HOUSE BILL REPORT

                  HB 1140

             As Reported By House Committee On:

                         Corrections

Title:  An act relating to the use of criminal history in sentencing of offenders.

Brief Description:  Revising procedures for using criminal history in sentencing of offenders.

Sponsors:  Representatives Ballasiotes, Horn, Blanton, Costa and Honeyford.

Brief History:

  Committee Activity:

Corrections:  2/7/95, 2/15/95 [DPS].

HOUSE COMMITTEE ON CORRECTIONS

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  Signed by 10 members:  Representatives Ballasiotes, Chairman; Blanton, Vice Chairman; Sherstad, Vice Chairman; Quall, Ranking Minority Member; Tokuda, Assistant Ranking Minority Member; Cole; Dickerson; Koster; Radcliff and Schoesler.

Staff:  Rick Neidhardt (786-7841).

Background:  The sentencing of adult felons is governed by the Sentencing Reform Act (SRA). The SRA sets out standard ranges of punishment to guide judicial sentencing decisions. The standard ranges are determined from two factors, one of which is the felon's criminal history. 

Under the SRA, a defendant's criminal history is "scored" and assigned a number of points.  The more serious the criminal history, the higher the defendant's point total, and in turn, the longer the defendant's standard range of confinement.

The general rule is that a defendant receives a certain number of points for each felony in the defendant's criminal history.  This general rule has many exceptions.  This bill deals with some of these exceptions.

"Washout" provisions.  Some offenses in a defendant's criminal history are not scored if enough time has elapsed since the time of the conviction.  When this happens, the prior offense is said to "wash out" from the defendant's criminal history.  The SRA's washout provisions for prior adult convictions are as follows:

!Previous convictions of class A felonies and sex offenses are always included. 

!A class B felony washes out if the defendant subsequently spends a 10-year period in the community without being convicted of any felonies.

!A class C felony washes out if the defendant subsequently spends a five-year period in the community without being convicted of any felonies. 

!A serious traffic offense washes out if the defendant subsequently spends a five-year period in the community without being convicted of any serious traffic or felony traffic offenses.

A concern exists that an offense should wash out only if for the relevant period of time the defendant does not commit any crimes at all, not just felonies. 

There is a related concern that the focus should be on the date when the subsequent offense is committed, not on the date when the conviction is entered for that offense.

Federal convictions.  A defendant's criminal history under the SRA does not include any out-of-state felony unless it has a clearly comparable Washington counterpart. 

Many federal felonies do not have comparable Washington counterparts.  Accordingly, these felonies are not included in scoring the defendant's criminal history.

Prior concurrently-served sentences.  As a general rule, each felony that does not wash out of a defendant's criminal history is separately scored.  Special rules apply, however, when two or more of the defendant's previous convictions were concurrently served.  Under some circumstances, prior concurrently-served sentences are counted as a single offense.

One set of rules applies to prior offenses that were committed before July 1, 1986.  For these prior offenses that were concurrently served, they are counted as only one offense.  The judge counts only the offense that results in the higher offender score.

Another set of rules applies if the defendant's previous offenses were committed on or after July 1, 1986.  For these prior offenses that were concurrently served, they are counted as a single offense if the judge at the earlier sentencing specifically found that the offenses arose out of the same criminal conduct.  The one offense that is scored is the one which yields the higher offender score.  Sometimes, however, prior offenses were concurrently served even though the previous sentencing judge did not specifically find that the offenses arose out of the same criminal conduct.  In these circumstances, the current sentencing judge has discretion whether to include each of the prior convictions separately or to instead include two or more of the convictions as a single offense.  A concern exists that this discretion should be more limited.

The SRA does not specifically define the term "concurrently served" in the context of scoring criminal history.  Without special limitation, this term includes probation or parole revocations resulting from pre-SRA convictions, even though sometimes this can result in an offender who successfully completes probation or parole being given a higher offender score than an offender who fails probation or parole.

Exceptional sentences.  A sentencing judge can impose a sentence above the applicable standard range of confinement.  To do so, the judge must conclude that "substantial and compelling reasons" justify a longer sentence. 

The SRA provides a list of aggravating circumstances that can justify a sentence longer than the standard range.  The list is only illustrative; judges may find that other circumstances also qualify as substantial and compelling reasons to impose a longer sentence. 

Washington's courts have held that prior unscored misdemeanor offenses can justify a sentence longer than the standard range.  The SRA does not specifically include this reason in its list of illustrative aggravating circumstances. 

Summary of Substitute Bill:

"Washout" provisions.  The conditions under which adult offenses can wash out of criminal history are changed.  Whereas previously an offense could wash out depending on how long the defendant was in the community without being convicted of a felony, an offense now washes out depending on how long the defendant has been in the community without committing any new crime.  The new crime will prevent a prior offense from washing out only if the offender is convicted of the new crime. 

Federal convictions.  A federal felony that does not have a clearly comparable Washington counterpart is included in a defendant's criminal history as a class C felony.

Prior concurrently-served sentences.  Concurrently served sentences are defined to mean sentences where a judge specifically identifies each sentence and orders them to run concurrently.  The definition excludes parole or probation revocations.

The bill also changes the rules for scoring prior concurrently-served offenses that were committed on or after July 1, 1986.  When scoring these prior concurrently-served convictions, the judge is to determine if the offenses arose out of the same criminal conduct.  When the prior offenses arose out of the same criminal conduct, the judge is to score only the one offense that results in the higher offender score.  When prior offenses did not arise out of the same criminal conduct, the judge is to score each offense separately.  The judge may presume that offenses did not arise from the same criminal conduct if they were sentenced in separate counties, on separate dates, or under separate charging documents.

Exceptional sentences.  The SRA's list of illustrative aggravating circumstances is expanded to include unscored misdemeanor convictions and unscored foreign convictions.

Substitute Bill Compared to Original Bill:  The original bill did not specify that a new crime must result in a conviction before it can be used to prevent prior offenses from washing out from criminal  history.

Appropriation:  None.

Fiscal Note:  Available.

Effective Date of Substitute Bill:  Ninety days after adjournment of session in which bill is passed.

Testimony For:   The statute on scoring prior offenses needs amendment to operate as intended by the Legislature.  Federal convictions are too often excluded from criminal history.  Criminal history should not wash out unless a defendant has been crime-free for a certain period of time.  Judicial discretion needs to be guided in the area of concurrent prior offenses.  The statute, when applied to concurrent prior offenses involving probation or parole revocations, leads to unintended results.  The changes in this bill will not apply to any first-time offenders, only to offenders who have a criminal history.

Testimony Against:  None.

Testified:   Tom McBride, Washington Association of Prosecuting Attorneys (pro).