BILL REQ. #:  S-0295.2 

Read first time 01/18/11.   Referred to Committee on Judiciary.

     AN ACT Relating to persistent offenders; amending RCW 9.94A.570 and 9.95.435; adding a new section to chapter 9.94A RCW; adding a new section to chapter 9.95 RCW; and prescribing penalties.

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

Sec. 1   RCW 9.94A.570 and 2000 c 28 s 6 are each amended to read as follows:
     (1) Notwithstanding the statutory maximum sentence or any other provision of this chapter and except as provided in subsection (2) of this section, a persistent offender shall be sentenced to a term of total confinement for life without the possibility of release or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death. In addition, no offender subject to this section may be eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of release as defined under RCW 9.94A.728 (((1),)) (2), (3), (((4), (6),)) (5), (7), and (8), ((or (9),)) or any other form of authorized leave from a correctional facility while not in the direct custody of a corrections officer or officers, except:
     (((1))) (a) In the case of an offender in need of emergency medical treatment; ((or (2)))
     (b) For the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree; or
     (c) When authorized under sections 2 and 3 of this act and RCW 9.95.435.
     (2)(a) A persistent offender shall be sentenced under this subsection if the persistent offender does not have a prior or current conviction for a class A felony or a sex offense, or a federal or out-of-state conviction for an offense that under the laws of this state would be considered a class A felony or a sex offense, or a prior or current conviction with a deadly weapon verdict under RCW 9.94A.825 or 9.95.015.
     (b) Upon a finding that the persistent offender is subject to sentencing under (a) of this subsection, the court shall impose a sentence to a maximum term and a minimum term. The maximum term shall consist of a maximum sentence of life without the possibility of early release. The minimum term shall consist of the greater of fifteen years, the high end of the standard range for the current offense, or an exceptional sentence above the standard range pursuant to RCW 9.94A.535. An offender serving a term of confinement under this subsection is not eligible for earned early release or any reduction in the minimum term imposed by the court.
     (c) When imposing sentence under (b) of this subsection, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement. As part of any sentence, the court shall also require the offender to comply with any conditions imposed by the board under chapter 9.95 RCW. After the offender has served the mandatory minimum term in total confinement without reduction, the board shall have the authority to conditionally release the offender pursuant to section 3 of this act.

NEW SECTION.  Sec. 2   A new section is added to chapter 9.94A RCW to read as follows:
     The board shall have jurisdiction over any offender in custody who: (1) Was sentenced as a persistent offender prior to the effective date of this act; and (2) does not have a conviction for a class A felony or a sex offense, or a federal or out-of-state conviction for an offense that under the laws of this state would be considered a class A felony or a sex offense, or a conviction with a deadly weapon verdict under RCW 9.94A.825 or 9.95.015. Notwithstanding the terms of the judgment and sentence, after such an offender has served fifteen years in total confinement without reduction under sentence as a persistent offender, the board shall have the authority to grant conditional release pursuant to section 3 of this act. The board shall impose conditions of community custody consistent with RCW 9.94A.703. The offender shall be under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence.

NEW SECTION.  Sec. 3   A new section is added to chapter 9.95 RCW to read as follows:
     (1) The board shall not release a persistent offender pursuant to RCW 9.94A.570(2) or section 2 of this act unless in its opinion his or her rehabilitation has been completed and he or she is a fit subject for release. The board shall start with the presumption that the offender is to remain in total confinement for the maximum sentence of life. The offender must petition the board in writing for release. The offender must prove by clear and convincing evidence that his or her rehabilitation is complete and that he or she is fit for release. The board must then find by clear and convincing evidence that the offender has shown that he or she is completely rehabilitated and is fit for release. The board must document its decision in a report to the secretary. The offender may file his or her petition with the board anytime after he or she has served the minimal sentence as defined in RCW 9.94A.570(2)(b). Upon denial of an offender's petition by the board, the offender must wait a minimum of one year from the date his or her petition was denied by the board to reapply for release by the board.
     (2) If conditional release is granted, the board shall retain jurisdiction for the remainder of the offender's life with the power to revoke the conditional release if the offender violates the imposed conditions. An offender released by the board shall be monitored by the department for compliance.
     (3) Whenever the board or a community corrections officer of this state has reason to believe an offender released under subsection (1) of this section has violated a condition of community custody or the laws of this state, any community corrections officer may arrest or cause the arrest and detention of the offender pending a determination by the board whether sanctions should be imposed or the offender's community custody should be revoked. The community corrections officer shall report all facts and circumstances surrounding the alleged violation to the board in a written report to the board, with recommendations.

Sec. 4   RCW 9.95.435 and 2007 c 363 s 3 are each amended to read as follows:
     (1) If an offender released by the board under RCW 9.95.420 or section 3 of this act violates any condition or requirement of community custody, the board may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation and subject to the limitations of subsection (2) of this section.
     (2) Following the hearing specified in subsection (3) of this section, the board may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community, or may suspend the release and sanction up to sixty days' confinement in a local correctional facility for each violation, or revoke the release to community custody whenever an offender released by the board under RCW 9.95.420 or section 3 of this act violates any condition or requirement of community custody.
     (3) If an offender released by the board under RCW 9.95.420 or section 3 of this act is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the board or a designee of the board prior to the imposition of sanctions. The hearing shall be considered as offender disciplinary proceedings and shall not be subject to chapter 34.05 RCW. The board shall develop hearing procedures and a structure of graduated sanctions consistent with the hearing procedures and graduated sanctions developed pursuant to RCW 9.94A.737. The board may suspend the offender's release to community custody and confine the offender in a correctional institution owned, operated by, or operated under contract with the state prior to the hearing unless the offender has been arrested and confined for a new criminal offense.
     (4) The hearing procedures required under subsection (3) of this section shall be developed by rule and include the following:
     (a) Hearings shall be conducted by members or designees of the board unless the board enters into an agreement with the department to use the hearing officers established under RCW 9.94A.737;
     (b) The board shall provide the offender with findings and conclusions which include the evidence relied upon, and the reasons the particular sanction was imposed. The board shall notify the offender of the right to appeal the sanction and the right to file a personal restraint petition under court rules after the final decision of the board;
     (c) The hearing shall be held unless waived by the offender, and shall be electronically recorded. For offenders not in total confinement, the hearing shall be held within thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. For offenders in total confinement, the hearing shall be held within thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. The board or its designee shall make a determination whether probable cause exists to believe the violation or violations occurred. The determination shall be made within forty-eight hours of receipt of the allegation;
     (d) The offender shall have the right to: (i) Be present at the hearing; (ii) have the assistance of a person qualified to assist the offender in the hearing, appointed by the presiding hearing officer, if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and present documentary evidence; (v) question witnesses who appear and testify; and (vi) be represented by counsel if revocation of the release to community custody upon a finding of violation is a probable sanction for the violation. The board may not revoke the release to community custody of any offender who was not represented by counsel at the hearing, unless the offender has waived the right to counsel; and
     (e) The sanction shall take effect if affirmed by the presiding hearing officer.
     (5) Within seven days after the presiding hearing officer's decision, the offender may appeal the decision to the full board or to a panel of three reviewing examiners designated by the chair of the board or by the chair's designee. The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to any of the following: (a) The crime of conviction; (b) the violation committed; (c) the offender's risk of reoffending; or (d) the safety of the community.
     (6) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations.