1581.E AMS EDU S2848.1

EHB 1581 - S COMM AMD

By Committee on Education

                                        ADOPTED AS AMENDED 4/17/97

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 13.40.160 and 1995 c 395 s 7 are each amended to read as follows:

    (1) When the respondent is found to be a serious offender, the court shall commit the offender to the department for the standard range of disposition for the offense, as indicated in option A of schedule D-3, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section.

    If the court concludes, and enters reasons for its conclusion, that disposition within the standard range would effectuate a manifest injustice the court shall impose a disposition outside the standard range, as indicated in option B of schedule D-3, RCW 13.40.0357.  The court's finding of manifest injustice shall be supported by clear and convincing evidence.

    A disposition outside the standard range shall be determinate and shall be comprised of confinement or community supervision, or a combination thereof.  When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  A disposition outside the standard range is appealable under RCW 13.40.230 by the state or the respondent.  A disposition within the standard range is not appealable under RCW 13.40.230.

    (2) Where the respondent is found to be a minor or first offender, the court shall order that the respondent serve a term of community supervision as indicated in option A or option B of schedule D-1, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section.  If the court determines that a disposition of community supervision would effectuate a manifest injustice the court may impose another disposition under option C of schedule D-1, RCW 13.40.0357.  Except as provided in subsection (5) of this section, a disposition other than a community supervision may be imposed only after the court enters reasons upon which it bases its conclusions that imposition of community supervision would effectuate a manifest injustice.  When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  The court's finding of manifest injustice shall be supported by clear and convincing evidence.

    Except for disposition of community supervision or a disposition imposed pursuant to subsection (5) of this section, a  disposition may be appealed as provided in RCW 13.40.230 by the state or the respondent.  A disposition of community supervision or a disposition imposed pursuant to subsection (5) of this section may not be appealed under RCW 13.40.230.

    (3) Where a respondent is found to have committed an offense for which the respondent declined to enter into a diversion agreement, the court shall impose a term of community supervision limited to the conditions allowed in a diversion agreement as provided in RCW 13.40.080(2).

    (4) If a respondent is found to be a middle offender:

    (a) The court shall impose a determinate disposition within the standard range(s) for such offense, as indicated in option A of schedule D-2, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section.  If the standard range includes a term of confinement exceeding thirty days, commitment shall be to the department for the standard range of confinement; or

    (b) If the middle offender has less than 110 points, the court shall impose a determinate disposition of community supervision and/or up to thirty days confinement, as indicated in option B of schedule D-2, RCW 13.40.0357 in which case, if confinement has been imposed, the court shall state either aggravating or mitigating factors as set forth in RCW 13.40.150.  If the middle offender has 110 points or more, the court may impose a disposition under option A and may suspend the disposition on the condition that the offender serve up to thirty days of confinement and follow all conditions of community supervision.  If the offender violates any condition of the disposition including conditions of a probation bond, the court may impose sanctions pursuant to RCW 13.40.200 or may revoke the suspension and order execution of the disposition.  The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.

    (c) Only if the court concludes, and enters reasons for its conclusions, that disposition as provided in subsection (4)(a) or (b) of this section would effectuate a manifest injustice, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range.  The court's finding of manifest injustice shall be supported by clear and convincing evidence.

    (d) A disposition pursuant to subsection (4)(c) of this section is appealable under RCW 13.40.230 by the state or the respondent.  A disposition pursuant to subsection (4)(a) or (b) of this section is not appealable under RCW 13.40.230.

    (5) When a serious, middle, or minor first offender is found to have committed a sex offense, other than a sex offense that is also a serious violent offense as defined by RCW 9.94A.030, and has no history of a prior sex offense, the court, on its own motion or the motion of the state or the respondent, may order an examination to determine whether the respondent is amenable to treatment.

    The report of the examination shall include at a minimum the following:  The respondent's version of the facts and the official version of the facts, the respondent's offense history, an assessment of problems in addition to alleged deviant behaviors, the respondent's social, educational, and employment situation, and other evaluation measures used.  The report shall set forth the sources of the evaluator's information.

    The examiner shall assess and report regarding the respondent's amenability to treatment and relative risk to the community.  A proposed treatment plan shall be provided and shall include, at a minimum:

    (a)(i) Frequency and type of contact between the offender and therapist;

    (ii) Specific issues to be addressed in the treatment and description of planned treatment modalities;

    (iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members, legal guardians, or others;

    (iv) Anticipated length of treatment; and

    (v) Recommended crime-related prohibitions.

