a reasonable doubt that the person is not safe to be at large and is likely to commit predatory acts of sexual violence.  The person may petition for discharge without the secretary's approval, but must show by a preponderance of the evidence that the person's personality disorder is so changed that her or she is safe to be at large.

Each person involuntarily detained or committed under these provisions receives the right to adequate care and individualized treatment.  In addition, this commitment procedure applies to juveniles.

Grant Programs and Victims' Advocacy.  A grant program is established in the Department of Community Development to enhance the funding for treating the victims of sex offenders.  Only activities which provide effective treatment to victims, increase access and availability of treatment and which create or build on existing community programs may be funded.  The program is available to all local units of government, nonprofit community groups and nonprofit treatment providers.

An Office of Crime Victims' Advocacy is established in the Department of Community Development to administer the grant program and provide other advocacy services to crime victims.

Applicants are required to provide evidence demonstrating the effectiveness of the proposal and how the funding criteria will be met.  Applicants are also required to demonstrate active participation of the local community and its commitment to providing effective treatment services for victims.

The minimum requirements for the content of the grant application are outlined and the awards are to be made on a competitive basis.  To assist the department in awarding the grants, a peer review committee is established comprised of individuals experienced in the treatment of victims of predatory violent sex offenders.

The department is to ask communities for suggestions on state practices, policies and priorities that would help communities treat victims.  These suggestions are to be received by the executive branch and recommendations forwarded to the Legislature where appropriate.@p@l1 By January 1, 1991, the department is to report to the Legislature on the operation of the grant program.  The report is to include such items as the number and monetary amount of the grants, purposes of the grants, success of the projects in meeting its goals and objectives and recommendations for further funding and future operation of the program.

Background Checks.  The list of prospective employees subject to background checks is expanded to cover certificated employees of school districts and any current school district employee who has applied for transfer. A new crime of felony indecent exposure is added to the list of crimes covered by background checks.  Express imposition of liability is removed from business organizations which violate the requirement that the background checks are only to be used to make initial employment decisions.  School district employees who transfer from one school district to another may be subjected to another background check.

EFFECT OF PROPOSED SUBSTITUTE:

The bill remains the same except for the following changes:  Immunity is extended to public agencies when they distribute information on a sex offender to the public.

A juvenile sex offender must obtain court approval for a change of sex offender treatment providers if the prosecutor and probation counselor object to the change.

Current law is restored with respect to the age requirements for mandatory decline hearings but extended to allow criminal solicitation or conspiracy to be the basis for a decline hearing.

The mandatory term of confinement for first degree rape is increased from three to five years.  The maximum time that first-time sex offenders may be required to undergo available outpatient treatment is increased from two to five years.

Sex offenders convicted prior to July 1, 1987 may apply for an evaluation and placement in a Department of Corrections sex offender treatment program subject to available funds.

The Sentencing Guidelines Commission is to conduct a study of organic treatment for sex offenders.

A definition of "mental abnormality" is added to the provisions governing civil commitment of sexually violent predators.

Funding under the Department of Community Development grant program is extended to programs that provide services to victims of sexual assault and emergency housing.  Existing well-established programs and programs in geographic areas where none currently exist are to be given funding priority.

Technical changes are made to the "background checks" portion of the bill to carry out the original intent of the Governor's task force.

A pilot project is established for the joint investigation of child abuse and sexual assault cases by personnel from law enforcement and Child Protective Services.

A program to certify sex offender treatment providers is established.

Appropriation:    The following appropriations are made from the general fund for the biennium ending June 30, 1991:

$100,000 to DSHS for implementing the expanded victim, witness, and police notification programs.

$2,850,000 to DSHS for the operational costs of the disposition and treatment alternatives for juvenile sex offenders.

$253,000 to the Washington State Patrol for the central sex offender registry.

$760,000 to the Attorney General to expand the homicide investigation and tracking system of serious violent crimes to include sex offenses.

$2,813,000 to the Department of Community Development.  $2,500,000 of that amount is for the grant programs.  $213,000 is for the Office of Victims' programs.  $100,000 is for the purpose of ensuring that crime victims are aware of their rights and the procedures for applying for benefits from the crime victims' compensation fund.

$970,000 to the Department of Labor and Industries for the purposes of the crime victims' fund.

$1,328,000 to the Department of Corrections for operational costs associated with additional prison population due to increased penalties ($172,000), improvement in sex offender treatment ($1,107,000), and improvement in the computer systems to allow better access to Department of Correction's information by the State Patrol and local law enforcement ($49,000).

$1,875,000 to DSHS for the civil commitment process.  DSHS must reimburse counties for the cost of commitment actions.

$1,391,000 to DSHS for intensive voluntary supervision and treatment services for individuals who are at risk of committing sex offenses but who cannot be civilly committed or who are not incarcerated.  These funds are to be used primarily for the developmentally disabled in need of those services.

$1,800,000 to DSHS to provide intensive treatment and other services to children who are victims of sexual abuse.  These funds are to be used primarily for juveniles who are at risk of becoming offenders and in need of residential treatment or intensive treatment and counseling.

$327,000 to the Department of Corrections for the purpose of paying for polygraphs or plethysmographs for indigent sex offenders who are required to obtain those tests as conditions of release.

$500,000 to the Washington State Institute for Public Policy to research and evaluate efforts to examine the effectiveness of victims' and sex offender programs, including treatment.  The institute will operate a grant program which must include awards for longitudinal and retrospective studies.  An advisory panel will decide who receives grant money which must be given to applicants from for-profit or nonprofit organizations in addition to public universities.

$106,000 to DSHS to renovate an institutional cottage to house juvenile sex offenders.

$991,000 to DSHS to construct residential facilities to house a capacity of 24 juvenile sex offenders.

Revenue:    none

Fiscal Note:      available

Effective Date:All sections other than the sections that will impact the sentencing scheme will take effect immediately.  The sentencing changes will take effect July 1, 1990.

EFFECT OF PROPOSED SECOND SUBSTITUTE:

Some of the Administrator for the Courts SSOSA panel recommendations regarding amendments to the adult special sexual sentencing alternative are added to the existing SSOSA program and to the juvenile special sexual offender disposition alternative.

Sexually aggressive youth is defined for the purposes of funds appropriated for treatment and DSHS is required to establish case review committees.

The costs of a colposcope exam are required to be reimbursed from the crime victims' compensation fund.

The Office of Financial Management (OFM) is to prevent expenditures from the public safety and education account from exceeding revenue forecasts.  In developing and implementing an expenditure reduction plan, OFM is to seek the cooperation of judicial agencies and give priority to maintaining benefits under the crime victims' compensation program.  The Economic and Revenue Forecast Council is required to prepare the official revenue estimate for the public safety and education account.

Care and treatment of civilly committed sexually violent predators are required to conform to constitutional standards.

The Office of Crime Victims' Advocacy and the community grant program are transferred from the Department of Community Development to the Department of Labor and Industries.

Eligibility for the community grant program is extended to specified shelter programs.

The appropriations are removed from the bill.

Senate Committee - Testified: LAW & JUSTICE:  Norm Maleng, Chair, Governor's task force; Brother David, IMPROVE; Cathy Taylor, citizen; Judge Thompson, Sentencing Guidelines Commission; Bob Boruchowitz, Washington Defenders Association; Ida Ballasiotes, Friends of Diane; Angie Vincent, Tennis Shoe Brigade and Friends of Diane; Alice Gibson, citizen; Fran Dew, Helen Harlowe, Larry Erickson, Governor's task force; John Turner, Police Chief, Mountlake Terrace; Casey Carmody, Friends of Diane; Steve Eckstrom, Washington Coalition of Crime Victims; Karen Bachelder, Joan Duffell, Committee for Children; Bev Emery, Washington Coalition of Sexual Assault Program; Kirk Klevin, Washington Association of Criminal Defense Lawyers; Debbie Doane, Gil Matson, Eastside Sexual Assault Center; Bob Fisher, Washington Education Association; David Boerner, Lucy Berliner, Governor's task force; Thelma Struck, DSHS; Larry Fehr, WCCD; Michael Compte, Compte & Associates; Deborah Senn, Coalition Against Domestic Violence; John LaFord, UPS Law School; William Salen, Seattle Public Defender Association; Shirley Seigel, Stop Abuse by Counselors; Doug Walsh, Mike Grant, Attorney General's office

Senate Committee - Testified: WAYS & MEANS:  Norm Maleng, Chair, Governor's Task Force; Ida Ballasiotes, Friends of Diane; Casey Carmody, Friends of Diane; Angie Vincent, Friends of Diane, Tennis Shoe Brigade; Andy Miller, Blue Riboon Panel on Sex Offender Outpatient Treatment; James Chapman; Steve Eckstrom, Washington Coalition of Crime Victim Advocates; Bev Emergy, Washington Coalition of Crime Victim Advocates