AN
ACT Relating to reorganization of, and technical, clarifying, nonsubstantive
amendments to, community supervision and sentencing provisions; amending RCW
9.94A.190, 9.94A.390, 9.94A.130, 9.94A.210, 9.94A.370, 9.94A.383, 9.94A.400,
9.94A.410, 9.94A.137, 9.94A.135, 9.94A.180, 9.94A.185, 9.94A.145, 18.155.010,
18.155.020, 18.155.030, 46.61.524, and 9.94A.395; reenacting and amending RCW
9.94A.030, 9.94A.120, 9.94A.310, 9.94A.360, 9.94A.440, 9.94A.150, 9.94A.140,
9.94A.142, and 9.94A.040; adding new sections to chapter 9.94A RCW; creating
new sections; providing an effective date; and providing an expiration date.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
PART
I
General Provisions
NEW
SECTION. Sec. 1. The
sentencing reform act has been amended many times since its enactment in 1981.
While each amendment promoted a valid public purpose, some sections of the act
have become unduly lengthy and repetitive. The legislature finds that it is
appropriate to adopt clarifying amendments to make the act easier to use and
understand.
The
legislature does not intend this act to make, and no provision of this act
shall be construed as making, a substantive change in the sentencing reform
act.
The
legislature does intend to clarify that persistent offenders are not eligible
for extraordinary medical placement.
Sec.
2. RCW
9.94A.030 and 1999 c 352 s 8, 1999 c 197 s 1, and 1999 c 196 s 2 are each
reenacted and amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Collect," or any derivative thereof, "collect and remit,"
or "collect and deliver," when used with reference to the department
((of corrections)), means that the department, either directly or
through a collection agreement authorized by RCW 9.94A.145, is responsible for
monitoring and enforcing the offender's sentence with regard to the legal
financial obligation, receiving payment thereof from the offender, and,
consistent with current law, delivering daily the entire payment to the
superior court clerk without depositing it in a departmental account.
(2)
"Commission" means the sentencing guidelines commission.
(3)
"Community corrections officer" means an employee of the department
who is responsible for carrying out specific duties in supervision of sentenced
offenders and monitoring of sentence conditions.
(4)
"Community custody" means that portion of an offender's sentence of
confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.120
(((5), (6), (7), (8), (10), or (11),)) (2)(b), sections 18 through 25
of this act, or RCW 9.94A.383, served in the community subject to controls
placed on the offender's movement and activities by the department ((of
corrections)). For offenders placed on community custody for crimes
committed on or after July 1, 2000, the department shall assess the offender's
risk of reoffense and may establish and modify conditions of community custody,
in addition to those imposed by the court, based upon the risk to community
safety.
(5)
"Community custody range" means the minimum and maximum period of
community custody included as part of a sentence under ((RCW 9.94A.120(11)))
section 25 of this act, as established by the ((sentencing guidelines))
commission or the legislature under RCW 9.94A.040, for crimes committed on or
after July 1, 2000.
(6)
"Community placement" means that period during which the offender is
subject to the conditions of community custody and/or postrelease supervision,
which begins either upon completion of the term of confinement (postrelease
supervision) or at such time as the offender is transferred to community
custody in lieu of earned release. Community placement may consist of entirely
community custody, entirely postrelease supervision, or a combination of the
two.
(7)
"Community service" means compulsory service, without compensation,
performed for the benefit of the community by the offender.
(8)
"Community supervision" means a period of time during which a
convicted offender is subject to crime-related prohibitions and other sentence
conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or
46.61.524. ((For first-time offenders, the supervision may include
crime-related prohibitions and other conditions imposed pursuant to RCW
9.94A.120(5).)) Where the court finds that any offender has a chemical
dependency that has contributed to his or her offense, the conditions of supervision
may, subject to available resources, include treatment. For purposes of the
interstate compact for out-of-state supervision of parolees and probationers,
RCW 9.95.270, community supervision is the functional equivalent of probation
and should be considered the same as probation by other states.
(9)
"Confinement" means total or partial confinement ((as defined in
this section)).
(10)
"Conviction" means an adjudication of guilt pursuant to Titles 10 or
13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of
a plea of guilty.
(11)
(("Court-ordered legal financial obligation" means a sum of money
that is ordered by a superior court of the state of Washington for legal
financial obligations which may include restitution to the victim, statutorily
imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035,
court costs, county or interlocal drug funds, court-appointed attorneys' fees,
and costs of defense, fines, and any other financial obligation that is assessed
to the offender as a result of a felony conviction. Upon conviction for
vehicular assault while under the influence of intoxicating liquor or any drug,
RCW 46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense of an
emergency response to the incident resulting in the conviction, subject to the
provisions in RCW 38.52.430.
(12)))
"Crime-related prohibition" means an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the
offender has been convicted, and shall not be construed to mean orders
directing an offender affirmatively to participate in rehabilitative programs
or to otherwise perform affirmative conduct. However, affirmative acts
necessary to monitor compliance with the order of a court may be required by
the department.
(((13)))
(12) "Criminal history" means the list of a defendant's prior
convictions and juvenile adjudications, whether in this state, in federal
court, or elsewhere. The history shall include, where known, for each
conviction (a) whether the defendant has been placed on probation and the
length and terms thereof; and (b) whether the defendant has been incarcerated
and the length of incarceration.
(((14)))
(13) "Day fine" means a fine imposed by the sentencing ((judge))
court that equals the difference between the offender's net daily income
and the reasonable obligations that the offender has for the support of the
offender and any dependents.
(((15)))
(14) "Day reporting" means a program of enhanced supervision
designed to monitor the ((defendant's)) offender's daily
activities and compliance with sentence conditions, and in which the ((defendant))
offender is required to report daily to a specific location designated
by the department or the sentencing ((judge)) court.
(((16)))
(15) "Department" means the department of corrections.
(((17)))
(16) "Determinate sentence" means a sentence that states with
exactitude the number of actual years, months, or days of total confinement, of
partial confinement, of community supervision, the number of actual hours or
days of community service work, or dollars or terms of a legal financial
obligation. The fact that an offender through (("))earned
release((")) can reduce the actual period of confinement shall not
affect the classification of the sentence as a determinate sentence.
(((18)))
(17) "Disposable earnings" means that part of the earnings of
an ((individual)) offender remaining after the deduction from
those earnings of any amount required by law to be withheld. For the purposes
of this definition, "earnings" means compensation paid or payable for
personal services, whether denominated as wages, salary, commission, bonuses,
or otherwise, and, notwithstanding any other provision of law making the
payments exempt from garnishment, attachment, or other process to satisfy a
court-ordered legal financial obligation, specifically includes periodic
payments pursuant to pension or retirement programs, or insurance policies of
any type, but does not include payments made under Title 50 RCW, except as
provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.
(18)
"Drug offender sentencing alternative" is a sentencing option
available to persons convicted of a felony offense other than a violent offense
or a sex offense and who are eligible for the option under section 19 of this
act.
(19)
"Drug offense" means:
(a)
Any felony violation of chapter 69.50 RCW except possession of a controlled
substance (RCW 69.50.401(d)) or forged prescription for a controlled substance
(RCW 69.50.403);
(b)
Any offense defined as a felony under federal law that relates to the
possession, manufacture, distribution, or transportation of a controlled
substance; or
(c)
Any out-of-state conviction for an offense that under the laws of this state
would be a felony classified as a drug offense under (a) of this subsection.
(20)
"Earned release" means earned release from confinement as provided in
RCW 9.94A.150.
(((20)))
(21) "Escape" means:
(a)
Escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW
9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful
failure to return from work release (RCW 72.65.070), or willful failure to be
available for supervision by the department while in community custody (RCW
72.09.310); or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as an escape under (a) of this
subsection.
(((21)))
(22) "Felony traffic offense" means:
(a)
Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding
a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW
46.52.020(4)); or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a felony traffic offense under (a)
of this subsection.
(((22)))
(23) "Fine((s))" means ((the requirement that the
offender pay)) a specific sum of money ordered by the sentencing court
to be paid by the offender to the court over a specific period of time ((to
the court)).
(((23)))
(24) "First-time offender" means any person who ((is
convicted of a felony (a) not classified as a violent offense or a sex offense
under this chapter, or (b) that is not the manufacture, delivery, or possession
with intent to manufacture or deliver a controlled substance classified in
Schedule I or II that is a narcotic drug or flunitrazepam classified in
Schedule IV, nor the manufacture, delivery, or possession with intent to
deliver methamphetamine, its salts, isomers, and salts of its isomers as
defined in RCW 69.50.206(d)(2), nor the selling for profit of any controlled
substance or counterfeit substance classified in Schedule I, RCW 69.50.204,
except leaves and flowering tops of marihuana, who previously has never been
convicted of a felony in this state, federal court, or another state, and who
has never participated in a program of deferred prosecution for a felony
offense)) has no prior convictions for a felony and is eligible for the
first-time offender waiver under section 18 of this act.
(((24)))
(25) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private residence
subject to electronic surveillance.
(((25)))
(26) "Legal financial obligation" means a sum of money that is
ordered by a superior court of the state of Washington for legal financial
obligations which may include restitution to the victim, statutorily imposed
crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court
costs, county or interlocal drug funds, court-appointed attorneys' fees, and
costs of defense, fines, and any other financial obligation that is assessed to
the offender as a result of a felony conviction. Upon conviction for vehicular
assault while under the influence of intoxicating liquor or any drug, RCW
46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense of an
emergency response to the incident resulting in the conviction, subject to RCW
38.52.430.
(27)
"Most serious offense" means any of the following felonies or a
felony attempt to commit any of the following felonies((, as now existing or
hereafter amended)):
(a)
Any felony defined under any law as a class A felony or criminal solicitation
of or criminal conspiracy to commit a class A felony;
(b)
Assault in the second degree;
(c)
Assault of a child in the second degree;
(d)
Child molestation in the second degree;
(e)
Controlled substance homicide;
(f)
Extortion in the first degree;
(g)
Incest when committed against a child under age fourteen;
(h)
Indecent liberties;
(i)
Kidnapping in the second degree;
(j)
Leading organized crime;
(k)
Manslaughter in the first degree;
(l)
Manslaughter in the second degree;
(m)
Promoting prostitution in the first degree;
(n)
Rape in the third degree;
(o)
Robbery in the second degree;
(p)
Sexual exploitation;
(q)
Vehicular assault;
(r)
Vehicular homicide, when proximately caused by the driving of any vehicle by
any person while under the influence of intoxicating liquor or any drug as
defined by RCW 46.61.502, or by the operation of any vehicle in a reckless
manner;
(s)
Any other class B felony offense with a finding of sexual motivation((, as
"sexual motivation" is defined under this section));
(t)
Any other felony with a deadly weapon verdict under RCW 9.94A.125;
(u)
Any felony offense in effect at any time prior to December 2, 1993, that is
comparable to a most serious offense under this subsection, or any federal or
out-of-state conviction for an offense that under the laws of this state would
be a felony classified as a most serious offense under this subsection;
(v)(i)
A prior conviction for indecent liberties under RCW 9A.88.100(1) (a), (b), and
(c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979,
RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June
11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986,
until July 1, 1988;
(ii)
A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it
existed from June 11, 1986, until July 1, 1988, if: (A) The crime was
committed against a child under the age of fourteen; or (B) the relationship
between the victim and perpetrator is included in the definition of indecent
liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through
July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993,
through July 27, 1997.
(((26)))
(28) "Nonviolent offense" means an offense which is not a
violent offense.
(((27)))
(29) "Offender" means a person who has committed a felony
established by state law and is eighteen years of age or older or is less than
eighteen years of age but whose case is under superior court jurisdiction under
RCW 13.04.030 or has been transferred by the appropriate juvenile court to a
criminal court pursuant to RCW 13.40.110. Throughout this chapter, the terms
"offender" and "defendant" are used interchangeably.
(((28)))
(30) "Partial confinement" means confinement for no more than
one year in a facility or institution operated or utilized under contract by
the state or any other unit of government, or, if home detention or work crew
has been ordered by the court, in an approved residence, for a substantial
portion of each day with the balance of the day spent in the community.
Partial confinement includes work release, home detention, work crew, and a
combination of work crew and home detention ((as defined in this section)).
(((29)))
(31) "Persistent offender" is an offender who:
(a)(i)
Has been convicted in this state of any felony considered a most serious
offense; and
(ii)
Has, before the commission of the offense under (a) of this subsection, been
convicted as an offender on at least two separate occasions, whether in this
state or elsewhere, of felonies that under the laws of this state would be
considered most serious offenses and would be included in the offender score
under RCW 9.94A.360; provided that of the two or more previous convictions, at
least one conviction must have occurred before the commission of any of the
other most serious offenses for which the offender was previously convicted; or
(b)(i)
Has been convicted of: (A) Rape in the first degree, rape of a child in the
first degree, child molestation in the first degree, rape in the second degree,
rape of a child in the second degree, or indecent liberties by forcible
compulsion; (B) murder in the first degree, murder in the second degree,
homicide by abuse, kidnapping in the first degree, kidnapping in the second
degree, assault in the first degree, assault in the second degree, assault of a
child in the first degree, or burglary in the first degree, with a finding of
sexual motivation; or (C) an attempt to commit any crime listed in this
subsection (((29))) (31)(b)(i); and
(ii)
Has, before the commission of the offense under (b)(i) of this subsection, been
convicted as an offender on at least one occasion, whether in this state or
elsewhere, of an offense listed in (b)(i) of this subsection. A conviction for
rape of a child in the first degree constitutes a conviction under ((subsection
(29)))(b)(i) of this subsection only when the offender was sixteen
years of age or older when the offender committed the offense. A conviction
for rape of a child in the second degree constitutes a conviction under ((subsection
(29)))(b)(i) of this subsection only when the offender was eighteen
years of age or older when the offender committed the offense.
(((30)))
(32) "Postrelease supervision" is that portion of an
offender's community placement that is not community custody.
(((31)))
(33) "Restitution" means ((the requirement that the
offender pay)) a specific sum of money ((over a specific period of time
to the court)) ordered by the sentencing court to be paid by the
offender to the court over a specified period of time as payment of
damages. The sum may include both public and private costs. ((The
imposition of a restitution order does not preclude civil redress.
(32))) (34)
"Risk assessment" means the application of an objective instrument
supported by research and adopted by the department for the purpose of
assessing an offender's risk of reoffense, taking into consideration the nature
of the harm done by the offender, place and circumstances of the offender
related to risk, the offender's relationship to any victim, and any information
provided to the department by victims. The results of a risk assessment shall
not be based on unconfirmed or unconfirmable allegations.
(((33)))
(35) "Serious traffic offense" means:
(a)
Driving while under the influence of intoxicating liquor or any drug (RCW
46.61.502), actual physical control while under the influence of intoxicating
liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or
hit-and-run an attended vehicle (RCW 46.52.020(5)); or
(b)
Any federal, out-of-state, county, or municipal conviction for an offense that
under the laws of this state would be classified as a serious traffic offense
under (a) of this subsection.
(((34)))
(36) "Serious violent offense" is a subcategory of violent
offense and means:
(a)(i)
Murder in the first degree((,));
(ii)
Homicide by abuse((,));
(iii)
Murder in the second degree((,));
(iv)
Manslaughter in the first degree((,));
(v)
Assault in the first degree((,));
(vi)
Kidnapping in the first degree((, or));
(vii)
Rape in the first degree((,));
(viii)
Assault of a child in the first degree((,)); or
(ix)
An attempt, criminal solicitation, or criminal conspiracy to commit one of
these felonies; or
(b)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a serious violent offense under (a)
of this subsection.
(((35)
"Sentence range" means the sentencing court's discretionary range in
imposing a nonappealable sentence.
(36))) (37)
"Sex offense" means:
(a)
A felony that is a violation of:
(i)
Chapter 9A.44 RCW((,)) other than RCW 9A.44.130(((10), or)) (11);
(ii)
RCW 9A.64.020 ((or));
(iii)
RCW 9.68A.090; or
(iv)
A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal
solicitation, or criminal conspiracy to commit such crimes;
(b)
Any conviction for a felony offense in effect at any time prior to July 1,
1976, that is comparable to a felony classified as a sex offense in (a) of this
subsection;
(c)
A felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135;
or
(d)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a sex offense under (a) of this
subsection.
(((37)))
(38) "Sexual motivation" means that one of the purposes for
which the defendant committed the crime was for the purpose of his or her
sexual gratification.
(((38)))
(39) "Standard sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(40)
"Statutory maximum sentence" means the maximum length of time for
which an offender may be confined as punishment for a crime as prescribed in
chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other
statute defining the maximum penalty for a crime.
(41)
"Total confinement" means confinement inside the physical boundaries
of a facility or institution operated or utilized under contract by the state
or any other unit of government for twenty-four hours a day, or pursuant to RCW
72.64.050 and 72.64.060.
(((39)))
(42) "Transition training" means written and verbal
instructions and assistance provided by the department to the offender during
the two weeks prior to the offender's successful completion of the work ethic
camp program. The transition training shall include instructions in the
offender's requirements and obligations during the offender's period of
community custody.
(((40)))
(43) "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.
