WSR 08-16-099

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Juvenile Rehabilitation Services)

[ Filed August 5, 2008, 9:34 a.m. ]

Supplemental Notice to WSR 07-23-092.

Exempt from preproposal statement of inquiry under WSR 07-16-089.

Title of Rule and Other Identifying Information: The department is amending chapter 388-740 WAC, Juvenile parole revocation, WAC 388-740-0010 Definitions, 388-740-0040 Parole revocation petition, and 388-740-0070 Confinement.

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on September 9, 2008, at 10:00 a.m.

Date of Intended Adoption: Not earlier than September 10, 2008.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. on September 9, 2008.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by September 2, 2008, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending these rules to implement RCW 13.40.210 (4)(b), effective October 1, 2007, incorporating statutory language and defining behavior which may be cause for the secretary to modify parole and return a juvenile sex offender to confinement for up to twenty-four weeks.

The department is also incorporating into rule provisions of RCW 13.40.210 (4)(a)(v) and (vi). This law authorizes the secretary to return certain juvenile sex offenders and basic training camp program graduates to confinement for the remainder of his or her sentence. Incorporated into rule also are related guidelines and juvenile rehabilitation administration (JRA) parole standards.

Additions were made to WAC 388-740-0010 Definitions. WAC 388-740-0040 was amended to reference changes in WAC 388-740-0070 and to include privacy protections. WAC 388-740-0070 Confinement was reorganized and expanded to include all types of parole revocation authorized in statute, and for ease of reference.

Statutory Authority for Adoption: RCW 13.40.210 (4)(b).

Statute Being Implemented: RCW 13.40.210 (4)(a)(iv), (v), and (vi), (4)(b).

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of social and health services, Cheryl Sullivan-Colglazier, director, division of treatment and intergovernmental programs, JRA, governmental.

Name of Agency Personnel Responsible for Drafting: Kecia Rongen, Administrator, Sex Offender Treatment Program, Juvenile Rehabilitation, Office Building 2, Olympia, Washington, (360) 902-7952; Implementation: Bob Salsbury, Administrator, Parole Services, Juvenile Rehabilitation, Office Building 2, Olympia, Washington, (360) 902-8086; and Enforcement: Woody Hodge, Director Community Programs, Juvenile Rehabilitation, Office Building 2, Olympia, Washington, (360) 902-8100.

No small business economic impact statement has been prepared under chapter 19.85 RCW. JRA has analyzed the proposed rule amendments and has concluded that they will impose no new costs on small businesses. A comprehensive small business economic impact statement is not required.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Lee Mosley, Administrator, Policy and Quality Assurance Program, Office Building 2, 1115 Washington Street, phone (360) 902-8092, fax (360) 902-8108, e-mail moslele@dshs.wa.gov.

August 1, 2008

Stephanie E. Schiller

Rules Coordinator

3930.4
AMENDATORY SECTION(Amending WSR 00-17-046, filed 8/7/00, effective 8/27/00)

WAC 388-740-0010   Definitions.   "Department" means the department of social and health services.

"Active parole" means all time served by a JRA youth under JRA parole supervision except that time during which the offender is:

(1) Under a JRA warrant;

(2) Held in detention within or outside the state of Washington pending a parole revocation hearing, pending charges or pending a civil commitment hearing under chapter 71.09 RCW;

(3) Serving a term of confinement for a parole revocation;

(4) Placed on seventy-two hour hold status pursuant to RCW 13.40.050;

(5) Placed on unauthorized leave status;

(6) Committed involuntarily for mental health or chemical dependency treatment; or

(7) On temporary assignment status to a county juvenile detention center, a county jail, or to a department of corrections facility.

If no other time is concurrently tolled against active parole per (1) through (7) above, one additional day is tolled against active parole when the offender is subject to:

A parole revocation initiated by the JRA.

A seventy-two hour hold in a JRA facility pending a parole revocation hearing.