    The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment.  The evaluator shall be selected by the party making the motion.  The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

    After receipt of reports of the examination, the court shall then consider whether the offender and the community will benefit from use of this special sex offender disposition alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this section.  If the court determines that this special sex offender disposition alternative is appropriate, then the court shall impose a determinate disposition within the standard range for the offense, and the court may suspend the execution of the disposition and place the offender on community supervision for up to two years.  As a condition of the suspended disposition, the court may impose the conditions of community supervision and other conditions, including up to thirty days of confinement and requirements that the offender do any one or more of the following:

    (b)(i) Devote time to a specific education, employment, or occupation;

    (ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense.  A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment.  The respondent shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the probation counselor, and the court, and shall not change providers without court approval after a hearing if the prosecutor or probation counselor object to the change;

    (iii) Remain within prescribed geographical boundaries and notify the court or the probation counselor prior to any change in the offender's address, educational program, or employment;

    (iv) Report to the prosecutor and the probation counselor prior to any change in a sex offender treatment provider.  This change shall have prior approval by the court;

    (v) Report as directed to the court and a probation counselor;

    (vi) Pay all court-ordered legal financial obligations, perform community service, or any combination thereof;

    (vii) Make restitution to the victim for the cost of any counseling reasonably related to the offense; ((or))

    (viii) Comply with the conditions of any court-ordered probation bond; or

(ix) The court shall order that the offender may not attend the public or approved private elementary, middle, or high school attended by the victim or the victim's siblings.  The parents or legal guardians of the offender are responsible for transportation or other costs associated with the offender's change of school that would otherwise be paid by the school district.  The court shall send notice of the disposition and restriction on attending the same school as the victim or victim's siblings to the public or approved private school the juvenile will attend, if known, or if unknown, to the approved private schools and the public school district board of directors of the district in which the juvenile resides or intends to reside.  This notice must be sent at the earliest possible date but not later than ten calendar days after entry of the disposition.

    The sex offender treatment provider shall submit quarterly reports on the respondent's progress in treatment to the court and the parties.  The reports shall reference the treatment plan and include at a minimum the following:  Dates of attendance, respondent's compliance with requirements, treatment activities, the respondent's relative progress in treatment, and any other material specified by the court at the time of the disposition.

    At the time of the disposition, the court may set treatment review hearings as the court considers appropriate.

    Except as provided in this subsection (5), after July 1, 1991, examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW.  A sex offender therapist who examines or treats a juvenile sex offender pursuant to this subsection does not have to be certified by the department of health pursuant to chapter 18.155 RCW if the court finds that:  (A) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (B) no certified providers are available for treatment within a reasonable geographical distance of the offender's home; and (C) the evaluation and treatment plan comply with this subsection (5) and the rules adopted by the department of health.

    If the offender violates any condition of the disposition or the court finds that the respondent is failing to make satisfactory progress in treatment, the court may revoke the suspension and order execution of the disposition or the court may impose a penalty of up to thirty days' confinement for violating conditions of the disposition.  The court may order both execution of the disposition and up to thirty days' confinement for the violation of the conditions of the disposition.  The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.

    For purposes of this section, "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.  "Victim" may also include a known parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

    (6) RCW 13.40.193 shall govern the disposition of any juvenile adjudicated of possessing a firearm in violation of RCW 9.41.040(1)(((e))) (b)(iii) or any crime in which a special finding is entered that the juvenile was armed with a firearm.

    (7) Whenever a juvenile offender is entitled to credit for time spent in detention prior to a dispositional order, the dispositional order shall specifically state the number of days of credit for time served.

    (8) Except as provided for in subsection (4)(b) or (5) of this section or RCW 13.40.125, the court shall not suspend or defer the imposition or the execution of the disposition.

    (9) In no case shall the term of confinement imposed by the court at disposition exceed that to which an adult could be subjected for the same offense.

    Sec. 2.  RCW 13.40.215 and 1995 c 324 s 1 are each amended to read as follows:

    (1)(a) Except as provided in subsection (2) of this section, at the earliest possible date, and in no event later than thirty days before discharge, parole, or any other authorized leave or release, or before transfer to a community residential facility, the secretary shall send written notice of the discharge, parole, authorized leave or release, or transfer of a juvenile found to have committed a violent offense, a sex offense, or stalking, to the following:

    (i) The chief of police of the city, if any, in which the juvenile will reside;

    (ii) The sheriff of the county in which the juvenile will reside; and

    (iii) The approved private schools and the common school district board of directors of the district in which the juvenile intends to reside or the approved private school or public school district in which the juvenile last attended school, whichever is appropriate, except when it has been determined by the department that the juvenile is twenty-one years old; is not required to return to school under chapter 28A.225 RCW; or will be in the community for less than seven consecutive days on approved leave and will not be attending school during that time.