(((41)))
(44) "Violent offense" means:
(a)
Any of the following felonies((, as now existing or hereafter amended)):
(i)
Any felony defined under any law as a class A felony or an attempt to commit a
class A felony((,));
(ii)
Criminal solicitation of or criminal conspiracy to commit a class A
felony((,));
(iii)
Manslaughter in the first degree((,));
(iv)
Manslaughter in the second degree((,));
(v)
Indecent liberties if committed by forcible compulsion((,));
(vi)
Kidnapping in the second degree((,));
(vii)
Arson in the second degree((,));
(viii)
Assault in the second degree((,));
(ix)
Assault of a child in the second degree((,));
(x)
Extortion in the first degree((,));
(xi)
Robbery in the second degree((,));
(xii)
Drive-by shooting((,));
(xiii)
Vehicular assault((,)); and
(xiv)
Vehicular homicide, when proximately caused by the driving of any vehicle
by any person while under the influence of intoxicating liquor or any drug as
defined by RCW 46.61.502, or by the operation of any vehicle in a reckless
manner;
(b)
Any conviction for a felony offense in effect at any time prior to July 1,
1976, that is comparable to a felony classified as a violent offense in (a) of
this subsection; and
(c)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a violent offense under (a) or (b)
of this subsection.
(((42)))
(45) "Work crew" means a program of partial confinement
consisting of civic improvement tasks for the benefit of the community ((of
not less than thirty-five hours per week)) that complies with RCW
9.94A.135. ((The civic improvement tasks shall have minimal negative impact
on existing private industries or the labor force in the county where the service
or labor is performed. The civic improvement tasks shall not affect employment
opportunities for people with developmental disabilities contracted through
sheltered workshops as defined in RCW 82.04.385. Only those offenders
sentenced to a facility operated or utilized under contract by a county or the
state, or sanctioned under RCW 9.94A.205, are eligible to participate on a work
crew. Offenders sentenced for a sex offense as defined in subsection (36) of
this section are not eligible for the work crew program.
(43))) (46)
"Work ethic camp" means an alternative incarceration program as
provided in RCW 9.94A.137 designed to reduce recidivism and lower the cost
of corrections by requiring offenders to complete a comprehensive array of
real-world job and vocational experiences, character-building work ethics
training, life management skills development, substance abuse rehabilitation,
counseling, literacy training, and basic adult education.
(((44)))
(47) "Work release" means a program of partial confinement
available to offenders who are employed or engaged as a student in a regular
course of study at school. ((Participation in work release shall be
conditioned upon the offender attending work or school at regularly defined
hours and abiding by the rules of the work release facility.))
NEW
SECTION. Sec. 3. For
purposes of judicial and criminal justice forms promulgated under this chapter
and related to corrections and sentencing, the terms "offender" and
"defendant" may be used interchangeably without substantive effect.
This
section expires July 1, 2005.
Sec.
4. RCW
9.94A.190 and 1995 c 108 s 4 are each amended to read as follows:
(1)
A sentence that includes a term or terms of confinement totaling more than one
year shall be served in a facility or institution operated, or utilized under
contract, by the state. Except as provided ((for)) in subsection (3) of
this section, a sentence of not more than one year of confinement shall be
served in a facility operated, licensed, or utilized under contract, by the
county, or if home detention or work crew has been ordered by the court, in the
residence of either the ((defendant)) offender or a member of the
((defendant's)) offender's immediate family.
(2)
If a county uses a state partial confinement facility for the partial
confinement of a person sentenced to confinement for not more than one year,
the county shall reimburse the state for the use of the facility as provided ((for))
in this subsection. The office of financial management shall set the rate of
reimbursement based upon the average per diem cost per offender in the
facility. The office of financial management shall determine to what extent,
if any, reimbursement shall be reduced or eliminated because of funds provided
by the legislature to the department ((of corrections)) for the purpose
of covering the cost of county use of state partial confinement facilities.
The office of financial management shall reestablish reimbursement rates each
even-numbered year.
(3)
A person who is sentenced for a felony to a term of not more than one year, and
who is committed or returned to incarceration in a state facility on another
felony conviction, either under the indeterminate sentencing laws, chapter 9.95
RCW, or under this chapter shall serve all terms of confinement, including a
sentence of not more than one year, in a facility or institution operated, or
utilized under contract, by the state, consistent with the provisions of RCW
9.94A.400.
(4)
((For)) Notwithstanding any other provision of this section, a
sentence((s)) imposed pursuant to ((RCW 9.94A.120(6))) section
19 of this act which ((have)) has a standard sentence
range of over one year, ((notwithstanding any other provision of this
section all such sentences)) regardless of length, shall be served
in a facility or institution operated, or utilized under contract, by the
state.
PART
II
Sentencing
Determinations
Sec.
5. RCW
9.94A.120 and 1999 c 324 s 2, 1999 c 197 s 4, 1999 c 196 s 5, and 1999 c 147 s
3 are each reenacted and amended to read as follows:
(1)
When a person is convicted of a felony, the court shall impose punishment as
provided in this ((section)) chapter.
(((1)
Except as authorized in subsections (2), (4), (5), (6), and (8) of this
section,)) (2)(a) The court shall impose a sentence ((within the
sentence range for the offense.
(2)
The court may impose a sentence outside the standard sentence range for that
offense if it finds, considering the purpose of this chapter, that there are
substantial and compelling reasons justifying an exceptional sentence.
(3)
Whenever a sentence outside the standard range is imposed, the court shall set
forth the reasons for its decision in written findings of fact and conclusions
of law. A sentence outside the standard range shall be a determinate sentence.
(4)
A persistent offender shall be sentenced to a term of total confinement for
life without the possibility of parole or, when authorized by RCW 10.95.030 for
the crime of aggravated murder in the first degree, sentenced to death,
notwithstanding the maximum sentence under any other law. An offender
convicted of the crime of murder in the first degree shall be sentenced to a
term of total confinement not less than twenty years. An offender convicted of
the crime of assault in the first degree or assault of a child in the first
degree where the offender used force or means likely to result in death or
intended to kill the victim shall be sentenced to a term of total confinement
not less than five years. An offender convicted of the crime of rape in the
first degree shall be sentenced to a term of total confinement not less than
five years. The foregoing minimum terms of total confinement are mandatory and
shall not be varied or modified as provided in subsection (2) of this section.
In addition, all offenders subject to the provisions of this subsection shall
not be eligible for community custody, earned release time, furlough, home
detention, partial confinement, work crew, work release, or any other form of
early release as defined under RCW 9.94A.150 (1), (2), (3), (5), (7), or (8),
or any other form of authorized leave of absence from the correctional facility
while not in the direct custody of a corrections officer or officers during
such minimum terms of total confinement except: (a) In the case of an offender
in need of emergency medical treatment; (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) for an extraordinary medical placement when
authorized under RCW 9.94A.150(4).
(5)(a)
In sentencing a first-time offender the court may waive the imposition of a sentence
within the sentence range and impose a sentence which may include up to ninety
days of confinement in a facility operated or utilized under contract by the
county and a requirement that the offender refrain from committing new
offenses. The sentence may also include a term of community supervision or
community custody as specified in (b) of this subsection, which, in addition to
crime-related prohibitions, may include requirements that the offender perform
any one or more of the following:
(i)
Devote time to a specific employment or occupation;
(ii)
Undergo available outpatient treatment for up to the period specified in (b) of
this subsection, or inpatient treatment not to exceed the standard range of
confinement for that offense;
(iii)
Pursue a prescribed, secular course of study or vocational training;
(iv)
Remain within prescribed geographical boundaries and notify the community
corrections officer prior to any change in the offender's address or
employment;
(v)
Report as directed to a community corrections officer; or
(vi)
Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030
and/or perform community service work.
(b)
The terms and statuses applicable to sentences under (a) of this subsection
are:
(i)
For sentences imposed on or after July 25, 1999, for crimes committed before
July 1, 2000, up to one year of community supervision. If treatment is
ordered, the period of community supervision may include up to the period of
treatment, but shall not exceed two years; and
(ii)
For crimes committed on or after July 1, 2000, up to one year of community
custody unless treatment is ordered, in which case the period of community
custody may include up to the period of treatment, but shall not exceed two
years. Any term of community custody imposed under this subsection (5) is
subject to conditions and sanctions as authorized in this subsection (5) and in
subsection (11)(b) and (c) of this section.
(c)
The department shall discharge from community supervision any offender
sentenced under this subsection (5) before July 25, 1999, who has served at
least one year of community supervision and has completed any treatment ordered
by the court.
(6)(a)
An offender is eligible for the special drug offender sentencing alternative
if:
(i)
The offender is convicted of a felony that is not a violent offense or sex
offense and the violation does not involve a sentence enhancement under RCW
9.94A.310 (3) or (4);
(ii)
The offender has no current or prior convictions for a sex offense or violent
offense in this state, another state, or the United States;
(iii)
For a violation of the uniform controlled substances act under chapter 69.50
RCW or a criminal solicitation to commit such a violation under chapter 9A.28
RCW, the offense involved only a small quantity of the particular controlled
substance as determined by the judge upon consideration of such factors as the
weight, purity, packaging, sale price, and street value of the controlled
substance; and
(iv)
The offender has not been found by the United States attorney general to be
subject to a deportation detainer or order.
(b)
If the standard range is greater than one year and the sentencing judge
determines that the offender is eligible for this option and that the offender
and the community will benefit from the use of the special drug offender
sentencing alternative, the judge may waive imposition of a sentence within the
standard range and impose a sentence that must include a period of total
confinement in a state facility for one-half of the midpoint of the standard
range. During incarceration in the state facility, offenders sentenced under
this subsection shall undergo a comprehensive substance abuse assessment and
receive, within available resources, treatment services appropriate for the
offender. The treatment services shall be designed by the division of alcohol
and substance abuse of the department of social and health services, in
cooperation with the department of corrections.
The
court shall also impose:
(i)
The remainder of the midpoint of the standard range as a term of community
custody which must include appropriate substance abuse treatment in a program
that has been approved by the division of alcohol and substance abuse of the
department of social and health services;
(ii)
Crime-related prohibitions including a condition not to use illegal controlled
substances; and
(iii)
A requirement to submit to urinalysis or other testing to monitor that status.
The
court may prohibit the offender from using alcohol or controlled substances and
may require that the monitoring for controlled substances be conducted by the
department or by a treatment alternatives to street crime program or a
comparable court or agency-referred program. The offender may be required to
pay thirty dollars per month while on community custody to offset the cost of
monitoring. In addition, the court shall impose three or more of the following
conditions:
(A)
Devote time to a specific employment or training;
(B)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer before any change in the offender's address or
employment;
(C)
Report as directed to a community corrections officer;
(D)
Pay all court-ordered legal financial obligations;
(E)
Perform community service work;
(F)
Stay out of areas designated by the sentencing judge;
(G)
Such other conditions as the court may require such as affirmative conditions.
(c)
If the offender violates any of the sentence conditions in (b) of this
subsection, a violation hearing shall be held by the department unless waived
by the offender. If the department finds that conditions have been willfully
violated, the offender may be reclassified to serve the remaining balance of
the original sentence.
(d)
The department shall determine the rules for calculating the value of a day
fine based on the offender's income and reasonable obligations which the
offender has for the support of the offender and any dependents. These rules
shall be developed in consultation with the administrator for the courts, the
office of financial management, and the commission.
(e)
An offender who fails to complete the special drug offender sentencing
alternative program or who is administratively terminated from the program
shall be reclassified to serve the unexpired term of his or her sentence as
ordered by the sentencing judge and shall be subject to all rules relating to
earned early release time. An offender who violates any conditions of
supervision as defined by the department shall be sanctioned. Sanctions may
include, but are not limited to, reclassifying the offender to serve the
unexpired term of his or her sentence as ordered by the sentencing judge. If
an offender is reclassified to serve the unexpired term of his or her sentence,
the offender shall be subject to all rules relating to earned early release
time.
(7))) as
provided in the following sections and as applicable in the case:
(i)
Unless another term of confinement applies, the court shall impose a sentence
within the standard sentence range established in RCW 9.94A.310;
(ii)
Sections 22 and 23 of this act, relating to community placement;
(iii)
Sections 24 and 25 of this act, relating to community custody;
(iv)
RCW 9.94A.383, relating to community custody for offenders whose term of
confinement is one year or less;
(v)
Section 6 of this act, relating to persistent offenders;
(vi)
Section 7 of this act, relating to mandatory minimum terms;
(vii)
Section 18 of this act, relating to the first-time offender waiver;
(viii)
Section 19 of this act, relating to the drug offender sentencing alternative;
(ix)
Section 20 of this act, relating to the special sex offender sentencing
alternative;
(x)
RCW 9.94A.390, relating to exceptional sentences;
(xi)
RCW 9.94A.400, relating to consecutive and concurrent sentences.
(b)
If a standard sentence range has not been established for the ((defendant's))
offender's crime, the court shall impose a determinate sentence which
may include not more than one year of confinement; community service work;
until July 1, 2000, a term of community supervision not to exceed one year and
on and after July 1, 2000, a term of community custody not to exceed one year,
subject to conditions and sanctions as authorized in ((subsection (11)(b)
and (c))) section 24 (2) and (3) of this ((section)) act;
and/or other legal financial obligations. The court may impose a sentence
which provides more than one year of confinement if the court finds((,
considering the purpose of this chapter, that there are substantial and
compelling)) reasons justifying an exceptional sentence as provided in
RCW 9.94A.390.
(((8)(a)(i)
When an offender is convicted of a sex offense other than a violation of RCW
9A.44.050 or a sex offense that is also a serious violent offense and has no
prior convictions for a sex offense or any other felony sex offenses in this or
any other state, the sentencing court, on its own motion or the motion of the
state or the defendant, may order an examination to determine whether the
defendant is amenable to treatment.
The
report of the examination shall include at a minimum the following: The
defendant's version of the facts and the official version of the facts, the
defendant's offense history, an assessment of problems in addition to alleged
deviant behaviors, the offender's social 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 defendant's amenability to
treatment and relative risk to the community. A proposed treatment plan shall
be provided and shall include, at a minimum:
(A)
Frequency and type of contact between offender and therapist;
(B)
Specific issues to be addressed in the treatment and description of planned
treatment modalities;
(C)
Monitoring plans, including any requirements regarding living conditions,
lifestyle requirements, and monitoring by family members and others;
(D)
Anticipated length of treatment; and
(E)
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.
(ii)
After receipt of the reports, the court shall consider whether the offender and
the community will benefit from use of this special sex offender sentencing
alternative and consider the victim's opinion whether the offender should
receive a treatment disposition under this subsection. If the court determines
that this special sex offender sentencing alternative is appropriate, the court
shall then impose a sentence within the sentence range. If this sentence is
less than eleven years of confinement, the court may suspend the execution of
the sentence and impose the following conditions of suspension:
(A)
The court shall place the defendant on community custody for the length of the
suspended sentence or three years, whichever is greater, and require the
offender to comply with any conditions imposed by the department of corrections
under subsection (15) of this section;
(B)
The court shall order treatment for any period up to three years in duration.
The court in its discretion shall order outpatient sex offender treatment or
inpatient sex offender treatment, if available. A community mental health
center may not be used for such treatment unless it has an appropriate program
designed for sex offender treatment. The offender shall not change sex offender
treatment providers or treatment conditions without first notifying the
prosecutor, the community corrections officer, and the court, and shall not
change providers without court approval after a hearing if the prosecutor or
community corrections officer object to the change. In addition, as conditions
of the suspended sentence, the court may impose other sentence conditions
including up to six months of confinement, not to exceed the sentence range of
confinement for that offense, crime-related prohibitions, and requirements that
the offender perform any one or more of the following:
(I)
Devote time to a specific employment or occupation;
(II)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer prior to any change in the offender's address or
employment;
(III)
Report as directed to the court and a community corrections officer;
(IV)
Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030,
perform community service work, or any combination thereof; or
(V)
Make recoupment to the victim for the cost of any counseling required as a
result of the offender's crime; and
(C)
Sex offenders sentenced under this special sex offender sentencing alternative
are not eligible to accrue any earned release time while serving a suspended
sentence.
(iii)
The sex offender therapist shall submit quarterly reports on the defendant's
progress in treatment to the court and the parties. The report shall reference
the treatment plan and include at a minimum the following: Dates of
attendance, defendant's compliance with requirements, treatment activities, the
defendant's relative progress in treatment, and any other material as specified
by the court at sentencing.
(iv)
At the time of sentencing, the court shall set a treatment termination hearing
for three months prior to the anticipated date for completion of treatment.
Prior to the treatment termination hearing, the treatment professional and
community corrections officer shall submit written reports to the court and
parties regarding the defendant's compliance with treatment and monitoring
requirements, and recommendations regarding termination from treatment,
including proposed community supervision conditions. Either party may request
and the court may order another evaluation regarding the advisability of
termination from treatment. The defendant shall pay the cost of any additional
evaluation ordered unless the court finds the defendant to be indigent in which
case the state shall pay the cost. At the treatment termination hearing the
court may: (A) Modify conditions of community custody, and either (B)
terminate treatment, or (C) extend treatment for up to the remaining period of
community custody.
(v)
If a violation of conditions occurs during community custody, the department
shall either impose sanctions as provided for in RCW 9.94A.205(2)(a) or refer
the violation to the court and recommend revocation of the suspended sentence
as provided for in (a)(vi) of this subsection.