"Confinement" means electronic monitoring of a juvenile or physical custody of a juvenile:

By the department of social and health services in a facility operated by or pursuant to a contract with the state of Washington;

In a group home or inpatient substance abuse program, or juvenile basic training camp, operated by or pursuant to a contract with the state of Washington;

In a county detention facility as defined in RCW 13.40.020;

In a facility operated by the department of corrections under provisions of RCW 13.40.280 or 13.40.285; or

In a similar facility in another state under terms of chapter 13.24 RCW and of the interstate compact to which the state of Washington is a party.

"Detention" means ((physical custody in Washington state by the department of social and health services in a juvenile rehabilitation administration operated or contracted facility or a Washington state detention facility as defined in RCW 13.40.020(9))), for purposes of this rule, temporary confinement of a juvenile pending charges, court disposition or administrative hearing.

"Juvenile parole officer" means a state employee, or person under contract to the state, whose responsibilities include supervising juvenile parolees.

"Juvenile parolee" means a person under age twenty-one released from a juvenile rehabilitation administration residential facility and placed under the supervision of a juvenile parole officer.

"Modification of parole conditions" means a change in the "order of parole conditions" provided by the juvenile parole officer with full knowledge of the change by the juvenile parolee.

"Parole" means a period of supervision following release from a juvenile rehabilitation administration residential facility, during which time certain parole conditions are to be followed.

"Parole conditions" mean interventions or expectations that include, but are not limited to, those listed in RCW 13.40.210, intended to facilitate the juvenile parolee's reintegration into the community and/or to reduce the likelihood of reoffending.

"Secretary" means secretary of the department of social and health services or his/her designee.

"Violation" means behavior by a juvenile parolee contrary to written parole conditions which may result in sanctions that include, but are not limited to, modification of parole conditions and/or confinement.

"Target victim population" means persons who, by age, sex, race, ethnicity, body conformation or coloration or other personal characteristics are consistent with those of a JRA youth's known victim(s).

[Statutory Authority: RCW 13.40.020, 13.24.010. 00-17-046, amended and recodified as 388-740-0010, filed 8/7/00, effective 8/27/00. Statutory Authority: RCW 72.01.090, 72.05.130 and 13.40.210. 99-03-077, 275-30-010, filed 1/19/99, effective 2/19/99. Statutory Authority: RCW 13.40.210. 88-20-083 (Order 2709), 275-30-010, filed 10/5/88.]


AMENDATORY SECTION(Amending WSR 00-17-046, filed 8/7/00, effective 8/27/00)

WAC 388-740-0040   Parole revocation petition.   (1) The juvenile parole officer:

(a) Must initiate a parole revocation petition if the juvenile parole officer has reason to believe the juvenile parolee possessed a firearm or used a deadly weapon during the parole period; or

(b) May initiate a parole revocation petition if the juvenile parole officer has reason to believe the juvenile parolee has violated a condition of parole, other than possession of a firearm or use of a deadly weapon. Criteria in WAC 388-740-0070 (2), (3), (4) and (5) are assessed by the juvenile parole officer to determine the type of revocation and duration of confinement for which to petition.

(2) The petition, on department forms, must include:

(a) A statement of the nature of the violation and the date it occurred;

(b) The relief requested by the juvenile parole officer as a result of the violation;

(c) Notice of the juvenile parolee's right to be represented by an attorney, either one of his/her own choosing or one appointed at public expense;

(d) A parole revocation hearing waiver agreement;

(e) The dated signature of the regional administrator or designee; and

(f) If the parole revocation hearing is not waived, notice of the time, date, and location of the parole revocation hearing and notice that failure to appear may result in default.

(3) An initial copy of the petition that includes the information described in subsection (2)(a) through (e) must:

(a) Be provided to the juvenile parolee or the juvenile parolee's attorney; and

(b) Be provided to the juvenile parolee's parent/guardian, if reasonably possible, and in accordance with laws and rules governing the release of confidential information. The juvenile parole officer must document the date and time he/she provided the initial copy of the petition to the juvenile parolee or the juvenile parolee's attorney.

(4) A juvenile parolee, only through an attorney, may waive the right to a parole revocation hearing and agree to the parole revocation and agreed upon relief. The decision to waive must be documented with dated signatures on the original petition.

