WSR 98-09-045

INDETERMINATE SENTENCE

REVIEW BOARD

[Filed April 15, 1998, 9:38 a.m.]



Pursuant to our agreement entitled, "Protocol for the Publication of Non-APA Rules of the Indeterminate Sentence Review Board," following are revisions to various sections of Title 381 WAC for publication in the Washington State Register and Washington Administrative Code.



Protocol information is as follows:





Date of Adoption Effective Date
WAC 381-30-050 April 13, 1998 April 13, 1998
WAC 381-40-030 April 13, 1998 April 13, 1998
WAC 381-40-040 April 13, 1998 April 13, 1998
WAC 381-40-060 April 13, 1998 April 13, 1998
WAC 381-40-080 April 13, 1998 April 13, 1998
WAC 381-40-140 April 13, 1998 April 13, 1998
WAC 381-60-090 April 13, 1998 April 13, 1998
WAC 381-60-160 April 13, 1998 April 13, 1998
WAC 381-60-180 April 13, 1998 April 13, 1998
WAC 381-70-030 April 13, 1998 April 13, 1998
WAC 381-70-410 April 13, 1998 April 13, 1998
WAC 381-80-050 April 13, 1998 April 13, 1998

I certify pursuant to RCW 34.05.030 that chapters 381-30 through 381-80 WAC are exempt from the Administrative Procedure Act and are being submitted for publication pursuant to the protocol.

Kathryn S. Bail

Chair

 OTS-2101.2

AMENDATORY SECTION (Amending WSR 92-22-008, filed 10/21/92, effective 10/19/92)



WAC 381-30-050  New minimum term. New minimum terms of parole violators (pursuant to RCW 9.95.125) will be set by the board within thirty days of admission. Factors considered in setting a new minimum term include:

(1) The length of time previously incarcerated for the commitment offense from which the individual is on parole.

(2) The SRA ranges of the original offense from which the individual was on parole.

(3) The original recommendation of the committing judge and prosecuting attorney.

(4) Whether or not the parole violation behavior also resulted in an SRA conviction.

(5) Nature of both the original committing offense and the parole violation behavior.

(6) The requirements of Personal Restraint of Locklear (118 Wn2d 409) and Personal Restraint of Cashaw (123 Wn2d 138).



[92-22-008 381-30-050, filed 10/21/92, effective 10/19/92. 91-14-029, 381-30-050, filed 6/26/91, effective 7/27/91.]

OTS-2102.1

AMENDATORY SECTION (Amending WSR 91-14-029, filed 6/26/91, effective 7/27/91)



WAC 381-40-030  Scope. The provisions of this chapter shall apply to persons convicted of felony offenses in the state of Washington and sentenced to confinement in an adult correctional facility, whose crimes were committed on or before ((July 1)) June 30, 1984, and are therefore subject to the state's jurisdiction under the indeterminate sentencing system, and those officials charged with processing such convicted persons through the adult correctional system.



[91-14-029, 381-40-030, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 92-22-008, filed 10/21/92, effective 10/19/92)



WAC 381-40-040  Progress review. The board may elect to review each prisoner's progress during confinement. This review will normally be done at intervals of twenty-four months((, calculated from the prisoner's effective time start)).

The department of corrections may request, in writing, the following:

(1) An advance of the regularly scheduled progress review date;

(2) That the progress review be conducted at an in-person meeting;

(3) That a scheduled progress review be changed to either a parole review or a parolability meeting pursuant to RCW 9.95.100.



[92-22-008, 381-40-040, filed 10/21/92, effective 10/19/92. 91-14-029, 381-40-040, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 91-14-029, filed 6/26/91, effective 7/27/91)



WAC 381-40-060  Parole reviews. At its discretion, the board may elect to meet with selected prisoners prior to parole to consider the parole plan. The board ((normally will)) may authorize parole ((individuals)) after an administrative review only.



[91-14-029, 381-40-060, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 91-14-029, filed 6/26/91, effective 7/27/91)



WAC 381-40-080  Persons present: In-person parole meetings. The convicted person and such institutional persons as the members conducting the meeting deem appropriate may be present during the parole meeting. A limited number of observers may be present by ((prior)) approval of the panel members conducting the meeting provided that ((the inmate who is the subject of the meeting and)) the superintendent of the institution where the meeting is to be conducted ((do)) does not object. ((However, no family members, friends, relatives, or interested parties shall be present. No)) Normally, attorneys or advocates will not be permitted at parole meetings. The board will accept and consider any written statements submitted by individuals expressly excluded from in-person meetings. Exclusion of observers other than those expressly excluded herein shall be had only upon a finding of cause made by the board panel on the hearing record except in cases where the institutional superintendent denies access to the hearing room. The board reserves the right to exclude any person(s) from the room during the conduct of any meeting under this chapter upon its own motion or that of any party to the hearing provided that good cause for such exclusion is articulated on the record. In the event of a language communication problem, an interpreter designated by the board shall be present to interpret and assist. The board will accept information from any interested person in writing.



[91-14-029, 381-40-080, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 92-22-008, filed 10/21/92, effective 10/19/92)



WAC 381-40-140  Waiver of mandatory minimum term. Except when an inmate of an adult correctional institution has been sentenced under a statutorily nonwaivable mandatory, the board may parole an inmate prior to the expiration of a mandatory minimum term, provided such inmate has demonstrated a meritorious effort in rehabilitation and at ((last)) least two-thirds of the board members concur in such action; provided further, that any inmate who has a mandatory minimum term and is paroled prior to expiration of such term according to this rule and pursuant to RCW 9.95.040, shall not receive a conditional discharge from supervision while on parole until after the mandatory minimum waivable mandatory term has expired. Statutorily nonwaivable mandatory terms include murder first degree, murder second degree, and rape first degree.

The question of waiver of the mandatory minimum term may be referred to the full board by any member of the panel which has been assigned to review the matter. The board will review and consider any recommendation submitted by the superintendent for waiving of a mandatory minimum term:

The resident shall serve a portion of the mandatory term as follows:

(1) Two years if mandatory term is five years;

(2) Three years if mandatory term is seven and one-half years;

(3) Six years if mandatory term is fifteen years;

(4) Eight years if mandatory term is twenty years.



[92-22-008, 381-40-140, filed 10/21/92, effective 10/19/92. 91-14-029, 381-40-140, filed 6/26/91, effective 7/27/91.]

OTS-2103.1

AMENDATORY SECTION (Amending WSR 92-22-008, filed 10/21/92, effective 10/19/92)



WAC 381-60-090  Conducting a hearing. All hearings conducted under the provisions of this chapter shall be held before a panel of at least two members of the indeterminate sentence review board. One member shall be designated, by decision of the panel, as the presiding officer.

A limited number of observers may be present by prior approval of the panel members conducting the hearing, provided that the superintendent of the institution where the hearing is to be conducted, authorizes observers in the facility. However, no family members, friends, relatives, or interested parties shall be present. The board will accept and consider written statements submitted by individuals expressly excluded from hearings.

Exclusion of observers other than those expressly excluded herein shall be had only upon a finding of cause made by the board panel on the hearing record except in cases where the institutional superintendent denies access to the hearing room. The board reserves the right to exclude any person from the room during the conduct of any hearing under this chapter upon its own motion or the motion of any party to the hearing provided that good cause for such exclusion is articulated on the record. The presiding officer may recess the hearing at any time for consultation with the other panel member(s). The panel may question witnesses called by the parties to the hearing (as well as the subject of the hearing whether called as a witness or not) to develop any facts deemed necessary to render a fair and impartial decision. The panel conducting the hearing will ((make the final decision)) submit its recommendation to the full board for final determination after the hearing as to any change in minimum term. In the event of a language communication problem, an interpreter designated by the board shall be present to interpret and assist. The board will accept information from any interested person in writing.



[92-22-008, 381-60-090, filed 10/21/92, effective 10/19/92. 91-14-029, 381-60-090, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 91-14-029, filed 6/26/91, effective 7/27/91)



WAC 381-60-160  Disposition. The board panel shall render a decision of either parolable or not parolable on each case heard under this chapter. All decisions concerning inmates convicted of murder in the first degree will be made by the full board.

Examples of adequate reasons for a finding of nonparolability ((are)) include, but are not limited to:

(1) Active refusal to participate in available program or resources designed to assist an offender to reduce the risk of reoffense (e.g., anger management, substance abuse treatment).

(2) Serious and repetitive disciplinary infractions during incarceration.

(3) Evidence of an inmate's continuing intent or propensity to engage in illegal activity (e.g., victim harassment, criminal conduct while incarcerated, continued use of illegal substances).

(4) Statements or declarations by the inmate that he or she intends to re-offend or does not intend to comply with conditions of parole.

(5) ((Compelling)) Evidence ((within a mental health, psychosocial, or psychological report)) that an inmate presents a substantial danger to the community if released.

In parolability hearings, actions may range from no change in the length of sentence to redetermination of the original sentence and imposition of an extension of the term not to exceed the maximum term. Good time credits will not be addressed inasmuch as there are no allegations of rule infractions.