(vi)
The court may revoke the suspended sentence at any time during the period of
community custody and order execution of the sentence if: (A) The defendant
violates the conditions of the suspended sentence, or (B) the court finds that
the defendant is failing to make satisfactory progress in treatment. All
confinement time served during the period of community custody shall be
credited to the offender if the suspended sentence is revoked.
(vii)
Except as provided in (a)(viii) of this subsection, 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.
(viii)
A sex offender therapist who examines or treats a sex offender pursuant to this
subsection (8) 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 (8) and the rules adopted by the department of health.
(ix)
For purposes of this subsection (8), "victim" means any person who
has sustained emotional, psychological, physical, or financial injury to person
or property as a result of the crime charged. "Victim" also means a
parent or guardian of a victim who is a minor child unless the parent or
guardian is the perpetrator of the offense.
(x)
If the defendant was less than eighteen years of age when the charge was filed,
the state shall pay for the cost of initial evaluation and treatment.
(b)
When an offender commits any felony sex offense on or after July 1, 1987, and
is sentenced to a term of confinement of more than one year but less than six
years, the sentencing court may, on its own motion or on the motion of the
offender or the state, request the department of corrections to evaluate
whether the offender is amenable to treatment and the department may place the
offender in a treatment program within a correctional facility operated by the
department.
Except
for an offender who has been convicted of a violation of RCW 9A.44.040 or
9A.44.050, if the offender completes the treatment program before the
expiration of his or her term of confinement, the department of corrections may
request the court to convert the balance of confinement to community
supervision and to place conditions on the offender including crime-related
prohibitions and requirements that the offender perform any one or more of the
following:
(i)
Devote time to a specific employment or occupation;
(ii)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer prior to any change in the offender's address or
employment;
(iii)
Report as directed to the court and a community corrections officer;
(iv)
Undergo available outpatient treatment.
If
the offender violates any of the terms of his or her community supervision, the
court may order the offender to serve out the balance of his or her community
supervision term in confinement in the custody of the department of
corrections.
Nothing
in this subsection (8)(b) shall confer eligibility for such programs for
offenders convicted and sentenced for a sex offense committed prior to July 1,
1987. This subsection (8)(b) does not apply to any crime committed after July
1, 1990.
(c)
Offenders convicted and sentenced for a sex offense committed prior to July 1,
1987, may, subject to available funds, request an evaluation by the department
of corrections to determine whether they are amenable to treatment. If the
offender is determined to be amenable to treatment, the offender may request
placement in a treatment program within a correctional facility operated by the
department. Placement in such treatment program is subject to available funds.
(d)
Within the funds available for this purpose, the department shall develop and
monitor transition and relapse prevention strategies, including risk assessment
and release plans, to reduce risk to the community after sex offenders' terms
of confinement in the custody of the department.
(9)(a)(i)
When a court sentences a person to a term of total confinement to the custody
of the department of corrections for an offense categorized as a sex offense or
a serious violent offense committed after July 1, 1988, but before July 1,
1990, assault in the second degree, assault of a child in the second degree,
any crime against a person where it is determined in accordance with RCW
9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at
the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW
not sentenced under subsection (6) of this section, committed on or after July
1, 1988, but before July 25, 1999, the court shall in addition to the other
terms of the sentence, sentence the offender to a one-year term of community
placement beginning either upon completion of the term of confinement or at
such time as the offender is transferred to community custody in lieu of earned
release in accordance with RCW 9.94A.150 (1) and (2). When the court sentences
an offender under this subsection to the statutory maximum period of
confinement then the community placement portion of the sentence shall consist
entirely of such community custody to which the offender may become eligible,
in accordance with RCW 9.94A.150 (1) and (2). Any period of community custody
actually served shall be credited against the community placement portion of
the sentence.
(ii)
Except for persons sentenced under (b) of this subsection or subsection (10)(a)
of this section, when a court sentences a person to a term of total confinement
to the custody of the department of corrections for a violent offense, any
crime against a person under RCW 9.94A.440(2), or any felony offense under
chapter 69.50 or 69.52 RCW not sentenced under subsection (6) of this section,
committed on or after July 25, 1999, but before July 1, 2000, the court shall
in addition to the other terms of the sentence, sentence the offender to a
one-year term of community placement beginning either upon completion of the
term of confinement or at such time as the offender is transferred to community
custody in lieu of earned release in accordance with RCW 9.94A.150 (1) and
(2). When the court sentences the offender under this subsection (9)(a)(ii) to
the statutory maximum period of confinement, then the community placement
portion of the sentence shall consist entirely of such community custody to
which the offender may become eligible, in accordance with RCW 9.94A.150 (1)
and (2). Any period of community custody actually served shall be credited
against the community placement portion of the sentence.
(b)
When a court sentences a person to a term of total confinement to the custody
of the department of corrections for an offense categorized as a sex offense
committed on or after July 1, 1990, but before June 6, 1996, or a serious
violent offense, vehicular homicide, or vehicular assault, committed on or
after July 1, 1990, but before July 1, 2000, the court shall in addition to
other terms of the sentence, sentence the offender to community placement for
two years or up to the period of earned release awarded pursuant to RCW 9.94A.150
(1) and (2), whichever is longer. The community placement shall begin either
upon completion of the term of confinement or at such time as the offender is
transferred to community custody in lieu of earned release in accordance with
RCW 9.94A.150 (1) and (2). When the court sentences an offender under this
subsection to the statutory maximum period of confinement then the community
placement portion of the sentence shall consist entirely of the community
custody to which the offender may become eligible, in accordance with RCW
9.94A.150 (1) and (2). Any period of community custody actually served shall
be credited against the community placement portion of the sentence. Unless a
condition is waived by the court, the terms of community placement for offenders
sentenced pursuant to this section shall include the following conditions:
(i)
The offender shall report to and be available for contact with the assigned
community corrections officer as directed;
(ii)
The offender shall work at department of corrections-approved education,
employment, and/or community service;
(iii)
The offender shall not possess or consume controlled substances except pursuant
to lawfully issued prescriptions;
(iv)
The offender shall pay supervision fees as determined by the department of
corrections;
(v)
The residence location and living arrangements are subject to the prior
approval of the department of corrections during the period of community
placement; and
(vi)
The offender shall submit to affirmative acts necessary to monitor compliance
with the orders of the court as required by the department.
(c)
As a part of any sentence imposed under (a) or (b) of this subsection, the
court may also order any of the following special conditions:
(i)
The offender shall remain within, or outside of, a specified geographical
boundary;
(ii)
The offender shall not have direct or indirect contact with the victim of the
crime or a specified class of individuals;
(iii)
The offender shall participate in crime-related treatment or counseling
services;
(iv)
The offender shall not consume alcohol;
(v)
The offender shall comply with any crime-related prohibitions; or
(vi)
For an offender convicted of a felony sex offense against a minor victim after
June 6, 1996, the offender shall comply with any terms and conditions of
community placement imposed by the department of corrections relating to
contact between the sex offender and a minor victim or a child of similar age
or circumstance as a previous victim.
(d)
Prior to transfer to, or during, community placement, any conditions of
community placement may be removed or modified so as not to be more restrictive
by the sentencing court, upon recommendation of the department of corrections.
(10)(a)
When a court sentences a person to the custody of the department of corrections
for an offense categorized as a sex offense committed on or after June 6, 1996,
but before July 1, 2000, the court shall, in addition to other terms of the
sentence, sentence the offender to community custody for three years or up to
the period of earned release awarded pursuant to RCW 9.94A.150 (1) and (2),
whichever is longer. The community custody shall begin either upon completion
of the term of confinement or at such time as the offender is transferred to
community custody in lieu of earned release in accordance with RCW 9.94A.150
(1) and (2).
(b)
Unless a condition is waived by the court, the terms of community custody shall
be the same as those provided for in subsection (9)(b) of this section and may
include those provided for in subsection (9)(c) of this section. As part of
any sentence that includes a term of community custody imposed under this
subsection, the court shall also require the offender to comply with any
conditions imposed by the department of corrections under subsection (15) of
this section.
(c)
At any time prior to the completion of a sex offender's term of community
custody, if the court finds that public safety would be enhanced, the court may
impose and enforce an order extending any or all of the conditions imposed
pursuant to this section for a period up to the maximum allowable sentence for
the crime as it is classified in chapter 9A.20 RCW, regardless of the
expiration of the offender's term of community custody. If a violation of a
condition extended under this subsection occurs after the expiration of the
offender's term of community custody, it shall be deemed a violation of the
sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of
court as provided for in RCW 7.21.040.
(11)(a)
When a court sentences a person to the custody of the department of corrections
for a sex offense, a violent offense, any crime against a person under RCW
9.94A.440(2), or a felony offense under chapter 69.50 or 69.52 RCW not
sentenced under subsection (6) of this section, committed on or after July 1,
2000, the court shall in addition to the other terms of the sentence, sentence
the offender to community custody for the community custody range or up to the
period of earned release awarded pursuant to RCW 9.94A.150 (1) and (2),
whichever is longer. The community custody shall begin either upon completion
of the term of confinement or at such time as the offender is transferred to
community custody in lieu of earned release in accordance with RCW 9.94A.150
(1) and (2).
(b)
Unless a condition is waived by the court, the conditions of community custody
shall include those provided for in subsection (9)(b)(i) through (vi) of this
section. The conditions may also include those provided for in subsection
(9)(c)(i) through (vi) of this section. The court may also order the offender
to participate in rehabilitative programs or otherwise perform affirmative
conduct reasonably related to the circumstances of the offense, the offender's
risk of reoffending, or the safety of the community, and the department shall
enforce such conditions pursuant to (f) of this subsection. As part of any
sentence that includes a term of community custody imposed under this
subsection, the court shall also require the offender to comply with any
conditions imposed by the department of corrections under subsection (15) of
this section. The department shall assess the offender's risk of reoffense and
may establish and modify additional conditions of the offender's community
custody based upon the risk to community safety. The department may not impose
conditions that are contrary to those ordered by the court and may not
contravene or decrease court imposed conditions. The department shall notify
the offender in writing of any such conditions or modifications. In setting,
modifying, and enforcing conditions of community custody, the department shall
be deemed to be performing a quasi-judicial function.
(c)
If an offender violates conditions imposed by the court or the department
pursuant to this subsection during community custody, the department may
transfer the offender to a more restrictive confinement status and impose other
available sanctions as provided in RCW 9.94A.205 and 9.94A.207.
(d)
Except for terms of community custody under subsection (8) of this section, the
department shall discharge the offender from community custody on a date
determined by the department, which the department may modify, based on risk
and performance of the offender, within the range or at the end of the period
of earned release, whichever is later.
(e)
At any time prior to the completion or termination of a sex offender's term of
community custody, if the court finds that public safety would be enhanced, the
court may impose and enforce an order extending any or all of the conditions
imposed pursuant to this section for a period up to the maximum allowable
sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the
expiration of the offender's term of community custody. If a violation of a
condition extended under this subsection occurs after the expiration of the
offender's term of community custody, it shall be deemed a violation of the
sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of
court as provided for in RCW 7.21.040. If the court extends a condition beyond
the expiration of the term of community custody, the department is not
responsible for supervision of the offender's compliance with the condition.
(f)
Within the funds available for community custody, the department shall
determine conditions and duration of community custody on the basis of risk to
community safety, and shall supervise offenders during community custody on the
basis of risk to community safety and conditions imposed by the court. The
secretary shall adopt rules to implement the provisions of this subsection
(11)(f).
(g)
By the close of the next business day after receiving notice of a condition
imposed or modified by the department, an offender may request an
administrative review under rules adopted by the department. The condition
shall remain in effect unless the reviewing officer finds that it is not
reasonably related to any of the following: (i) The crime of conviction; (ii)
the offender's risk of reoffending; or (iii) the safety of the community.
(12))) (3)
If the court imposes a sentence requiring confinement of thirty days or less,
the court may, in its discretion, specify that the sentence be served on
consecutive or intermittent days. A sentence requiring more than thirty days
of confinement shall be served on consecutive days. Local jail administrators
may schedule court-ordered intermittent sentences as space permits.
(((13)))
(4) If a sentence imposed includes payment of a legal financial
obligation, ((the sentence shall specify the total amount of the legal
financial obligation owed, and shall require the offender to pay a specified
monthly sum toward that legal financial obligation. Restitution to victims
shall be paid prior to any other payments of monetary obligations. Any legal
financial obligation that is imposed by the court may be collected by the
department, which shall deliver the amount paid to the county clerk for credit.
The offender's compliance with payment of legal financial obligations shall be
supervised by the department for ten years following the entry of the judgment
and sentence or ten years following the offender's release from total
confinement. All monetary payments ordered shall be paid no later than ten
years after the last date of release from confinement pursuant to a felony
conviction or the date the sentence was entered unless the superior court
extends the criminal judgment an additional ten years. If the legal financial
obligations including crime victims' assessments are not paid during the
initial ten-year period, the superior court may extend jurisdiction under the
criminal judgment an additional ten years)) it shall be imposed as
provided in RCW 9.94A.140, 9.94A.142, and 9.94A.145. ((If jurisdiction
under the criminal judgment is extended, the department is not responsible for
supervision of the offender during the subsequent period. Independent of the
department, the party or entity to whom the legal financial obligation is owed
shall have the authority to utilize any other remedies available to the party
or entity to collect the legal financial obligation. Nothing in this section
makes the department, the state, or any of its employees, agents, or other
persons acting on their behalf liable under any circumstances for the payment
of these legal financial obligations. If an order includes restitution as one
of the monetary assessments, the county clerk shall make disbursements to
victims named in the order.
(14))) (5)
Except as provided under RCW 9.94A.140(((1))) (4) and 9.94A.142(((1)))
(4), a court may not impose a sentence providing for a term of
confinement or community supervision, community placement, or community custody
which exceeds the statutory maximum for the crime as provided in chapter 9A.20
RCW.
(((15)
All offenders sentenced to terms involving community supervision, community
service, community placement, community custody, or legal financial obligation
shall be under the supervision of the department of corrections and shall
follow explicitly the instructions and conditions of the department of
corrections. The department may require an offender to perform affirmative
acts it deems appropriate to monitor compliance with the conditions of the
sentence imposed.
(a)
The instructions shall include, at a minimum, reporting as directed to a
community corrections officer, remaining within prescribed geographical
boundaries, notifying the community corrections officer of any change in the
offender's address or employment, and paying the supervision fee assessment.
(b)
For offenders sentenced to terms involving community custody for crimes
committed on or after June 6, 1996, the department may include, in addition to
the instructions in (a) of this subsection, any appropriate conditions of
supervision, including but not limited to, prohibiting the offender from having
contact with any other specified individuals or specific class of individuals.
For offenders sentenced to terms of community custody for crimes committed on
or after July 1, 2000, the department may additionally require the offender to
participate in rehabilitative programs or otherwise perform affirmative
conduct, and to obey all laws.
The
conditions authorized under this subsection (15)(b) may be imposed by the
department prior to or during an offender's community custody term. If a
violation of conditions imposed by the court or the department pursuant to
subsection (10) of this section occurs during community custody, it shall be
deemed a violation of community placement for the purposes of RCW 9.94A.207 and
shall authorize the department to transfer an offender to a more restrictive
confinement status as provided in RCW 9.94A.205. At any time prior to the
completion of an offender's term of community custody, the department may
recommend to the court that any or all of the conditions imposed by the court
or the department pursuant to subsection (10) or (11) of this section be
continued beyond the expiration of the offender's term of community custody as
authorized in subsection (10)(c) or (11)(e) of this section.
The
department may require offenders to pay for special services rendered on or
after July 25, 1993, including electronic monitoring, day reporting, and telephone
reporting, dependent upon the offender's ability to pay. The department may
pay for these services for offenders who are not able to pay.
(16)
All offenders sentenced to terms involving community supervision, community
service, community custody, or community placement under the supervision of the
department of corrections shall not own, use, or possess firearms or
ammunition. Offenders who own, use, or are found to be in actual or
constructive possession of firearms or ammunition shall be subject to the
appropriate violation process and sanctions. "Constructive
possession" as used in this subsection means the power and intent to
control the firearm or ammunition. "Firearm" as used in this
subsection means a weapon or device from which a projectile may be fired by an
explosive such as gunpowder.
(17))) (6)
The sentencing court shall give the offender credit for all confinement time
served before the sentencing if that confinement was solely in regard to the
offense for which the offender is being sentenced.
(((18)
A departure from the standards in RCW 9.94A.400 (1) and (2) governing whether
sentences are to be served consecutively or concurrently is an exceptional
sentence subject to the limitations in subsections (2) and (3) of this section,
and may be appealed by the defendant or the state as set forth in RCW 9.94A.210
(2) through (6).
(19))) (7)
The court shall order restitution ((whenever the offender is convicted of a
felony that results in injury to any person or damage to or loss of property,
whether the offender is sentenced to confinement or placed under community
supervision, unless extraordinary circumstances exist that make restitution
inappropriate in the court's judgment. The court shall set forth the
extraordinary circumstances in the record if it does not order restitution))
as provided in RCW 9.94A.140 and 9.94A.142.
(((20)))
(8) As a part of any sentence, the court may impose and enforce ((an
order that relates directly to the circumstances of the crime for which the
offender has been convicted, prohibiting the offender from having any contact
with other specified individuals or a specific class of individuals for a
period not to exceed the maximum allowable sentence for the crime, regardless
of the expiration of the offender's term of community supervision or community
placement)) crime-related prohibitions and affirmative conditions as
provided in this chapter.