(5) If the juvenile parolee through his/her attorney does not waive the right to a hearing, the parole revocation petition must be filed with the local office of the state office of administrative hearings within seventy-two hours (excluding Saturdays, Sundays, and holidays) of:

(a) The juvenile parolee being placed in detention for an alleged violation of parole conditions; or

(b) The juvenile parolee or his/her attorney being provided with a copy of the petition under subsection (3) of this section if the juvenile parolee is not detained.

(6) The filed petition must include notice that failure to appear may result in default, and the time, date, and location of the parole revocation hearing, as determined by the state office of administrative hearings. A copy of the filed petition must:

(a) Be served either personally or by certified mail, return receipt requested, on the juvenile parolee or the juvenile parolee's attorney; and

(b) Be provided to the juvenile parolee's parent/guardian, if reasonably possible, and in accordance with laws and rules governing the release of confidential information.

[Statutory Authority: RCW 13.40.020, 13.24.010. 00-17-046, recodified as 388-740-0040, filed 8/7/00, effective 8/27/00. Statutory Authority: RCW 72.01.090, 72.05.130 and 13.40.210. 99-03-077, 275-30-040, filed 1/19/99, effective 2/19/99. Statutory Authority: RCW 13.40.210. 88-20-083 (Order 2709), 275-30-040, filed 10/5/88.]


AMENDATORY SECTION(Amending WSR 00-17-046, filed 8/7/00, effective 8/27/00)

WAC 388-740-0070   Confinement.   (1) ((A juvenile's confinement for violating one or more conditions of parole, as alleged in a parole revocation petition, may not exceed thirty days. Confinement may be continuous, or for a portion of each day, or for certain days each week with the balance of time under supervision. The department must give the juvenile credit against any period of confinement for days served in detention pending a parole revocation hearing. The juvenile must serve his or her confinement in a county detention facility as defined in RCW 13.40.020, a juvenile rehabilitation administration facility, or, if the juvenile parolee is eighteen years old or older, the juvenile may serve his or her confinement in a county jail.

(2) If a juvenile's parole is revoked two or more times during one parole period, the secretary or designee must approve any period of confinement exceeding a combined total of thirty days.

(3) Instead of confinement under subsection (1) of this section, the secretary or designee may return the offender to confinement in an institution for the remainder of the sentence range if:

(a) The offense for which the offender was sentenced is rape in the first or second degree, rape of a child in the first or second degree, child molestation in the first degree, indecent liberties with forcible compulsion, or a sex offense that is also a serious violent offense as defined under RCW 9.94A.030; or

(b) As otherwise authorized in RCW 13.40.210.

(4))) Mandatory confinement.

A JRA youth must be confined for a minimum of thirty days for possession of a firearm or use of a deadly weapon while on parole, per RCW 13.40.210 (4)(c).

(2) Confinement for up to thirty days.

(a) A JRA youth may be confined for a period not to exceed thirty days for violating one or more conditions of parole, per RCW 13.40.210 (4)(a)(i) through (iv).

(b) Confinement may be continuous, or for a portion of each day, or for certain days each week with the balance of time under supervision.

(3) Confinement for remainder of sentence.

As provided for in RCW 13.40.210 (4)(a)(v) and (vi), certain JRA youth who are placed on parole before completing their maximum sentence may be returned to confinement for the remainder of their sentence if they violate conditions of parole.

(a) Sex Offenders: A JRA youth may be returned to confinement for the remainder of the sentence range if the offense for which the youth was sentenced is rape in the first or second degree, rape of a child in the first or second degree, child molestation in the first degree, indecent liberties with forcible compulsion, or a sex offense that is also a serious violent offense as defined under RCW 9.94A.030.

(i) The remainder of sentence is calculated as the maximum aggregated term of qualifying sex offenses, minus the number of days served on the aggregated sentence for the qualifying sex offense or offenses.

(ii) Previous days in confinement for a parole violation are not deducted in this calculation.

(iii) Aggregated terms are served such that any term or terms for qualifying sex offenses are considered the last served.

(b) Graduates of basic training camp: A JRA youth who has successfully completed the juvenile offender basic training camp program under RCW 13.40.320 may be returned to confinement for the remainder of their sentence range.

(i) The remainder of sentence is calculated as the maximum aggregated term or four hundred fifty-five days, whichever is shorter, minus the number of days served on their aggregated sentence and on active parole.

(ii) Previous days in confinement for a parole violation are not deducted in this calculation.

(4) Juvenile sex offender confinement for up to twenty-four weeks.

(a) As provided for in RCW 13.40.210 (4)(b), a JRA youth may be returned to confinement for up to twenty-four weeks if:

(i) The JRA youth was sentenced for a sex offense as defined in RCW 9A.44.130;

(ii) The JRA youth is known to have violated the terms of parole; and

(iii) In the determination of the secretary, other graduated sanctions or interventions have not been effective in controlling the youth's parole violations; or

(iv) The behavior is so egregious it warrants the use of the higher level intervention and the violation:

(A) Is a known pattern of behavior consistent with a previous sex offense that puts the JRA youth at high risk for reoffending sexually;

(B) Consists of sexual behavior that is determined to be predatory as defined in RCW 71.09.020; or

(C) Requires a review under chapter 71.09 RCW, due to a recent overt act.

(b) The total number of days of confinement under subsection (4) shall not exceed the number of days provided by the maximum sentence imposed by the disposition for the underlying sex offense or offenses pursuant to RCW 13.40.0357.

(c) The department shall not aggregate multiple parole violations that occur prior to the parole revocation hearing and impose consecutive twenty-four week periods of confinement for each parole violation under subsection (4).

(5) Criteria for juvenile sex offender confinement.

A parole revocation petition to confine a juvenile sex offender for the remainder of sentence under subsection (3) or for up to twenty-four weeks under subsection (4) will be based on, but not limited to, the following behavioral and sentence considerations:

(a) Behavioral criteria:

(i) Behavior that appears to constitute a new sex offense or a statement by the JRA youth reporting a new sex offense;

(ii) Statements by the JRA youth that he/she is at imminent risk to re-offend sexually unless confined;

(iii) Accessing, making or possessing child pornography;

(iv) Accessing, making or possessing pornography that depicts excessive physical violence, death or threats of death, torture or infliction of pain, use of a weapon, humiliation or bondage;

(v) Possession of materials which, in total, constitute a "rape kit";

(vi) Unsupervised contact with previous victim(s) or target victim populations, except for approved peer age contact (attending school, etc.);

(vii) Use, possession or providing of drugs and/or alcohol associated with the JRA youth's illegal sexualized behaviors.

(b) Available remainder of sentence range.

If the JRA youth has not served the maximum sentence imposed for the underlying offense or offenses, and confinement under WAC 388-740-0070 (3) or (4) are both available, the petition for relief will take into account whether the remainder of sentence is sufficient to accomplish the purposes of the revocation. If so, the petition will be for confinement for the remainder of the sentence range; if not, the petition will be for up to twenty-four weeks of confinement.

(6) If the JRA youth's parole is revoked, the department must give the youth credit against any period of confinement for days served in detention pending the parole revocation hearing.

(7) Serving confinement. The JRA youth must serve his or her confinement in a facility or detention facility as described in WAC 388-740-0010.

(8) If a juvenile's parole is revoked two or more times during one parole period, the secretary must approve any period of confinement exceeding a combined total of thirty days.

(9) Unless conditions of parole are otherwise amended, the order of parole conditions in effect at the time the parole was revoked shall be deemed reinstated immediately following any period of confinement.

[Statutory Authority: RCW 13.40.020, 13.24.010. 00-17-046, recodified as 388-740-0070, filed 8/7/00, effective 8/27/00. Statutory Authority: RCW 72.01.090, 72.05.130 and 13.40.210. 99-03-077, 275-30-070, filed 1/19/99, effective 2/19/99. Statutory Authority: RCW 13.40.210. 90-22-072 (Order 3091), 275-30-070, filed 11/6/90, effective 12/7/90; 88-20-083 (Order 2709), 275-30-070, filed 10/5/88.]

Washington State Code Reviser's Office