    (b) After the effective date of this act, the department shall send a written notice to approved private and public schools under the same conditions identified in subsection (1)(a)(iii) of this section when a juvenile adjudicated of any offense is transferred to a community residential facility.

(c) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific juvenile:

    (i) The victim of the offense for which the juvenile was found to have committed or the victim's next of kin if the crime was a homicide;

    (ii) Any witnesses who testified against the juvenile in any court proceedings involving the offense; and

    (iii) Any person specified in writing by the prosecuting attorney.

Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the juvenile.  The notice to the chief of police or the sheriff shall include the identity of the juvenile, the residence where the juvenile will reside, the identity of the person, if any, responsible for supervising the juvenile, and the time period of any authorized leave.

    (((c))) (d) The thirty-day notice requirements contained in this subsection shall not apply to emergency medical furloughs.

    (((d))) (e) The existence of the notice requirements in this subsection will not require any extension of the release date in the event the release plan changes after notification.

    (2)(a) If a juvenile found to have committed a violent offense, a sex offense, or stalking escapes from a facility of the department, the secretary shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the juvenile resided immediately before the juvenile's arrest.  If previously requested, the secretary shall also notify the witnesses and the victim of the offense which the juvenile was found to have committed or the victim's next of kin if the crime was a homicide.  If the juvenile is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture.

    (b) The secretary may authorize a leave, for a juvenile found to have committed a violent offense, a sex offense, or stalking, which shall not exceed forty-eight hours plus travel time, to meet an emergency situation such as a death or critical illness of a member of the juvenile's family.  The secretary may authorize a leave, which shall not exceed the time medically necessary, to obtain medical care not available in a juvenile facility maintained by the department.  Prior to the commencement of an emergency or medical leave, the secretary shall give notice of the leave to the appropriate law enforcement agency in the jurisdiction in which the juvenile will be during the leave period.  The notice shall include the identity of the juvenile, the time period of the leave, the residence of the juvenile during the leave, and the identity of the person responsible for supervising the juvenile during the leave.  If previously requested, the department shall also notify the witnesses and victim of the offense which the juvenile was found to have committed or the victim's next of kin if the offense was a homicide.

    In case of an emergency or medical leave the secretary may waive all or any portion of the requirements for leaves pursuant to RCW 13.40.205 (2)(a), (3), (4), and (5).

    (3) If the victim, the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child.

    (4) The secretary shall send the notices required by this chapter to the last address provided to the department by the requesting party.  The requesting party shall furnish the department with a current address.

    (5) Upon discharge, parole, or other authorized leave or release, a convicted juvenile sex offender shall not attend a public or approved private elementary, middle, or high school that is attended by a victim or a sibling of a victim of the sex offender.  The parents or legal guardians of the convicted juvenile sex offender shall be responsible for transportation or other costs associated with or required by the sex offender's change in school that otherwise would be paid by a school district.  Upon discharge, parole, or other authorized leave or release of a convicted juvenile sex offender, the secretary shall send written notice of the discharge, parole, or other authorized leave or release and the requirements of this subsection to the common school district board of directors of the district in which the sex offender intends to reside or the district in which the sex offender last attended school, whichever is appropriate.  The secretary shall send a similar notice to any approved private school the juvenile will attend, if known, or if unknown, to the approved private schools within the district the juvenile resides or intends to reside.

    (6) For purposes of this section the following terms have the following meanings:

    (a) "Violent offense" means a violent offense under RCW 9.94A.030;

    (b) "Sex offense" means a sex offense under RCW 9.94A.030;

    (c) "Stalking" means the crime of stalking as defined in RCW 9A.46.110;

    (d) "Next of kin" means a person's spouse, parents, siblings, and children.

    Sec. 3.  RCW 28A.225.225 and 1995 c 52 s 3 are each amended to read as follows:

    (1) All districts accepting applications from nonresident students or from students receiving home-based instruction for admission to the district's schools shall consider equally all applications received.  Each school district shall adopt a policy establishing rational, fair, and equitable standards for acceptance and rejection of applications by June 30, 1990.  The policy may include rejection of a nonresident student((s)) if:

(a) Acceptance of ((these)) a nonresident student((s)) would result in the district experiencing a financial hardship;

(b) The student's disciplinary records indicate a history of violent or disruptive behavior or gang membership; or

(c) The student has been expelled or suspended from a public school for more than ten consecutive days.  Any policy allowing for readmission of expelled or suspended students under this subsection (1)(c) must apply uniformly to both resident and nonresident applicants.