(((21)))
(9) The court may order an offender whose sentence includes community
placement or community supervision to undergo a mental status evaluation and to
participate in available outpatient mental health treatment, if the court finds
that reasonable grounds exist to believe that the offender is a mentally ill
person as defined in RCW 71.24.025, and that this condition is likely to have
influenced the offense. An order requiring mental status evaluation or
treatment must be based on a presentence report and, if applicable, mental
status evaluations that have been filed with the court to determine the
offender's competency or eligibility for a defense of insanity. The court may
order additional evaluations at a later date if deemed appropriate.
(((22)))
(10) In any sentence of partial confinement, the court may require the
((defendant)) offender to serve the partial confinement in work
release, in a program of home detention, on work crew, or in a combined program
of work crew and home detention.
(((23)
All court-ordered legal financial obligations collected by the department and
remitted to the county clerk shall be credited and paid where restitution is
ordered. Restitution shall be paid prior to any other payments of monetary
obligations.
(24))) (11)
In sentencing an offender convicted of a crime of domestic violence, as defined
in RCW 10.99.020, if the offender has a minor child, or if the victim of the
offense for which the offender was convicted has a minor child, the court may,
as part of any term of community supervision, community placement, or
community custody, order the offender to participate in a domestic violence
perpetrator program approved under RCW 26.50.150.
(((25)(a)
Sex offender examinations and treatment ordered as a special condition of
community placement or community custody under this section shall be conducted
only by sex offender treatment providers certified by the department of health
under chapter 18.155 RCW unless the court finds that: (i) The offender has
already moved to another state or plans to move to another state for reasons
other than circumventing the certification requirements; (ii) no certified
providers are available for treatment within a reasonable geographic distance
of the offender's home, as determined in rules adopted by the secretary; (iii)
the evaluation and treatment plan comply with the rules adopted by the department
of health; or (iv) the treatment provider is employed by the department. A
treatment provider selected by an offender who is not certified by the
department of health shall consult with a certified provider during the
offender's period of treatment to ensure compliance with the rules adopted by
the department of health. The frequency and content of the consultation shall
be based on the recommendation of the certified provider.
(b)
A sex offender's failure to participate in treatment required as a condition of
community placement or community custody is a violation that will not be
excused on the basis that no treatment provider was located within a reasonable
geographic distance of the offender's home.))
NEW
SECTION. Sec. 6.
PERSISTENT OFFENDERS. Notwithstanding the statutory maximum sentence or any
other provision of this chapter, 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.150 (1), (2), (3), (4), (6), (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) In the
case of an offender in need of emergency medical treatment; or (2) 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.
NEW
SECTION. Sec. 7.
MANDATORY MINIMUM TERMS. (1) The following minimum terms of total confinement
are mandatory and shall not be varied or modified under RCW 9.94A.390:
(a)
An offender convicted of the crime of murder in the first degree shall be
sentenced to a term of total confinement not less than twenty years.
(b)
An offender convicted of the crime of assault in the first degree or assault of
a child in the first degree where the offender used force or means likely to
result in death or intended to kill the victim shall be sentenced to a term of
total confinement not less than five years.
(c)
An offender convicted of the crime of rape in the first degree shall be
sentenced to a term of total confinement not less than five years.
(2)
During such minimum terms of total confinement, no offender subject to the
provisions of this section is eligible for community custody, earned release
time, furlough, home detention, partial confinement, work crew, work release,
or any other form of early release authorized under RCW 9.94A.150, or any other
form of authorized leave of absence from the correctional facility while not in
the direct custody of a corrections officer. The provisions of this subsection
shall not apply: (a) In the case of an offender in need of emergency medical
treatment; (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) for an extraordinary medical placement when authorized under RCW
9.94A.150(4).
Sec.
8. RCW
9.94A.390 and 1999 c 330 s 1 are each amended to read as follows:
The
court may impose a sentence outside the standard sentence range for an offense
if it finds, considering the purpose of this chapter, that there are
substantial and compelling reasons justifying an exceptional sentence.
Whenever a sentence outside the standard sentence range is imposed, the court
shall set forth the reasons for its decision in written findings of fact and
conclusions of law. A sentence outside the standard sentence range shall be a
determinate sentence.
If
the sentencing court finds that an exceptional sentence outside the standard sentence
range should be imposed ((in accordance with RCW 9.94A.120(2))), the
sentence is subject to review only as provided for in RCW 9.94A.210(4).
A
departure from the standards in RCW 9.94A.400 (1) and (2) governing whether
sentences are to be served consecutively or concurrently is an exceptional
sentence subject to the limitations in this section, and may be appealed by the
offender or the state as set forth in RCW 9.94A.210 (2) through (6).
The
following are illustrative factors which the court may consider in the exercise
of its discretion to impose an exceptional sentence. The following are
illustrative only and are not intended to be exclusive reasons for exceptional
sentences.
(1)
Mitigating Circumstances
(a)
To a significant degree, the victim was an initiator, willing participant,
aggressor, or provoker of the incident.
(b)
Before detection, the defendant compensated, or made a good faith effort to
compensate, the victim of the criminal conduct for any damage or injury
sustained.
(c)
The defendant committed the crime under duress, coercion, threat, or compulsion
insufficient to constitute a complete defense but which significantly affected
his or her conduct.
(d)
The defendant, with no apparent predisposition to do so, was induced by others
to participate in the crime.
(e)
The defendant's capacity to appreciate the wrongfulness of his or her conduct,
or to conform his or her conduct to the requirements of the law, was
significantly impaired ((()). Voluntary use of drugs or alcohol
is excluded(())).
(f)
The offense was principally accomplished by another person and the defendant
manifested extreme caution or sincere concern for the safety or well-being of
the victim.
(g)
The operation of the multiple offense policy of RCW 9.94A.400 results in a
presumptive sentence that is clearly excessive in light of the purpose of this
chapter, as expressed in RCW 9.94A.010.
(h)
The defendant or the defendant's children suffered a continuing pattern of
physical or sexual abuse by the victim of the offense and the offense is a
response to that abuse.
(2)
Aggravating Circumstances
(a)
The defendant's conduct during the commission of the current offense manifested
deliberate cruelty to the victim.
(b)
The defendant knew or should have known that the victim of the current offense
was particularly vulnerable or incapable of resistance due to extreme youth,
advanced age, disability, or ill health.
(c)
The current offense was a violent offense, and the defendant knew that the
victim of the current offense was pregnant.
(d)
The current offense was a major economic offense or series of offenses, so
identified by a consideration of any of the following factors:
(i)
The current offense involved multiple victims or multiple incidents per victim;
(ii)
The current offense involved attempted or actual monetary loss substantially greater
than typical for the offense;
(iii)
The current offense involved a high degree of sophistication or planning or
occurred over a lengthy period of time; or
(iv)
The defendant used his or her position of trust, confidence, or fiduciary
responsibility to facilitate the commission of the current offense.
(e)
The current offense was a major violation of the Uniform Controlled Substances
Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled
substances, which was more onerous than the typical offense of its statutory
definition: The presence of ANY of the following may identify a current
offense as a major VUCSA:
(i)
The current offense involved at least three separate transactions in which
controlled substances were sold, transferred, or possessed with intent to do
so;
(ii)
The current offense involved an attempted or actual sale or transfer of
controlled substances in quantities substantially larger than for personal use;
(iii)
The current offense involved the manufacture of controlled substances for use
by other parties;
(iv)
The circumstances of the current offense reveal the offender to have occupied a
high position in the drug distribution hierarchy;
(v)
The current offense involved a high degree of sophistication or planning ((or)),
occurred over a lengthy period of time, or involved a broad geographic
area of disbursement; or
(vi)
The offender used his or her position or status to facilitate the commission of
the current offense, including positions of trust, confidence or fiduciary
responsibility (e.g., pharmacist, physician, or other medical professional).
(f)
The current offense included a finding of sexual motivation pursuant to RCW
9.94A.127.
(g)
The offense was part of an ongoing pattern of sexual abuse of the same victim
under the age of eighteen years manifested by multiple incidents over a
prolonged period of time.
(h)
The current offense involved domestic violence, as defined in RCW 10.99.020,
and one or more of the following was present:
(i)
The offense was part of an ongoing pattern of psychological, physical, or
sexual abuse of the victim manifested by multiple incidents over a prolonged
period of time;
(ii)
The offense occurred within sight or sound of the victim's or the offender's
minor children under the age of eighteen years; or
(iii)
The offender's conduct during the commission of the current offense manifested
deliberate cruelty or intimidation of the victim.
(i)
The operation of the multiple offense policy of RCW 9.94A.400 results in a
presumptive sentence that is clearly too lenient in light of the purpose of
this chapter, as expressed in RCW 9.94A.010.
(j)
The defendant's prior unscored misdemeanor or prior unscored foreign criminal
history results in a presumptive sentence that is clearly too lenient in light
of the purpose of this chapter, as expressed in RCW 9.94A.010.
(k)
The offense resulted in the pregnancy of a child victim of rape.
(l)
The defendant knew that the victim of the current offense was a youth who was
not residing with a legal custodian and the defendant established or promoted
the relationship for the primary purpose of victimization.
Sec.
9. RCW
9.94A.130 and 1999 c 143 s 12 are each amended to read as follows:
The
power to defer or suspend the imposition or execution of sentence is hereby
abolished in respect to sentences prescribed for felonies committed after June
30, 1984, except for offenders sentenced under ((RCW 9.94A.120(8)(a))) section
20 of this act, the special ((sexual)) sex offender
sentencing alternative, whose sentence may be suspended.
Sec.
10. RCW
9.94A.210 and 1989 c 214 s 1 are each amended to read as follows:
(1)
A sentence within the standard sentence range for the offense shall not
be appealed. For purposes of this section, a sentence imposed on a first-time
offender under ((RCW 9.94A.120(5))) section 18 of this act shall
also be deemed to be within the standard sentence range for the offense
and shall not be appealed.
(2)
A sentence outside the standard sentence range for the offense is
subject to appeal by the defendant or the state. The appeal shall be to the
court of appeals in accordance with rules adopted by the supreme court.
(3)
Pending review of the sentence, the sentencing court or the court of appeals
may order the defendant confined or placed on conditional release, including
bond.
(4)
To reverse a sentence which is outside the standard sentence range, the
reviewing court must find: (a) Either that the reasons supplied by the
sentencing ((judge)) court are not supported by the record which
was before the judge or that those reasons do not justify a sentence outside
the standard sentence range for that offense; or (b) that the sentence
imposed was clearly excessive or clearly too lenient.
(5)
A review under this section shall be made solely upon the record that was
before the sentencing court. Written briefs shall not be required and the
review and decision shall be made in an expedited manner according to rules
adopted by the supreme court.
(6)
The court of appeals shall issue a written opinion in support of its decision
whenever the judgment of the sentencing court is reversed and may issue written
opinions in any other case where the court believes that a written opinion
would provide guidance to sentencing ((judges)) courts and others
in implementing this chapter and in developing a common law of sentencing
within the state.
(7) The department may petition for a review of a sentence
committing an offender to the custody or jurisdiction of the department. The
review shall be limited to errors of law. Such petition shall be filed with
the court of appeals no later than ninety days after the department has actual
knowledge of terms of the sentence. The petition shall include a certification
by the department that all reasonable efforts to resolve the dispute at the
superior court level have been exhausted.
Sec.
11. RCW
9.94A.310 and 1999 c 352 s 2 and 1999 c 324 s 3 are each reenacted and amended
to read as follows:
(1) TABLE 1
Sentencing Grid
SERIOUSNESS
LEVEL OFFENDER SCORE
9 or
0 1 2 3 4 5 6 7 8 more
XVI Life
Sentence without Parole/Death Penalty
XV 23y4m 24y4m 25y4m 26y4m 27y4m 28y4m 30y4m 32y10m
36y 40y
240- 250- 261- 271- 281- 291- 312- 338- 370- 411-
320
333 347 361 374 388 416 450 493 548
XIV 14y4m 15y4m 16y2m 17y 17y11m 18y9m 20y5m 22y2m 25y7m
29y
123- 134- 144- 154- 165- 175- 195- 216- 257- 298-
220 234 244 254 265 275 295 316 357 397
XIII 12y 13y 14y 15y 16y 17y 19y 21y 25y 29y
123- 134- 144- 154- 165- 175- 195- 216- 257- 298-
164 178 192 205 219 233 260 288 342 397
XII 9y 9y11m 10y9m 11y8m 12y6m 13y5m 15y9m 17y3m 20y3m 23y3m
93- 102- 111- 120- 129- 138- 162- 178- 209- 240-
123 136
147 160 171 184 216 236 277 318
XI 7y6m 8y4m 9y2m 9y11m 10y9m 11y7m 14y2m 15y5m 17y11m 20y5m
78- 86- 95- 102- 111- 120- 146- 159- 185- 210-
102
114 125 136 147 158 194 211 245 280
X 5y 5y6m 6y 6y6m 7y 7y6m 9y6m 10y6m 12y6m 14y6m
51- 57- 62- 67- 72- 77- 98- 108- 129- 149-
68 75 82 89 96 102 130 144 171 198
IX 3y 3y6m 4y 4y6m 5y 5y6m 7y6m 8y6m 10y6m 12y6m
31- 36- 41- 46- 51- 57- 77- 87- 108- 129-
41 48 54 61 68 75 102 116 144 171
VIII 2y 2y6m 3y 3y6m 4y 4y6m 6y6m 7y6m 8y6m 10y6m
21- 26- 31- 36- 41- 46- 67- 77- 87- 108-
27 34 41 48 54 61 89 102 116 144
VII 18m 2y 2y6m 3y 3y6m 4y 5y6m 6y6m 7y6m 8y6m
15- 21- 26- 31- 36- 41- 57- 67- 77- 87-
20 27 34 41 48 54 75 89 102 116
VI 13m 18m 2y 2y6m 3y 3y6m 4y6m 5y6m 6y6m 7y6m
12+- 15- 21- 26- 31- 36- 46- 57- 67- 77-
14
20 27 34 41 48 61 75 89 102
V 9m 13m 15m 18m 2y2m 3y2m 4y 5y 6y 7y
6- 12+- 13- 15- 22- 33- 41- 51- 62- 72-
12 14 17 20 29 43 54 68 82 96
IV 6m 9m 13m 15m 18m 2y2m 3y2m 4y2m 5y2m 6y2m
3- 6- 12+- 13- 15- 22- 33- 43- 53- 63-
9 12 14 17 20 29 43 57 70 84
III 2m 5m 8m 11m 14m 20m 2y2m 3y2m 4y2m 5y
1- 3- 4- 9- 12+- 17- 22- 33- 43- 51-
3
8 12 12 16 22 29 43 57 68
II 4m 6m 8m 13m 16m 20m 2y2m 3y2m 4y2m
0-90 2- 3- 4- 12+- 14- 17- 22- 33- 43-
Days 6
9 12 14 18 22 29 43 57
I 3m 4m 5m 8m 13m 16m 20m 2y2m
0-60 0-90 2- 2- 3- 4- 12+- 14- 17- 22-
Days Days 5 6 8 12 14 18 22 29
((NOTE:))
Numbers in the first horizontal row of each seriousness category represent
sentencing midpoints in years(y) and months(m). Numbers in the second and
third rows represent ((presumptive sentencing)) standard sentence
ranges in months, or in days if so designated. 12+ equals one year and one
day.
(2)
For persons convicted of the anticipatory offenses of criminal attempt,
solicitation, or conspiracy under chapter 9A.28 RCW, the ((presumptive))
standard sentence range is determined by locating the sentencing
grid sentence range defined by the appropriate offender score and the
seriousness level of the completed crime, and multiplying the range by 75
percent.
(3)
The following additional times shall be added to the ((presumptive)) standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a firearm as defined in RCW 9.41.010
and the offender is being sentenced for one of the crimes listed in this
subsection as eligible for any firearm enhancements based on the classification
of the completed felony crime. If the offender is being sentenced for more
than one offense, the firearm enhancement or enhancements must be added to the
total period of confinement for all offenses, regardless of which underlying
offense is subject to a firearm enhancement. If the offender or an accomplice
was armed with a firearm as defined in RCW 9.41.010 and the offender is being
sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of
the crimes listed in this subsection as eligible for any firearm enhancements,
the following additional times shall be added to the ((presumptive)) standard
sentence range determined under subsection (2) of this section based on
the felony crime of conviction as classified under RCW 9A.28.020:
(a)
Five years for any felony defined under any law as a class A felony or with a statutory
maximum sentence of at least twenty years, or both, and not covered under (f)
of this subsection.
(b)
Three years for any felony defined under any law as a class B felony or with a statutory
maximum sentence of ten years, or both, and not covered under (f) of this
subsection.
(c)
Eighteen months for any felony defined under any law as a class C felony or
with a statutory maximum sentence of five years, or both, and not
covered under (f) of this subsection.
(d)
If the offender is being sentenced for any firearm enhancements under (a), (b),
and/or (c) of this subsection and the offender has previously been sentenced
for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or
(c) of this subsection or subsection (4)(a), (b), and/or (c) of this section,
or both, ((any and)) all firearm enhancements under this subsection
shall be twice the amount of the enhancement listed.
(e)
Notwithstanding any other provision of law, ((any and)) all firearm
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing provisions,
including other firearm or deadly weapon enhancements, for all offenses
sentenced under this chapter. However, whether or not a mandatory minimum term
has expired, an offender serving a sentence under this subsection may be
granted an extraordinary medical placement when authorized under RCW
9.94A.150(4).
(f)
The firearm enhancements in this section shall apply to all felony crimes
except the following: Possession of a machine gun, possessing a stolen
firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm
in the first and second degree, and use of a machine gun in a felony.
(g)
If the ((presumptive)) standard sentence range under this
section exceeds the statutory maximum sentence for the offense, the
statutory maximum sentence shall be the presumptive sentence unless the
offender is a persistent offender ((as defined in RCW 9.94A.030)). If
the addition of a firearm enhancement increases the sentence so that it would
exceed the statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced.
(4)
The following additional times shall be added to the ((presumptive)) standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a deadly weapon ((as defined in
this chapter)) other than a firearm as defined in RCW 9.41.010 and the
offender is being sentenced for one of the crimes listed in this subsection as
eligible for any deadly weapon enhancements based on the classification of the
completed felony crime. If the offender is being sentenced for more than one
offense, the deadly weapon enhancement or enhancements must be added to the
total period of confinement for all offenses, regardless of which underlying
offense is subject to a deadly weapon enhancement. If the offender or an
accomplice was armed with a deadly weapon other than a firearm as defined in
RCW 9.41.010 and the offender is being sentenced for an anticipatory offense
under chapter 9A.28 RCW to commit one of the crimes listed in this subsection
as eligible for any deadly weapon enhancements, the following additional times
shall be added to the ((presumptive)) standard sentence range
determined under subsection (2) of this section based on the felony crime of
conviction as classified under RCW 9A.28.020:
(a)
Two years for any felony defined under any law as a class A felony or with a statutory
maximum sentence of at least twenty years, or both, and not covered under (f)
of this subsection.
(b)
One year for any felony defined under any law as a class B felony or with a statutory
maximum sentence of ten years, or both, and not covered under (f) of this
subsection.
(c)
Six months for any felony defined under any law as a class C felony or with a statutory
maximum sentence of five years, or both, and not covered under (f) of this
subsection.
(d)
If the offender is being sentenced under (a), (b), and/or (c) of this
subsection for any deadly weapon enhancements and the offender has previously
been sentenced for any deadly weapon enhancements after July 23, 1995, under
(a), (b), and/or (c) of this subsection or subsection (3)(a), (b), and/or (c)
of this section, or both, ((any and)) all deadly weapon enhancements
under this subsection shall be twice the amount of the enhancement listed.
(e)
Notwithstanding any other provision of law, ((any and)) all deadly
weapon enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing provisions,
including other firearm or deadly weapon enhancements, for all offenses
sentenced under this chapter. However, whether or not a mandatory minimum term
has expired, an offender serving a sentence under this subsection may be
granted an extraordinary medical placement when authorized under RCW
9.94A.150(4).
(f)
The deadly weapon enhancements in this section shall apply to all felony crimes
except the following: Possession of a machine gun, possessing a stolen
firearm, drive-by shooting, theft of a firearm, unlawful possession of a
firearm in the first and second degree, and use of a machine gun in a felony.
(g)
If the ((presumptive)) standard sentence range under this
section exceeds the statutory maximum sentence for the offense, the
statutory maximum sentence shall be the presumptive sentence unless the
offender is a persistent offender ((as defined in RCW 9.94A.030)). If
the addition of a deadly weapon enhancement increases the sentence so that it
would exceed the statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced.
(5)
The following additional times shall be added to the ((presumptive)) standard
sentence range if the offender or an accomplice committed the offense
while in a county jail or state correctional facility ((as that term is
defined in this chapter)) and the offender is being sentenced for one of
the crimes listed in this subsection. If the offender or an accomplice
committed one of the crimes listed in this subsection while in a county jail or
state correctional facility ((as that term is defined in this chapter)),
and the offender is being sentenced for an anticipatory offense under chapter
9A.28 RCW to commit one of the crimes listed in this subsection, the following
additional times shall be added to the ((presumptive)) standard
sentence range determined under subsection (2) of this section:
(a)
Eighteen months for offenses committed under RCW 69.50.401(a)(1) (i) or (ii) or
69.50.410;
(b)
Fifteen months for offenses committed under RCW 69.50.401(a)(1) (iii), (iv),
and (v);
(c)
Twelve months for offenses committed under RCW 69.50.401(d).
For
the purposes of this subsection, all of the real property of a state
correctional facility or county jail shall be deemed to be part of that
facility or county jail.
(6)
An additional twenty-four months shall be added to the ((presumptive)) standard
sentence range for any ranked offense involving a violation of chapter
69.50 RCW if the offense was also a violation of RCW 69.50.435.
(7)
An additional two years shall be added to the ((presumptive)) standard
sentence range for vehicular homicide committed while under the
influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for
each prior offense as defined in RCW 46.61.5055.
Sec.
12. RCW
9.94A.370 and 1999 c 143 s 16 are each amended to read as follows:
(1)
The intersection of the column defined by the offender score and the row
defined by the offense seriousness score determines the ((presumptive
sentencing)) standard sentence range (see RCW 9.94A.310, (Table
1)). The additional time for deadly weapon findings or for those offenses
enumerated in RCW 9.94A.310(4) that were committed in a state correctional
facility or county jail shall be added to the entire ((presumptive)) standard
sentence range. The court may impose any sentence within the range that it
deems appropriate. All ((presumptive)) standard sentence ranges
are expressed in terms of total confinement.
(2)
In determining any sentence, the trial court may rely on no more information
than is admitted by the plea agreement, or admitted, acknowledged, or proved in
a trial or at the time of sentencing. Acknowledgement includes not objecting
to information stated in the presentence reports. Where the defendant disputes
material facts, the court must either not consider the fact or grant an
evidentiary hearing on the point. The facts shall be deemed proved at the
hearing by a preponderance of the evidence. Facts that establish the elements
of a more serious crime or additional crimes may not be used to go outside the
((presumptive)) standard sentence range except upon stipulation
or when specifically provided for in RCW 9.94A.390(2) (d), (e), (g), and (h).
Sec.
13. RCW
9.94A.383 and 1999 c 196 s 10 are each amended to read as follows:
On
all sentences of confinement for one year or less, the court may impose up to
one year of community custody, subject to conditions and sanctions as
authorized in ((RCW 9.94A.120(11) (b) and (c))) sections 25 and 26 of
this act. An offender shall be on community custody as of the date of
sentencing. However, during the time for which the offender is in total or
partial confinement pursuant to the sentence or a violation of the sentence,
the period of community custody shall toll.
Sec.
14. RCW
9.94A.400 and 1999 c 352 s 11 are each amended to read as follows:
(1)(a)
Except as provided in (b) or (c) of this subsection, whenever a person is to be
sentenced for two or more current offenses, the sentence range for each current
offense shall be determined by using all other current and prior convictions as
if they were prior convictions for the purpose of the offender score:
PROVIDED, That if the court enters a finding that some or all of the current
offenses encompass the same criminal conduct then those current offenses shall
be counted as one crime. Sentences imposed under this subsection shall be
served concurrently. Consecutive sentences may only be imposed under the
exceptional sentence provisions of ((RCW 9.94A.120 and 9.94A.390(2)(g) or
any other provision of)) RCW 9.94A.390. "Same criminal conduct,"
as used in this subsection, means two or more crimes that require the same
criminal intent, are committed at the same time and place, and involve the same
victim. This definition applies in cases involving vehicular assault or
vehicular homicide even if the victims occupied the same vehicle.
(b)
Whenever a person is convicted of two or more serious violent offenses((, as
defined in RCW 9.94A.030,)) arising from separate and distinct criminal
conduct, the standard sentence range for the offense with the highest
seriousness level under RCW 9.94A.320 shall be determined using the offender's
prior convictions and other current convictions that are not serious violent
offenses in the offender score and the standard sentence range for other
serious violent offenses shall be determined by using an offender score of
zero. The standard sentence range for any offenses that are not serious
violent offenses shall be determined according to (a) of this subsection. All
sentences imposed under (b) of this subsection shall be served consecutively to
each other and concurrently with sentences imposed under (a) of this
subsection.
(c)
If an offender is convicted under RCW 9.41.040 for unlawful possession of a
firearm in the first or second degree and for the felony crimes of theft of a
firearm or possession of a stolen firearm, or both, the standard
sentence range for each of these current offenses shall be determined by using
all other current and prior convictions, except other current convictions for
the felony crimes listed in this subsection (1)(c), as if they were prior
convictions. The offender shall serve consecutive sentences for each conviction
of the felony crimes listed in this subsection (1)(c), and for each firearm
unlawfully possessed.
(2)(a)
Except as provided in (b) of this subsection, whenever a person while under
sentence for conviction of a felony commits another felony and is
sentenced to another term of confinement, the latter term shall not begin until
expiration of all prior terms.
(b)
Whenever a second or later felony conviction results in community supervision
with conditions not currently in effect, under the prior sentence or sentences
of community supervision the court may require that the conditions of community
supervision contained in the second or later sentence begin during the
immediate term of community supervision and continue throughout the duration of
the consecutive term of community supervision.
(3)
Subject to subsections (1) and (2) of this section, whenever a person is
sentenced for a felony that was committed while the person was not under
sentence for conviction of a felony, the sentence shall run concurrently
with any felony sentence which has been imposed by any court in this or another
state or by a federal court subsequent to the commission of the crime being
sentenced unless the court pronouncing the current sentence expressly orders
that they be served consecutively.
(4)
Whenever any person granted probation under RCW 9.95.210 or 9.92.060, or both,
has the probationary sentence revoked and a prison sentence imposed, that
sentence shall run consecutively to any sentence imposed pursuant to this
chapter, unless the court pronouncing the subsequent sentence expressly orders
that they be served concurrently.
(5)
((However,)) In the case of consecutive sentences, all periods of
total confinement shall be served before any partial confinement, community
service, community supervision, or any other requirement or conditions of any
of the sentences. Except for exceptional sentences as authorized under RCW ((9.94A.120(2)))
9.94A.390, if two or more sentences that run consecutively include
periods of community supervision, the aggregate of the community supervision
period shall not exceed twenty-four months.
Sec.
15. RCW
9.94A.360 and 1999 c 352 s 10 and 1999 c 331 s 1 are each reenacted and amended
to read as follows:
The
offender score is measured on the horizontal axis of the sentencing grid. The
offender score rules are as follows:
The
offender score is the sum of points accrued under this section rounded down to
the nearest whole number.
(1)
A prior conviction is a conviction which exists before the date of sentencing
for the offense for which the offender score is being computed. Convictions
entered or sentenced on the same date as the conviction for which the offender
score is being computed shall be deemed "other current offenses"
within the meaning of RCW 9.94A.400.
(2)
Class A and sex prior felony convictions shall always be included in the offender
score. Class B prior felony convictions other than sex offenses shall not be
included in the offender score, if since the last date of release from
confinement (including full-time residential treatment) pursuant to a felony
conviction, if any, or entry of judgment and sentence, the offender had spent
ten consecutive years in the community without committing any crime that
subsequently results in a conviction. Class C prior felony convictions other
than sex offenses shall not be included in the offender score if, since the
last date of release from confinement (including full-time residential
treatment) pursuant to a felony conviction, if any, or entry of judgment and
sentence, the offender had spent five consecutive years in the community without
committing any crime that subsequently results in a conviction. Serious
traffic convictions shall not be included in the offender score if, since the
last date of release from confinement (including full-time residential
treatment) pursuant to a felony conviction, if any, or entry of judgment and
sentence, the offender spent five years in the community without committing any
crime that subsequently results in a conviction. This subsection applies to
both adult and juvenile prior convictions.
(3)
Out-of-state convictions for offenses shall be classified according to the
comparable offense definitions and sentences provided by Washington law.
Federal convictions for offenses shall be classified according to the
comparable offense definitions and sentences provided by Washington law. If
there is no clearly comparable offense under Washington law or the offense is
one that is usually considered subject to exclusive federal jurisdiction, the
offense shall be scored as a class C felony equivalent if it was a felony under
the relevant federal statute.
(4)
Score prior convictions for felony anticipatory offenses (attempts, criminal
solicitations, and criminal conspiracies) the same as if they were convictions
for completed offenses.
(5)(a)
In the case of multiple prior convictions, for the purpose of computing the
offender score, count all convictions separately, except:
(i)
Prior offenses which were found, under RCW 9.94A.400(1)(a), to encompass the
same criminal conduct, shall be counted as one offense, the offense that yields
the highest offender score. The current sentencing court shall determine with
respect to other prior adult offenses for which sentences were served
concurrently or prior juvenile offenses for which sentences were served
consecutively, whether those offenses shall be counted as one offense or as
separate offenses using the "same criminal conduct" analysis found in
RCW 9.94A.400(1)(a), and if the court finds that they shall be counted as one
offense, then the offense that yields the highest offender score shall be
used. The current sentencing court may presume that such other prior offenses
were not the same criminal conduct from sentences imposed on separate dates, or
in separate counties or jurisdictions, or in separate complaints, indictments,
or informations;
(ii)
In the case of multiple prior convictions for offenses committed before July 1,
1986, for the purpose of computing the offender score, count all adult
convictions served concurrently as one offense, and count all juvenile
convictions entered on the same date as one offense. Use the conviction for
the offense that yields the highest offender score.
(b)
As used in this subsection (5), "served concurrently" means that:
(i) The latter sentence was imposed with specific reference to the former; (ii)
the concurrent relationship of the sentences was judicially imposed; and (iii)
the concurrent timing of the sentences was not the result of a probation or
parole revocation on the former offense.
(6)
If the present conviction is one of the anticipatory offenses of criminal
attempt, solicitation, or conspiracy, count each prior conviction as if the
present conviction were for a completed offense. When these convictions are
used as criminal history, score them the same as a completed crime.
(7)
If the present conviction is for a nonviolent offense and not covered by
subsection (11) or (12) of this section, count one point for each adult prior
felony conviction and one point for each juvenile prior violent felony
conviction and 2 point
for each juvenile prior nonviolent felony conviction.
(8)
If the present conviction is for a violent offense and not covered in
subsection (9), (10), (11), or (12) of this section, count two points for each
prior adult and juvenile violent felony conviction, one point for each prior
adult nonviolent felony conviction, and 2 point
for each prior juvenile nonviolent felony conviction.
(9)
If the present conviction is for a serious violent offense, count three points
for prior adult and juvenile convictions for crimes in this category, two points
for each prior adult and juvenile violent conviction (not already counted), one
point for each prior adult nonviolent felony conviction, and 2 point for each prior juvenile nonviolent felony
conviction.
(10)
If the present conviction is for Burglary 1, count prior convictions as in
subsection (8) of this section; however count two points for each prior adult
Burglary 2 or residential burglary conviction, and one point for each prior
juvenile Burglary 2 or residential burglary conviction.
(11)
If the present conviction is for a felony traffic offense count two points for
each adult or juvenile prior conviction for Vehicular Homicide or Vehicular
Assault; for each felony offense count one point for each adult and 2 point for each juvenile prior conviction; for each
serious traffic offense, other than those used for an enhancement pursuant to
RCW 46.61.520(2), count one point for each adult and 2 point for each juvenile prior conviction.
(12)
If the present conviction is for a drug offense count three points for each
adult prior felony drug offense conviction and two points for each juvenile
drug offense. All other adult and juvenile felonies are scored as in
subsection (8) of this section if the current drug offense is violent, or as in
subsection (7) of this section if the current drug offense is nonviolent.
(13)
If the present conviction is for Willful Failure to Return from Furlough, RCW
72.66.060, Willful Failure to Return from Work Release, RCW 72.65.070, or
Escape from Community Custody, RCW 72.09.310, count only prior escape
convictions in the offender score. Count adult prior escape convictions as one
point and juvenile prior escape convictions as 2 point.
(14)
If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW
9A.76.120, count adult prior convictions as one point and juvenile prior
convictions as 2 point.
(15)
If the present conviction is for Burglary 2 or residential burglary, count
priors as in subsection (7) of this section; however, count two points for each
adult and juvenile prior Burglary 1 conviction, two points for each adult prior
Burglary 2 or residential burglary conviction, and one point for each juvenile
prior Burglary 2 or residential burglary conviction.
(16)
If the present conviction is for a sex offense, count priors as in subsections
(7) through (15) of this section; however count three points for each adult and
juvenile prior sex offense conviction.
(17)
If the present conviction is for an offense committed while the offender was
under community placement, add one point.
Sec.
16. RCW
9.94A.410 and 1986 c 257 s 29 are each amended to read as follows:
For
persons convicted of the anticipatory offenses of criminal attempt,
solicitation, or conspiracy under chapter 9A.28 RCW, the presumptive sentence
is determined by locating the sentencing grid sentence range defined by the
appropriate offender score and the seriousness level of the crime, and
multiplying the range by 75 percent.
((In
calculating an offender score, count each prior conviction as if the present
conviction were for the completed offense. When these convictions are used as
criminal history, score them the same as a completed crime.))
PART
III
Prosecutorial
Standards
Sec.