[91-14-029, 381-60-160, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 92-22-008, filed 10/21/92, effective 10/19/92)



WAC 381-60-180  Hearing record preservation. There will be a ((magnetic tape)) recording made of all hearings conducted under the provisions of this chapter. Such recordings shall be preserved at the offices of the board in Olympia for not less than six months subsequent to the hearing. Parties requesting partial or total duplication of any hearing must request such recordings pursuant to public disclosure and reimburse the board for the costs involved in such a procedure.



[92-22-008, 381-60-180, filed 10/21/92, effective 10/19/92. 91-14-029, 381-60-180, filed 6/26/91, effective 7/27/91.]

OTS-2104.1

AMENDATORY SECTION (Amending WSR 92-22-008, filed 10/21/92, effective 10/19/92)



WAC 381-70-030  Scope. (1) The provisions of this chapter shall apply to adult felony offenders granted parole from a Washington prison sentence who are alleged to have violated the terms of their order of parole, those state officials charged with the supervision of such parolees, and parties to parole revocation hearings.

(2) The indeterminate sentence review board will exercise its authority over parolees in a manner that:

(a) Places a high priority on public safety.

(b) ((Facilities)) Facilitates sentencing system transition consistent with the purposes of the Sentencing Reform Act.

(c) Imposes only those reasonable and enforceable conditions of parole necessary to encourage responsibility, and to assist the offender's lawful reintegration into the community.

(d) Supports the role and responsibility of the community corrections officer to assist offenders to re-enter the community in a law abiding manner.

(3) The indeterminate sentence review board, as the successor agency to the board of prison terms and paroles, was directed by the legislature to facilitate the transition to the determinate sentencing system and to implement a gradual phase out of the indeterminate system. Violations of parole, including felony behavior being prosecuted under the Sentencing Reform Act, shall be considered.

(4) In making a parole revocation or reinstatement decision, the indeterminate sentence review board will consider the following factors in addition to factors that are case specific:

(a) Whether or not the parole violation behavior also resulted in an SRA conviction;

(b) The relationship of the parole violations behavior to the committing offense and the nature of the violation;

(c) The length of time the parolee has been on parole as well as time previously served on the conviction;

(d) The perspective and recommendation of the victim;

(e) The recommendation and supporting reasons offered by the community corrections officer, the parolee, and the assistant attorney general;

(f) The level of risk to the community posed by the parolee;

(g) The previous board action during the period of parole;

(h) Purposes ((of the SRA)) and ranges of the SRA as well as the original judge and prosecutor's recommendations;

(i) The sanction range under the administrative sanction grid.



[92-22-008 381-70-030, filed 10/21/92, effective 10/19/92. 91-14-029, 381-70-030, filed 6/26/91, effective 7/27/91.]



AMENDATORY SECTION (Amending WSR 91-14-029, filed 6/26/91, effective 7/27/91)



WAC 381-70-410  Hearing record presentation. There will be a ((magnetic tape)) recording made of all hearings conducted under the provisions of this chapter. Such recordings shall be preserved for not less than six months subsequent to the hearing at the offices of the board in Olympia. Parties requesting partial or total duplication of any hearing must submit a request in writing along with blank tapes to receive the copy.



[91-14-029, 381-70-410, filed 6/26/91, effective 7/27/91.]

OTS-2098.1

AMENDATORY SECTION (Amending WSR 92-22-008 [93-23-077], filed 11/17/93, effective 10/18/93)



WAC 381-80-050  Final discharge from parole supervision. When a paroled offender has adequately performed the obligations of his or her release for a period of three years from the date of parole to the community, the board shall grant a final discharge restoring civil rights, pursuant to chapter 140, Laws of 1993. If the board determines that a final discharge is compatible with the best interests of society and the welfare of the paroled individual, the board may grant a final discharge prior to three years from the date of parole.

Final discharge restoring civil rights is governed by statute (RCW 9.96.050). If granted earlier than three years from the date of parole, full board ratification is required on all cases where the individual was convicted of a crime which resulted in a loss of life.

The right to possess or control firearms is not restored.

In cases where the maximum term has expired, the board ((is empowered to)) may grant a final discharge restoring civil rights if it believes such action is in the best interests of society.



[93-23-077 381-80-050, filed 11/17/93, effective 10/18/93. 92-22-008 381-80-050, filed 10/21/92, effective 10/19/92. 91-14-029, 381-80-050, filed 6/26/91, effective 7/27/91.]



Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

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Register

Washington State Code Reviser's Office