For purposes of subsection (1)(b) of this section, "gang" means an organization, association, or group of three or more persons that has a common name or identifying sign or symbol and whose members, individually or collectively, commit or have committed two or more acts that: Support or further the purposes or activities of the organization, association, or group; and are a violation of state or federal criminal law or include planning, organizing, financing, soliciting, or threatening the commission of an act that is a violation of state or federal criminal law.

    (2) The district shall provide to applicants written notification of the approval or denial of the application in a timely manner.  If the application is rejected, the notification shall include the reason or reasons for denial and the right to appeal under RCW 28A.225.230(3).

    Sec. 4.  RCW 28A.600.010 and 1990 c 33 s 496 are each amended to read as follows:

    Every board of directors, unless otherwise specifically provided by law, shall:

    (1) Enforce the rules ((and regulations)) prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils, and certificated employees.

    (2) Adopt and make available to each pupil, teacher and parent in the district reasonable written rules ((and regulations)) regarding pupil conduct, discipline, and rights, including but not limited to short-term suspensions as referred to in RCW 28A.305.160 and ((long-term)) suspensions in excess of ten consecutive days.  Such rules ((and regulations)) shall not be inconsistent with any of the following:  Federal statutes and regulations, state statutes, common law ((or)), the rules ((and regulations)) of the superintendent of public instruction ((or)), and the state board of education ((and)).  The board's rules shall include such substantive and procedural due process guarantees as prescribed by the state board of education under RCW 28A.305.160.  Commencing with the 1976‑77 school year, when such rules ((and regulations)) are made available to each pupil, teacher, and parent, they shall be accompanied by a detailed description of rights, responsibilities, and authority of teachers and principals with respect to the discipline of pupils as prescribed by state statutory law, superintendent of public instruction, and state board of education rules ((and regulations)) and rules and regulations of the school district.

    For the purposes of this subsection, computation of days included in "short-term" and "long-term" suspensions shall be determined on the basis of consecutive school days.

    (3) Suspend, expel, or discipline pupils in accordance with RCW 28A.305.160.

    Sec. 5.  RCW 28A.600.420 and 1995 c 335 s 304 are each amended to read as follows:

    (1) Any elementary or secondary school student who is determined to have carried a firearm onto, or to have possessed a firearm on, public elementary or secondary school premises, public school-provided transportation, or areas of facilities while being used exclusively by public schools, shall be expelled from school for not less than one year under RCW 28A.600.010.  The superintendent of the school district, educational service district, state school for the deaf, or state school for the blind may modify the expulsion of a student on a case-by-case basis.

    (2) For purposes of this section, "firearm" means a firearm as defined in 18 U.S.C. Sec. 921, and a "firearm" as defined in RCW 9.41.010.

    (3) This section shall be construed in a manner consistent with the individuals with disabilities education act, 20 U.S.C. Sec. 1401 et seq.

    (4) Nothing in this section prevents a public school district, educational service district, the state school for the deaf, or the state school for the blind if it has expelled a student from such student's regular school setting from providing educational services to the student in an alternative setting.

    (5) This section does not apply to:

    (a) Any student while engaged in military education authorized by school authorities in which rifles are used but not other firearms; or

    (b) Any student while involved in a convention, showing, demonstration, lecture, or firearms safety course authorized by school authorities in which the rifles of collectors or instructors are handled or displayed but not other firearms; or

    (c) Any student while participating in a rifle competition authorized by school authorities.

(6) A school district may suspend or expel a student for up to one year subject to subsections (1), (3), (4), and (5) of this section, if the student acts with malice as defined under RCW 9A.04.110 and displays an instrument that appeared to be a firearm, on public elementary or secondary school premises, public school-provided transportation, or areas of facilities while being used exclusively by public schools.

NEW SECTION. Sec. 6.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."

EHB 1581 - S COMM AMD

By Committee on Education

                                                   ADOPTED 4/17/97

    On page 1, line 1 of the title, after "schools;" strike the remainder of the title and insert "amending RCW 13.40.160, 13.40.215, 28A.225.225, 28A.600.010, and 28A.600.420; and prescribing penalties."

                            --- END ---