17. RCW
9.94A.440 and 1999 c 322 s 6 and 1999 c 196 s 11 are each reenacted and amended
to read as follows:
(1)
Decision not to prosecute.
STANDARD:
A prosecuting attorney may decline to prosecute, even though technically
sufficient evidence to prosecute exists, in situations where prosecution would
serve no public purpose, would defeat the underlying purpose of the law in
question or would result in decreased respect for the law.
GUIDELINE/COMMENTARY:
Examples
The
following are examples of reasons not to prosecute which could satisfy the
standard.
(a)
Contrary to Legislative Intent - It may be proper to decline to charge where
the application of criminal sanctions would be clearly contrary to the intent
of the legislature in enacting the particular statute.
(b)
Antiquated Statute - It may be proper to decline to charge where the statute in
question is antiquated in that:
(i)
It has not been enforced for many years; and
(ii)
Most members of society act as if it were no longer in existence; and
(iii)
It serves no deterrent or protective purpose in today's society; and
(iv)
The statute has not been recently reconsidered by the legislature.
This
reason is not to be construed as the basis for declining cases because the law
in question is unpopular or because it is difficult to enforce.
(c)
De Minimus Violation - It may be proper to decline to charge where the
violation of law is only technical or insubstantial and where no public
interest or deterrent purpose would be served by prosecution.
(d)
Confinement on Other Charges - It may be proper to decline to charge because
the accused has been sentenced on another charge to a lengthy period of
confinement; and
(i)
Conviction of the new offense would not merit any additional direct or
collateral punishment;
(ii)
The new offense is either a misdemeanor or a felony which is not particularly
aggravated; and
(iii)
Conviction of the new offense would not serve any significant deterrent
purpose.
(e)
Pending Conviction on Another Charge - It may be proper to decline to charge
because the accused is facing a pending prosecution in the same or another
county; and
(i)
Conviction of the new offense would not merit any additional direct or
collateral punishment;
(ii)
Conviction in the pending prosecution is imminent;
(iii)
The new offense is either a misdemeanor or a felony which is not particularly
aggravated; and
(iv)
Conviction of the new offense would not serve any significant deterrent
purpose.
(f)
High Disproportionate Cost of Prosecution - It may be proper to decline to
charge where the cost of locating or transporting, or the burden on,
prosecution witnesses is highly disproportionate to the importance of
prosecuting the offense in question. This reason should be limited to minor
cases and should not be relied upon in serious cases.
(g)
Improper Motives of Complainant - It may be proper to decline charges because
the motives of the complainant are improper and prosecution would serve no
public purpose, would defeat the underlying purpose of the law in question or
would result in decreased respect for the law.
(h)
Immunity - It may be proper to decline to charge where immunity is to be given
to an accused in order to prosecute another where the accused's information or
testimony will reasonably lead to the conviction of others who are responsible
for more serious criminal conduct or who represent a greater danger to the
public interest.
(i)
Victim Request - It may be proper to decline to charge because the victim
requests that no criminal charges be filed and the case involves the following
crimes or situations:
(i)
Assault cases where the victim has suffered little or no injury;
(ii)
Crimes against property, not involving violence, where no major loss was
suffered;
(iii)
Where doing so would not jeopardize the safety of society.
Care
should be taken to insure that the victim's request is freely made and is not
the product of threats or pressure by the accused.
The
presence of these factors may also justify the decision to dismiss a
prosecution which has been commenced.
Notification
The
prosecutor is encouraged to notify the victim, when practical, and the law
enforcement personnel, of the decision not to prosecute.
(2)
Decision to prosecute.
(a)
STANDARD:
Crimes
against persons will be filed if sufficient admissible evidence exists, which,
when considered with the most plausible, reasonably foreseeable defense that
could be raised under the evidence, would justify conviction by a reasonable
and objective fact-finder. With regard to offenses prohibited by RCW
9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086,
9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or
diversions intended to place the accused in a program of treatment or
counseling, so that treatment, if determined to be beneficial, can be provided
pursuant to ((RCW 9.94A.120(8))) section 20 of this act.
Crimes
against property/other crimes will be filed if the admissible evidence is of
such convincing force as to make it probable that a reasonable and objective
fact-finder would convict after hearing all the admissible evidence and the
most plausible defense that could be raised.
See
table below for the crimes within these categories.
CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS
CRIMES AGAINST PERSONS
Aggravated Murder
1st
Degree Murder
2nd
Degree Murder
1st
Degree Manslaughter
2nd
Degree Manslaughter
1st
Degree Kidnapping
2nd
Degree Kidnapping
1st
Degree Assault
2nd
Degree Assault
3rd
Degree Assault
1st
Degree Assault of a Child
2nd
Degree Assault of a Child
3rd
Degree Assault of a Child
1st
Degree Rape
((1st
Degree Robbery))
2nd
Degree Rape
3rd
Degree Rape
1st
Degree Rape of a Child
2nd
Degree Rape of a Child
3rd
Degree Rape of a Child
1st
Degree Robbery
2nd
Degree Robbery
1st
Degree Arson
((2nd
Degree Kidnaping
2nd
Degree Assault
2nd
Degree Assault of a Child
2nd
Degree Rape
2nd
Degree Robbery))
1st
Degree Burglary
((1st
Degree Manslaughter
2nd
Degree Manslaughter))
1st
Degree Extortion
2nd
Degree Extortion
Indecent
Liberties
Incest
((2nd
Degree Rape of a Child))
Vehicular
Homicide
Vehicular
Assault
((3rd
Degree Rape
3rd
Degree Rape of a Child))
1st
Degree Child Molestation
2nd
Degree Child Molestation
3rd
Degree Child Molestation
((2nd
Degree Extortion))
1st
Degree Promoting Prostitution
Intimidating
a Juror
Communication
with a Minor
Intimidating
a Witness
Intimidating
a Public Servant
Bomb
Threat (if against person)
((3rd
Degree Assault
3rd
Degree Assault of a Child))
Unlawful
Imprisonment
Promoting
a Suicide Attempt
Riot
(if against person)
Stalking
Custodial
Assault
No-Contact Order-Domestic Violence Pretrial (RCW 10.99.040(4) (b)
and (c))
No-Contact Order-Domestic Violence Sentence (RCW 10.99.050(2))
Protection
Order-Domestic Violence Civil (RCW 26.50.110 (4) and (5))
Counterfeiting
(if a violation of RCW 9.16.035(4))
CRIMES AGAINST PROPERTY/OTHER CRIMES
2nd Degree Arson
1st Degree Escape
2nd
Degree Escape
2nd
Degree Burglary
1st
Degree Theft
2nd
Degree Theft
1st
Degree Perjury
2nd
Degree Perjury
1st
Degree Introducing Contraband
2nd
Degree Introducing Contraband
1st
Degree Possession of Stolen Property
2nd
Degree Possession of Stolen Property
Bribery
Bribing
a Witness
Bribe
received by a Witness
Bomb
Threat (if against property)
1st
Degree Malicious Mischief
((2nd
Degree Theft
2nd
Degree Escape
2nd
Degree Introducing Contraband
2nd
Degree Possession of Stolen Property))
2nd
Degree Malicious Mischief
1st
Degree Reckless Burning
Taking
a Motor Vehicle without Authorization
Forgery
((2nd
Degree Perjury))
2nd
Degree Promoting Prostitution
Tampering
with a Witness
Trading
in Public Office
Trading
in Special Influence
Receiving/Granting
Unlawful Compensation
Bigamy
Eluding
a Pursuing Police Vehicle
Willful
Failure to Return from Furlough
Escape
from Community Custody
Riot
(if against property)
1st
Degree Theft((s)) of Livestock
2nd
Degree Theft of Livestock
ALL
OTHER UNCLASSIFIED FELONIES
Selection
of Charges/Degree of Charge
(i)
The prosecutor should file charges which adequately describe the nature of
defendant's conduct. Other offenses may be charged only if they are necessary
to ensure that the charges:
(A)
Will significantly enhance the strength of the state's case at trial; or
(B)
Will result in restitution to all victims.
(ii) The prosecutor should not overcharge to obtain a guilty plea.
Overcharging includes:
(A) Charging a higher degree;
(B)
Charging additional counts.
This
standard is intended to direct prosecutors to charge those crimes which
demonstrate the nature and seriousness of a defendant's criminal conduct, but
to decline to charge crimes which are not necessary to such an indication.
Crimes which do not merge as a matter of law, but which arise from the same
course of conduct, do not all have to be charged.
(b) GUIDELINES/COMMENTARY:
(i) Police Investigation
A
prosecuting attorney is dependent upon law enforcement agencies to conduct the
necessary factual investigation which must precede the decision to prosecute.
The prosecuting attorney shall ensure that a thorough factual investigation has
been conducted before a decision to prosecute is made. In ordinary
circumstances the investigation should include the following:
(A)
The interviewing of all material witnesses, together with the obtaining of
written statements whenever possible;
(B)
The completion of necessary laboratory tests; and
(C)
The obtaining, in accordance with constitutional requirements, of the suspect's
version of the events.
If
the initial investigation is incomplete, a prosecuting attorney should insist
upon further investigation before a decision to prosecute is made, and specify
what the investigation needs to include.
(ii)
Exceptions
In
certain situations, a prosecuting attorney may authorize filing of a criminal
complaint before the investigation is complete if:
(A)
Probable cause exists to believe the suspect is guilty; and
(B)
The suspect presents a danger to the community or is likely to flee if not
apprehended; or
(C)
The arrest of the suspect is necessary to complete the investigation of the
crime.
In
the event that the exception to the standard is applied, the prosecuting
attorney shall obtain a commitment from the law enforcement agency involved to
complete the investigation in a timely manner. If the subsequent investigation
does not produce sufficient evidence to meet the normal charging standard, the
complaint should be dismissed.
(iii)
Investigation Techniques
The
prosecutor should be fully advised of the investigatory techniques that were
used in the case investigation including:
(A)
Polygraph testing;
(B)
Hypnosis;
(C)
Electronic surveillance;
(D)
Use of informants.
(iv)
Pre-Filing Discussions with Defendant
Discussions
with the defendant or his/her representative regarding the selection or
disposition of charges may occur prior to the filing of charges, and potential
agreements can be reached.
(v)
Pre-Filing Discussions with Victim(s)
Discussions
with the victim(s) or victims' representatives regarding the selection or
disposition of charges may occur before the filing of charges. The discussions
may be considered by the prosecutor in charging and disposition decisions, and
should be considered before reaching any agreement with the defendant regarding
these decisions.
PART
IV
Sentencing
Alternatives
NEW
SECTION. Sec. 18.
FIRST-TIME OFFENDER WAIVER. (1) This section applies to offenders who have
never been previously convicted of a felony in this state, federal court, or
another state, and who have never participated in a program of deferred
prosecution for a felony, and who are convicted of a felony that is not:
(a)
Classified as a violent offense or a sex offense under this chapter;
(b)
Manufacture, delivery, or possession with intent to manufacture or deliver a
controlled substance classified in Schedule I or II that is a narcotic drug or
flunitrazepam classified in Schedule IV;
(c)
Manufacture, delivery, or possession with intent to deliver a methamphetamine,
its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2);
or
(d)
The selling for profit of any controlled substance or counterfeit substance
classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of
marihuana.
(2)
In sentencing a first-time offender the court may waive the imposition of a
sentence within the standard sentence range and impose a sentence which may
include up to ninety days of confinement in a facility operated or utilized
under contract by the county and a requirement that the offender refrain from
committing new offenses. The sentence may also include a term of community
supervision or community custody as specified in subsection (3) of this
section, which, in addition to crime-related prohibitions, may include
requirements that the offender perform any one or more of the following:
(a)
Devote time to a specific employment or occupation;
(b)
Undergo available outpatient treatment for up to the period specified in
subsection (3) of this section, or inpatient treatment not to exceed the
standard range of confinement for that offense;
(c)
Pursue a prescribed, secular course of study or vocational training;
(d)
Remain within prescribed geographical boundaries and notify the community
corrections officer prior to any change in the offender's address or
employment;
(e)
Report as directed to a community corrections officer; or
(f)
Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030
and/or perform community service work.
(3)
The terms and statuses applicable to sentences under subsection (2) of this
section are:
(a)
For sentences imposed on or after July 25, 1999, for crimes committed before
July 1, 2000, up to one year of community supervision. If treatment is
ordered, the period of community supervision may include up to the period of
treatment, but shall not exceed two years; and
(b)
For crimes committed on or after July 1, 2000, up to one year of community
custody unless treatment is ordered, in which case the period of community
custody may include up to the period of treatment, but shall not exceed two
years. Any term of community custody imposed under this section is subject to
conditions and sanctions as authorized in this section and in section 25 (2)
and (3) of this act.
(4)
The department shall discharge from community supervision any offender
sentenced under this section before July 25, 1999, who has served at least one
year of community supervision and has completed any treatment ordered by the
court.
NEW
SECTION. Sec. 19. DRUG
OFFENDER SENTENCING ALTERNATIVE. (1) An offender is eligible for the special
drug offender sentencing alternative if:
(a)
The offender is convicted of a felony that is not a violent offense or sex
offense and the violation does not involve a sentence enhancement under RCW
9.94A.310 (3) or (4);
(b)
The offender has no current or prior convictions for a sex offense or violent
offense in this state, another state, or the United States;
(c)
For a violation of the uniform controlled substances act under chapter 69.50
RCW or a criminal solicitation to commit such a violation under chapter 9A.28
RCW, the offense involved only a small quantity of the particular controlled
substance as determined by the judge upon consideration of such factors as the
weight, purity, packaging, sale price, and street value of the controlled
substance; and
(d)
The offender has not been found by the United States attorney general to be
subject to a deportation detainer or order.
(2)
If the standard sentence range is greater than one year and the sentencing
court determines that the offender is eligible for this alternative and that
the offender and the community will benefit from the use of the alternative,
the judge may waive imposition of a sentence within the standard sentence range
and impose a sentence that must include a period of total confinement in a
state facility for one-half of the midpoint of the standard sentence range.
During incarceration in the state facility, offenders sentenced under this
subsection shall undergo a comprehensive substance abuse assessment and
receive, within available resources, treatment services appropriate for the
offender. The treatment services shall be designed by the division of alcohol
and substance abuse of the department of social and health services, in
cooperation with the department of corrections.
The
court shall also impose:
(a)
The remainder of the midpoint of the standard range as a term of community
custody which must include appropriate substance abuse treatment in a program
that has been approved by the division of alcohol and substance abuse of the
department of social and health services;
(b)
Crime-related prohibitions including a condition not to use illegal controlled
substances; and
(c)
A requirement to submit to urinalysis or other testing to monitor that status.
The
court may prohibit the offender from using alcohol or controlled substances and
may require that the monitoring for controlled substances be conducted by the
department or by a treatment alternatives to street crime program or a
comparable court or agency-referred program. The offender may be required to
pay thirty dollars per month while on community custody to offset the cost of
monitoring. In addition, the court shall impose three or more of the following
conditions:
(i)
Devote time to a specific employment or training;
(ii)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer before any change in the offender's address or
employment;
(iii)
Report as directed to a community corrections officer;
(iv)
Pay all court-ordered legal financial obligations;
(v)
Perform community service work;
(vi)
Stay out of areas designated by the sentencing court;
(vii)
Such other conditions as the court may require such as affirmative conditions.
(3)
If the offender violates any of the sentence conditions in subsection (2) of
this section, a violation hearing shall be held by the department unless waived
by the offender. If the department finds that conditions have been willfully
violated, the offender may be reclassified to serve the remaining balance of
the original sentence.
(4)
The department shall determine the rules for calculating the value of a day
fine based on the offender's income and reasonable obligations which the
offender has for the support of the offender and any dependents. These rules
shall be developed in consultation with the administrator for the courts, the
office of financial management, and the commission.
(5)
An offender who fails to complete the special drug offender sentencing alternative
program or who is administratively terminated from the program shall be
reclassified to serve the unexpired term of his or her sentence as ordered by
the sentencing court and shall be subject to all rules relating to earned
release time. An offender who violates any conditions of supervision as
defined by the department shall be sanctioned. Sanctions may include, but are
not limited to, reclassifying the offender to serve the unexpired term of his
or her sentence as ordered by the sentencing court. If an offender is
reclassified to serve the unexpired term of his or her sentence, the offender
shall be subject to all rules relating to earned release time.
NEW
SECTION. Sec. 20.
SPECIAL SEX OFFENDER SENTENCING ALTERNATIVE. (1) Unless the context clearly
requires otherwise, the definitions in this subsection apply to this section
only.
(a)
"Sex offender treatment provider" or "treatment provider"
means a certified sex offender treatment provider as defined in RCW 18.155.020.
(b)
"Victim" means any person who has sustained emotional, psychological,
physical, or financial injury to person or property as a result of the crime
charged. "Victim" also means a parent or guardian of a victim who is
a minor child unless the parent or guardian is the perpetrator of the offense.
(2)
An offender is eligible for the special sex offender sentencing alternative if:
(a)
The offender has been convicted of a sex offense other than a violation of RCW
9A.44.050 or a sex offense that is also a serious violent offense;
(b)
The offender has no prior convictions for a sex offense as defined in RCW
9.94A.030 or any other felony sex offenses in this or any other state; and
(c)
The offender's standard sentence range for the offense includes the possibility
of confinement for less than eleven years.
(3)
If the court finds the offender is eligible for this alternative, the court, on
its own motion or the motion of the state or the offender, may order an
examination to determine whether the offender is amenable to treatment.
(a)
The report of the examination shall include at a minimum the following:
(i)
The offender's version of the facts and the official version of the facts;
(ii)
The offender's offense history;
(iii)
An assessment of problems in addition to alleged deviant behaviors;
(iv)
The offender's social and employment situation; and
(v)
Other evaluation measures used.
The
report shall set forth the sources of the examiner's information.
(b)
The examiner shall assess and report regarding the offender's amenability to
treatment and relative risk to the community. A proposed treatment plan shall
be provided and shall include, at a minimum:
(i)
Frequency and type of contact between 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 and others;
(iv)
Anticipated length of treatment; and
(v)
Recommended crime-related prohibitions.
(c)
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
examiner shall be selected by the party making the motion. The offender 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.
(4)
After receipt of the reports, the court shall consider whether the offender and
the community will benefit from use of this alternative and consider the
victim's opinion whether the offender should receive a treatment disposition
under this section. If the court determines that this alternative is
appropriate, the court shall then impose a sentence within the standard
sentence range. If the sentence imposed is less then eleven years of
confinement, the court may suspend the execution of the sentence and impose the
following conditions of suspension:
(a)
The court shall place the offender on community custody for the length of the
suspended sentence or three years, whichever is greater, and require the
offender to comply with any conditions imposed by the department under section
26 of this act.
(b)
The court shall order treatment for any period up to three years in duration.
The court, in its discretion, shall order outpatient sex offender treatment or
inpatient sex offender treatment, if available. A community mental health
center may not be used for such treatment unless it has an appropriate program
designed for sex offender treatment. The offender shall not change sex
offender treatment providers or treatment conditions without first notifying
the prosecutor, the community corrections officer, and the court. If any party
or the court objects to a proposed change, the offender shall not change
providers or conditions without court approval after a hearing.
(5)
As conditions of the suspended sentence, the court may impose one or more of
the following:
(a)
Up to six months of confinement, not to exceed the sentence range of
confinement for that offense;
(b)
Crime-related prohibitions;
(c)
Require the offender to devote time to a specific employment or occupation;
(d)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer prior to any change in the offender's address or
employment;
(e)
Report as directed to the court and a community corrections officer;
(f)
Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030;
(g)
Perform community service work; or
(h)
Reimburse the victim for the cost of any counseling required as a result of the
offender's crime.
(6)
At the time of sentencing, the court shall set a treatment termination hearing
for three months prior to the anticipated date for completion of treatment.
(7)
The sex offender treatment provider shall submit quarterly reports on the
offender's progress in treatment to the court and the parties. The report
shall reference the treatment plan and include at a minimum the following:
Dates of attendance, offender's compliance with requirements, treatment
activities, the offender's relative progress in treatment, and any other
material specified by the court at sentencing.
(8)
Prior to the treatment termination hearing, the treatment provider and
community corrections officer shall submit written reports to the court and
parties regarding the offender's compliance with treatment and monitoring
requirements, and recommendations regarding termination from treatment,
including proposed community custody conditions. Either party may request, and
the court may order, another evaluation regarding the advisability of
termination from treatment. The offender shall pay the cost of any additional
evaluation ordered unless the court finds the offender to be indigent in which
case the state shall pay the cost. At the treatment termination hearing the
court may: (a) Modify conditions of community custody, and either (b)
terminate treatment, or (c) extend treatment for up to the remaining period of
community custody.
(9)
If a violation of conditions occurs during community custody, the department
shall either impose sanctions as provided for in RCW 9.94A.205(2)(a) or refer
the violation to the court and recommend revocation of the suspended sentence
as provided for in subsections (6) and (8) of this section.
(10)
The court may revoke the suspended sentence at any time during the period of
community custody and order execution of the sentence if: (a) The offender
violates the conditions of the suspended sentence, or (b) the court finds that
the offender is failing to make satisfactory progress in treatment. All confinement
time served during the period of community custody shall be credited to the
offender if the suspended sentence is revoked.
(11)
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 unless 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; or
(b)(i)
No certified providers are available for treatment within a reasonable
geographical distance of the offender's home; and
(ii)
The evaluation and treatment plan comply with this section and the rules
adopted by the department of health.
(12)
If the offender is less than eighteen years of age when the charge is filed,
the state shall pay for the cost of initial evaluation and treatment.
Sec.
21. RCW
9.94A.137 and 1999 c 197 s 5 are each amended to read as follows:
(1)(a)
An offender is eligible to be sentenced to a work ethic camp if the offender:
(i)
Is sentenced to a term of total confinement of not less than twelve months and
one day or more than thirty-six months;
(ii)
Has no current or prior convictions for any sex offenses or for violent
offenses; and
(iii)
Is not currently subject to a sentence for, or being prosecuted for, a
violation of the uniform controlled substances act or a criminal solicitation
to commit such a violation under chapter 9A.28 or 69.50 RCW.
(b)
The length of the work ethic camp shall be at least one hundred twenty days and
not more than one hundred eighty days.
(2)
If the sentencing ((judge)) court determines that the offender is
eligible for the work ethic camp and is likely to qualify under subsection (3)
of this section, the judge shall impose a sentence within the standard sentence
range and may recommend that the offender serve the sentence at a work ethic
camp. In sentencing an offender to the work ethic camp, the court shall specify:
(a) That upon completion of the work ethic camp the offender shall be released
on community custody for any remaining time of total confinement; (b) the
applicable conditions of supervision on community custody status as required by
((RCW 9.94A.120(9)(b))) section 22(4) of this act and authorized
by ((RCW 9.94A.120(9)(c))) section 22(5) of this act; and (c)
that violation of the conditions may result in a return to total confinement
for the balance of the offender's remaining time of confinement.
(3)
The department shall place the offender in the work ethic camp program, subject
to capacity, unless: (a) The department determines that the offender has
physical or mental impairments that would prevent participation and completion
of the program; (b) the department determines that the offender's custody level
prevents placement in the program; (c) the offender refuses to agree to the
terms and conditions of the program; (d) the offender has been found by the
United States attorney general to be subject to a deportation detainer or
order; or (e) the offender has participated in the work ethic camp program in
the past.
(4)
An offender who fails to complete the work ethic camp program, who is
administratively terminated from the program, or who otherwise violates any
conditions of supervision, as defined by the department, shall be reclassified
to serve the unexpired term of his or her sentence as ordered by the sentencing
((judge)) court and shall be subject to all rules relating to
earned ((early)) release time.
(5)
During the last two weeks prior to release from the work ethic camp program the
department shall provide the offender with comprehensive transition training.
PART
V
Offenders
in the Community
NEW
SECTION. Sec. 22.
COMMUNITY PLACEMENT. When a court sentences an offender to a term of total
confinement in the custody of the department for any of the offenses specified
in this section, the court shall also sentence the offender to a term of
community placement as provided in this section.
(1)
The court shall order a one-year term of community placement for the following:
(a)
A sex offense or a serious violent offense committed after July 1, 1988, but
before July 1, 1990; or
(b)
An offense committed on or after July 1, 1988, but before July 25, 1999, that
is:
(i)
Assault in the second degree;
(ii)
Assault of a child in the second degree;
(iii)
A crime against persons where it is determined in accordance with RCW 9.94A.125
that the offender or an accomplice was armed with a deadly weapon at the time
of commission; or
(iv)
A felony offense under chapter 69.50 or 69.52 RCW not sentenced under section
19 of this act.
(2)
The court shall sentence the offender to a term of community placement of two
years or up to the period of earned release awarded pursuant to RCW 9.94A.150,
whichever is longer, for:
(a)
An offense categorized as a sex offense committed on or after July 1, 1990, but
before June 6, 1996, including those sex offenses also included in other
offense categories;
(b)
A serious violent offense other than a sex offense committed on or after July
1, 1990, but before July 1, 2000; or
(c)
A vehicular homicide or vehicular assault committed on or after July 1, 1990,
but before July 1, 2000.
(3)
The community placement ordered under this section shall begin either upon
completion of the term of confinement or at such time as the offender is
transferred to community custody in lieu of earned release. When the court
sentences an offender to the statutory maximum sentence then the community
placement portion of the sentence shall consist entirely of the community
custody to which the offender may become eligible. Any period of community
custody actually served shall be credited against the community placement portion
of the sentence.
(4)
Unless a condition is waived by the court, the terms of any community placement
imposed under this section shall include the following conditions:
(a)
The offender shall report to and be available for contact with the assigned community
corrections officer as directed;
(b)
The offender shall work at department-approved education, employment, or
community service, or any combination thereof;
(c)
The offender shall not possess or consume controlled substances except pursuant
to lawfully issued prescriptions;
(d)
The offender shall pay supervision fees as determined by the department; and
(e)
The residence location and living arrangements shall be subject to the prior
approval of the department during the period of community placement.
(5)
As a part of any terms of community placement imposed under this section, the
court may also order one or more of the following special conditions:
(a)
The offender shall remain within, or outside of, a specified geographical
boundary;
(b)
The offender shall not have direct or indirect contact with the victim of the
crime or a specified class of individuals;
(c)
The offender shall participate in crime-related treatment or counseling
services;
(d)
The offender shall not consume alcohol; or
(e)
The offender shall comply with any crime-related prohibitions.
(6)
An offender convicted of a felony sex offense against a minor victim after June
6, 1996, shall comply with any terms and conditions of community placement
imposed by the department relating to contact between the sex offender and a
minor victim or a child of similar age or circumstance as a previous victim.
(7)
Prior to or during community placement, upon recommendation of the department,
the sentencing court may remove or modify any conditions of community placement
so as not to be more restrictive.
NEW
SECTION. Sec. 23.
COMMUNITY PLACEMENT FOR SPECIFIED OFFENDERS. Except for persons sentenced
under section 22(2) or 24 of this act, when a court sentences a person to a
term of total confinement to the custody of the department for a violent
offense, any crime against persons under RCW 9.94A.440(2), or any felony
offense under chapter 69.50 or 69.52 RCW not sentenced under section 19 of this
act, committed on or after July 25, 1999, but before July 1, 2000, the court
shall in addition to the other terms of the sentence, sentence the offender to
a one-year term of community placement beginning either upon completion of the
term of confinement or at such time as the offender is transferred to community
custody in lieu of earned release in accordance with RCW 9.94A.150 (1) and
(2). When the court sentences the offender under this section to the statutory
maximum period of confinement, then the community placement portion of the
sentence shall consist entirely of such community custody to which the offender
may become eligible, in accordance with RCW 9.94A.150 (1) and (2). Any period
of community custody actually served shall be credited against the community
placement portion of the sentence.
NEW
SECTION. Sec. 24.
COMMUNITY CUSTODY FOR SEX OFFENDERS. (1) When a court sentences a person to
the custody of the department for an offense categorized as a sex offense,
including those sex offenses also included in other offense categories,
committed on or after June 6, 1996, and before July 1, 2000, the court shall,
in addition to other terms of the sentence, sentence the offender to community
custody for three years or up to the period of earned release awarded pursuant
to RCW 9.94A.150, whichever is longer. The community custody shall begin
either upon completion of the term of confinement or at such time as the
offender is transferred to community custody in lieu of earned release.
(2)
Unless a condition is waived by the court, the terms of community custody
imposed under this section shall be the same as those provided for in section
22(4) of this act and may include those provided for in section 22(5) of this
act. As part of any sentence that includes a term of community custody imposed
under this section, the court shall also require the offender to comply with
any conditions imposed by the department under section 26 of this act.
(3)
At any time prior to the completion of a sex offender's term of community
custody, if the court finds that public safety would be enhanced, the court may
impose and enforce an order extending any or all of the conditions imposed
pursuant to this section for a period up to the maximum allowable sentence for
the crime as it is classified in chapter 9A.20 RCW, regardless of the
expiration of the offender's term of community custody. If a violation of a
condition extended under this subsection occurs after the expiration of the
offender's term of community custody, it shall be deemed a violation of the
sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of
court as provided for in RCW 7.21.040.
NEW
SECTION. Sec. 25.
COMMUNITY CUSTODY FOR SPECIFIED OFFENDERS. (1) When a court sentences a person
to the custody of the department for a sex offense, a violent offense, any
crime against persons under RCW 9.94A.440(2), or a felony offense under chapter
69.50 or 69.52 RCW not sentenced under section 19 of this act, committed on or
after July 1, 2000, the court shall in addition to the other terms of the
sentence, sentence the offender to community custody for the community custody
range established under RCW 9.94A.040 or up to the period of earned release awarded
pursuant to RCW 9.94A.150 (1) and (2), whichever is longer. The community
custody shall begin either upon completion of the term of confinement or at
such time as the offender is transferred to community custody in lieu of earned
release in accordance with RCW 9.94A.150 (1) and (2).
(2)(a)
Unless a condition is waived by the court, the conditions of community custody
shall include those provided for in section 22(4) of this act. The conditions
may also include those provided for in section 22(5) of this act. The court
may also order the offender to participate in rehabilitative programs or
otherwise perform affirmative conduct reasonably related to the circumstances
of the offense, the offender's risk of reoffending, or the safety of the community,
and the department shall enforce such conditions pursuant to subsection (6) of
this section.
(b)
As part of any sentence that includes a term of community custody imposed under
this subsection, the court shall also require the offender to comply with any
conditions imposed by the department under section 26 of this act. The
department shall assess the offender's risk of reoffense and may establish and
modify additional conditions of the offender's community custody based upon the
risk to community safety. In addition, the department may require the offender
to participate in rehabilitative programs, or otherwise perform affirmative
conduct, and to obey all laws.
(c)
The department may not impose conditions that are contrary to those ordered by
the court and may not contravene or decrease court imposed conditions. The
department shall notify the offender in writing of any such conditions or
modifications. In setting, modifying, and enforcing conditions of community
custody, the department shall be deemed to be performing a quasi-judicial
function.
(3)
If an offender violates conditions imposed by the court or the department
pursuant to this section during community custody, the department may transfer
the offender to a more restrictive confinement status and impose other
available sanctions as provided in RCW 9.94A.205 and 9.94A.207.
(4)
Except for terms of community custody under section 20 of this act, the
department shall discharge the offender from community custody on a date
determined by the department, which the department may modify, based on risk
and performance of the offender, within the range or at the end of the period
of earned release, whichever is later.
(5)
At any time prior to the completion or termination of a sex offender's term of
community custody, if the court finds that public safety would be enhanced, the
court may impose and enforce an order extending any or all of the conditions
imposed pursuant to this section for a period up to the maximum allowable
sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of
the expiration of the offender's term of community custody. If a violation of
a condition extended under this subsection occurs after the expiration of the
offender's term of community custody, it shall be deemed a violation of the
sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of
court as provided for in RCW 7.21.040. If the court extends a condition beyond
the expiration of the term of community custody, the department is not
responsible for supervision of the offender's compliance with the condition.
(6)
Within the funds available for community custody, the department shall
determine conditions and duration of community custody on the basis of risk to
community safety, and shall supervise offenders during community custody on the
basis of risk to community safety and conditions imposed by the court. The
secretary shall adopt rules to implement the provisions of this subsection.
(7)
By the close of the next business day after receiving notice of a condition
imposed or modified by the department, an offender may request an
administrative review under rules adopted by the department. The condition
shall remain in effect unless the reviewing officer finds that it is not reasonably
related to any of the following: (a) The crime of conviction; (b) the
offender's risk of reoffending; or (c) the safety of the community.
NEW
SECTION. Sec. 26.
SUPERVISION OF OFFENDERS. (1)(a) All offenders sentenced to terms involving
community supervision, community service, community placement, community
custody, or legal financial obligation shall be under the supervision of the
department and shall follow explicitly the instructions and conditions of the
department. The department may require an offender to perform affirmative acts
it deems appropriate to monitor compliance with the conditions of the sentence
imposed.
(b)
The instructions shall include, at a minimum, reporting as directed to a
community corrections officer, remaining within prescribed geographical
boundaries, notifying the community corrections officer of any change in the
offender's address or employment, and paying the supervision fee assessment.
(c)
For offenders sentenced to terms involving community custody for crimes
committed on or after June 6, 1996, the department may include, in addition to
the instructions in (b) of this subsection, any appropriate conditions of
supervision, including but not limited to, prohibiting the offender from having
contact with any other specified individuals or specific class of individuals.
(d)
For offenders sentenced to terms of community custody for crimes committed on
or after July 1, 2000, the department may impose conditions as specified in
section 25 of this act.
The
conditions authorized under (c) of this subsection may be imposed by the
department prior to or during an offender's community custody term. If a
violation of conditions imposed by the court or the department pursuant to
section 24 of this act occurs during community custody, it shall be deemed a
violation of community placement for the purposes of RCW 9.94A.207 and shall
authorize the department to transfer an offender to a more restrictive
confinement status as provided in RCW 9.94A.205. At any time prior to the
completion of an offender's term of community custody, the department may
recommend to the court that any or all of the conditions imposed by the court
or the department pursuant to section 24 or 25 of this act be continued beyond
the expiration of the offender's term of community custody as authorized in
section 25 (3) or (5) of this act.
The
department may require offenders to pay for special services rendered on or
after July 25, 1993, including electronic monitoring, day reporting, and
telephone reporting, dependent upon the offender's ability to pay. The
department may pay for these services for offenders who are not able to pay.
(2)
No offender sentenced to terms involving community supervision, community
service, community custody, or community placement under the supervision of the
department may own, use, or possess firearms or ammunition. Offenders who own,
use, or are found to be in actual or constructive possession of firearms or
ammunition shall be subject to the violation process and sanctions under RCW
9.94A.200, 9.94A.205, and 9.94A.207. "Constructive possession" as
used in this subsection means the power and intent to control the firearm or
ammunition. "Firearm" as used in this subsection has the same
definition as in RCW 9.41.010.
Sec.
27. RCW
9.94A.135 and 1991 c 181 s 2 are each amended to read as follows:
Participation
in a work crew is conditioned upon the offender's acceptance into the program,
abstinence from alcohol and controlled substances as demonstrated by urinalysis
and breathalyzer monitoring, with the cost of monitoring to be paid by the
offender, unless indigent; and upon compliance with the rules of the program,
which rules ((shall include the requirements that)) require the
offender to work to the best of his or her abilities and ((that he or
she)) provide the program with accurate, verified residence information.
Work crew may be imposed simultaneously with electronic home detention.
Where
work crew is imposed as part of a sentence of nine months or more, the offender
must serve a minimum of thirty days of total confinement before being eligible
for work crew.
Work
crew tasks shall be performed for a minimum of thirty-five hours per week.
Only those offenders sentenced to a facility operated or utilized under
contract by a county or the state, or sanctioned under RCW 9.94A.205, are
eligible to participate on a work crew. Offenders sentenced for a sex offense
are not eligible for the work crew program.
An
offender who has successfully completed four weeks of work crew at thirty-five
hours per week shall thereafter receive credit toward the work crew sentence
for hours worked at approved, verified employment. Such employment credit may
be earned for up to twenty-four hours actual employment per week provided,
however, that every such offender shall continue active participation in work
crew((s)) projects according to a schedule approved by a work crew
supervisor until the work crew sentence has been served.
The
hours served as part of a work crew sentence may include substance abuse
counseling and/or job skills training.
The
civic improvement tasks performed by offenders on work crew shall be unskilled
labor for the benefit of the community as determined by the head of the county
executive branch or his or her designee. Civic improvement tasks shall not be
done on private property unless it is owned or operated by a nonprofit entity,
except that, for emergency purposes only, work crews may perform snow removal
on any private property. The civic improvement tasks shall have minimal
negative impact on existing private industries or the labor force in the county
where the service or labor is performed. The civic improvement tasks shall not
affect employment opportunities for people with developmental disabilities
contracted through sheltered workshops as defined in RCW 82.04.385. In case
any dispute arises as to a civic improvement task having more than minimum
negative impact on existing private industries or labor force in the county
where their service or labor is performed, the matter shall be referred by an
interested party, as defined in RCW 39.12.010(4), for arbitration to the
director of the department of labor and industries of the state.
Whenever
an offender receives credit against a work crew sentence for hours of approved,
verified employment, the offender shall pay to the ((department)) agency
administering the program the monthly assessment of an amount not less than ten
dollars per month nor more than fifty dollars per month. This assessment shall
be considered payment of the costs of providing the work crew program to an
offender. The court may exempt a person from the payment of all or any part of
the assessment based upon any of the following factors:
(1)
The offender has diligently attempted but has been unable to obtain employment
that ((provided)) provides the offender sufficient income to make
such payment.
(2)
The offender is a student in a school, college, university, or a course of
vocational or technical training designed to fit the student for gainful
employment.
(3)
The offender has an employment handicap, as determined by an examination acceptable
to or ordered by the court.
(4)
The offender is responsible for the support of dependents and the payment of
the assessment constitutes an undue hardship.
(5)
Other extenuating circumstances as determined by the court.
Sec.
28. RCW
9.94A.150 and 1999 c 324 s 1 and 1999 c 37 s 1 are each reenacted and amended
to read as follows:
No
person serving a sentence imposed pursuant to this chapter and committed to the
custody of the department shall leave the confines of the correctional facility
or be released prior to the expiration of the sentence except as follows:
(1)
Except as otherwise provided for in subsection (2) of this section, the term of
the sentence of an offender committed to a correctional facility operated by the
department((,)) may be reduced by earned ((early)) release time
in accordance with procedures that shall be developed and promulgated by the
correctional agency having jurisdiction in which the offender is confined. The
earned ((early)) release time shall be for good behavior and good
performance, as determined by the correctional agency having jurisdiction. The
correctional agency shall not credit the offender with earned ((early))
release credits in advance of the offender actually earning the credits. Any
program established pursuant to this section shall allow an offender to earn
early release credits for presentence incarceration. If an offender is
transferred from a county jail to the department ((of corrections)), the
administrator of a county jail facility shall certify to the department
the amount of time spent in custody at the facility and the amount of earned ((early))
release time. ((In the case of)) An offender who has been
convicted of a felony committed after July 23, 1995, that involves any
applicable deadly weapon enhancements under RCW 9.94A.310 (3) or (4), or both,
shall not receive any good time credits or earned ((early)) release time
for that portion of his or her sentence that results from any deadly weapon
enhancements. In the case of an offender convicted of a serious violent
offense, or a sex offense that is a class A felony, committed on or after July
1, 1990, the aggregate earned ((early)) release time may not exceed
fifteen percent of the sentence. In no other case shall the aggregate earned
((early)) release time exceed one-third of the total sentence;
(2)(a)
A person convicted of a sex offense or an offense categorized as a serious
violent offense, assault in the second degree, vehicular homicide, vehicular
assault, assault of a child in the second degree, any crime against ((a))
persons where it is determined in accordance with RCW 9.94A.125 that the
((defendant)) offender or an accomplice was armed with a deadly
weapon at the time of commission, or any felony offense under chapter 69.50 or
69.52 RCW, committed before July 1, 2000, may become eligible, in
accordance with a program developed by the department, for transfer to
community custody status in lieu of earned ((early)) release time
pursuant to subsection (1) of this section;
(b)
A person convicted of a sex offense, a violent offense, any crime against
persons under RCW 9.94A.440(2), or a felony offense under chapter 69.50 or
69.52 RCW, committed on or after July 1, 2000, may become eligible, in
accordance with a program developed by the department, for transfer to
community custody status in lieu of earned release time pursuant to subsection
(1) of this section;
(3)
An offender may leave a correctional facility pursuant to an authorized
furlough or leave of absence. In addition, offenders may leave a correctional
facility when in the custody of a corrections officer or officers;
(4)(a)
The secretary ((of corrections)) may authorize an extraordinary medical
placement for an offender when all of the following conditions exist:
(i)
The offender has a medical condition that is serious enough to require costly
care or treatment;
(ii)
The offender poses a low risk to the community because he or she is physically
incapacitated due to age or the medical condition; and
(iii)
Granting the extraordinary medical placement will result in a cost savings to
the state.
(b)
An offender sentenced to death or to life imprisonment without the possibility
of release or parole is not eligible for an extraordinary medical placement ((under
this subsection)).
(c)
The secretary shall require electronic monitoring for all offenders in
extraordinary medical placement unless the electronic monitoring equipment
interferes with the function of the offender's medical equipment or results in
the loss of funding for the offender's medical care. The secretary shall
specify who shall provide the monitoring services and the terms under which the
monitoring shall be performed.
(d)
The secretary may revoke an extraordinary medical placement under this
subsection at any time.
(5)
The governor, upon recommendation from the clemency and pardons board, may
grant an extraordinary release for reasons of serious health problems,
senility, advanced age, extraordinary meritorious acts, or other extraordinary
circumstances;
(6)
No more than the final six months of the sentence may be served in partial
confinement designed to aid the offender in finding work and reestablishing
himself or herself in the community;
(7)
The governor may pardon any offender;
(8)
The department ((of corrections)) may release an offender from
confinement any time within ten days before a release date calculated under
this section; and
(9)
An offender may leave a correctional facility prior to completion of his or her
sentence if the sentence has been reduced as provided in RCW 9.94A.160.
Notwithstanding
any other provisions of this section, an offender sentenced for a felony crime
listed in ((RCW 9.94A.120(4))) section 7 of this act as subject
to a mandatory minimum sentence of total confinement shall not be released from
total confinement before the completion of the listed mandatory minimum
sentence for that felony crime of conviction unless allowed under ((RCW
9.94A.120(4))) section 7 of this act, however persistent offenders are
not eligible for extraordinary medical placement.
Sec.
29. RCW
9.94A.180 and 1999 c 143 s 15 are each amended to read as follows:
(1)
An offender sentenced to a term of partial confinement shall be confined in the
facility for at least eight hours per day or, if serving a work crew sentence
shall comply with the conditions of that sentence as set forth in RCW
9.94A.030(((26))) (30) and 9.94A.135. The offender shall be
required as a condition of partial confinement to report to the facility at designated
times. During the period of partial confinement, an offender may be
required to comply with crime-related prohibitions ((during the period of
partial confinement)) and affirmative conditions imposed by the court or
the department pursuant to this chapter.
(2)
An offender in a county jail ordered to serve all or part of a term of less
than one year in work release, work crew, or a program of home detention who
violates the rules of the work release facility, work crew, or program of home
detention or fails to remain employed or enrolled in school may be transferred
to the appropriate county detention facility without further court order but
shall, upon request, be notified of the right to request an administrative
hearing on the issue of whether or not the offender failed to comply with the
order and relevant conditions. Pending such hearing, or in the absence of a
request for the hearing, the offender shall serve the remainder of the term of
confinement as total confinement. This subsection shall not affect transfer or
placement of offenders committed to the ((state)) department ((of
corrections)).
(3) Participation in work release shall be conditioned upon the
offender attending work or school at regularly defined hours and abiding by the
rules of the work release facility.
Sec.
30. RCW
9.94A.185 and 1995 c 108 s 2 are each amended to read as follows:
(1)
Home detention may not be imposed for offenders convicted of:
(a)
A violent offense((,));
(b)
Any sex offense((,));
(c)
Any drug offense((,));
(d)
Reckless burning in the first or second degree as defined in RCW 9A.48.040
or 9A.48.050((,));
(e)
Assault in the third degree as defined in RCW 9A.36.031((,));
(f)
Assault of a child in the third degree((,));
(g)
Unlawful imprisonment as defined in RCW 9A.40.040((,)); or
(h)
Harassment as defined in RCW 9A.46.020.
Home
detention may be imposed for offenders convicted of possession of a controlled
substance under RCW 69.50.401(d) or forged prescription for a controlled
substance under RCW 69.50.403 if the offender fulfills the participation
conditions set forth in this ((subsection [section])) section and
is monitored for drug use by a treatment alternatives to street crime program
or a comparable court or agency-referred program.
(((1)))
(2) Home detention may be imposed for offenders convicted of burglary in
the second degree as defined in RCW 9A.52.030 or residential burglary
conditioned upon the offender:
(a)
Successfully completing twenty-one days in a work release program((,));
(b)
Having no convictions for burglary in the second degree or residential
burglary during the preceding two years and not more than two prior convictions
for burglary or residential burglary((,));
(c)
Having no convictions for a violent felony offense during the preceding
two years and not more than two prior convictions for a violent felony
offense((,));
(d)
Having no prior charges of escape((,)); and
(e)
Fulfilling the other conditions of the home detention program.
(((2)))
(3) Participation in a home detention program shall be conditioned upon:
(a)
The offender obtaining or maintaining current employment or attending a regular
course of school study at regularly defined hours, or the offender performing
parental duties to offspring or minors normally in the custody of the
offender((,));
(b)
Abiding by the rules of the home detention program((,));
and
(c)
Compliance with court-ordered legal financial obligations. The home
detention program may also be made available to offenders whose charges and
convictions do not otherwise disqualify them if medical or health-related
conditions, concerns or treatment would be better addressed under the home
detention program, or where the health and welfare of the offender, other inmates,
or staff would be jeopardized by the offender's incarceration. Participation
in the home detention program for medical or health-related reasons is
conditioned on the offender abiding by the rules of the home detention program
and complying with court-ordered restitution.
PART
VI
Legal
Financial Obligations
Sec.
31. RCW
9.94A.145 and 1999 c 196 s 6 are each amended to read as follows:
(1)
Whenever a person is convicted of a felony, the court may order the payment of
a legal financial obligation as part of the sentence. The court must on either
the judgment and sentence or on a subsequent order to pay, designate the total
amount of a legal financial obligation and segregate this amount among the
separate assessments made for restitution, costs, fines, and other assessments
required by law. On the same order, the court is also to set a sum that the
offender is required to pay on a monthly basis towards satisfying the legal
financial obligation. If the court fails to set the offender monthly payment
amount, the department shall set the amount. Upon receipt of an offender's
monthly payment, restitution shall be paid prior to any payments of other
monetary obligations. After restitution is satisfied, the county clerk shall
distribute the payment proportionally among all other fines, costs, and
assessments imposed, unless otherwise ordered by the court.
(2)
If the court determines that the offender, at the time of sentencing, has the
means to pay for the cost of incarceration, the court may require the offender
to pay for the cost of incarceration at a rate of fifty dollars per day of
incarceration. Payment of other court-ordered financial obligations, including
all legal financial obligations and costs of supervision shall take precedence
over the payment of the cost of incarceration ordered by the court. All funds
recovered from offenders for the cost of incarceration in the county jail shall
be remitted to the county and the costs of incarceration in a prison shall be
remitted to the department ((of corrections)).
(3)
The court may add to the judgment and sentence or subsequent order to pay a
statement that a notice of payroll deduction is to be issued immediately
((issued)). If the court chooses not to order the immediate issuance of
a notice of payroll deduction at sentencing, the court shall add to the
judgment and sentence or subsequent order to pay a statement that a notice of
payroll deduction may be issued or other income-withholding action may be
taken, without further notice to the offender if a monthly court-ordered legal
financial obligation payment is not paid when due, and an amount equal to or
greater than the amount payable for one month is owed.
If
a judgment and sentence or subsequent order to pay does not include the
statement that a notice of payroll deduction may be issued or other
income-withholding action may be taken if a monthly legal financial obligation
payment is past due, the department may serve a notice on the offender stating
such requirements and authorizations. Service shall be by personal service or
any form of mail requiring a return receipt.
(4)
((All legal financial obligations that are ordered as a result of a
conviction for a felony, may also be enforced)) Independent of the
department, the party or entity to whom the legal financial obligation is owed
shall have the authority to use any other remedies available to the party or
entity to collect the legal financial obligation. These remedies include
enforcement in the same manner as a judgment in a civil action by the party
or entity to whom the legal financial obligation is owed. Restitution
collected through civil enforcement must be paid through the registry of the
court and must be distributed proportionately according to each victim's loss
when there is more than one victim. The judgment and sentence shall identify
the party or entity to whom restitution is owed so that the state, party, or
entity may enforce the judgment. If restitution is ordered pursuant to RCW
9.94A.140(((3))) (6) or 9.94A.142(((3))) (6) to a
victim of rape of a child ((and the)) or a victim's child born
from the rape, the Washington state child support registry shall be identified
as the party to whom payments must be made. Restitution obligations arising
from the rape of a child in the first, second, or third degree that result in
the pregnancy of the victim may be enforced for the time periods provided under
RCW 9.94A.140(((3))) (6) and 9.94A.142(((3))) (6).
All other legal financial obligations may be enforced at any time during the
ten-year period following the offender's release from total confinement or
within ten years of entry of the judgment and sentence, whichever period is
longer. Prior to the expiration of the initial ten-year period, the superior
court may extend the criminal judgment an additional ten years for payment of
legal financial obligations including crime victims' assessments. If
jurisdiction under the criminal judgment is extended, the department is not
responsible for supervision of the offender during the subsequent period. ((Independent
of the department, the party or entity to whom the legal financial obligation
is owed shall have the authority to utilize any other remedies available to the
party or entity to collect the legal financial obligation.))
(5)
In order to assist the court in setting a monthly sum that the offender must
pay during the period of supervision, the offender is required to report to the
department for purposes of preparing a recommendation to the court. When
reporting, the offender is required, under oath, to respond truthfully
and honestly ((respond)) to all questions concerning present, past, and
future earning capabilities and the location and nature of all property or
financial assets. The offender is further required to bring ((any and))
all documents ((as)) requested by the department.
(6)
After completing the investigation, the department shall make a report to the
court on the amount of the monthly payment that the offender should be required
to make towards a satisfied legal financial obligation.
(7)
During the period of supervision, the department may make a recommendation to
the court that the offender's monthly payment schedule be modified so as to
reflect a change in financial circumstances. If the department sets the
monthly payment amount, the department may modify the monthly payment amount
without the matter being returned to the court. ((Also,)) During
the period of supervision, the ((offender)) department may ((be
required at the request of the department)) require the offender to
report to the department for the purposes of reviewing the appropriateness of
the collection schedule for the legal financial obligation. During this
reporting, the offender is required under oath to respond truthfully and
honestly ((respond)) to all questions concerning earning capabilities
and the location and nature of all property or financial assets. ((Also,))
The offender ((is required to)) shall bring ((any and))
all documents ((as)) requested by the department in order to prepare the
collection schedule.
(8)
After the judgment and sentence or payment order is entered, the department ((shall))
is authorized, for any period of supervision ((be authorized to)),
to collect the legal financial obligation from the offender. Any amount
collected by the department shall be remitted daily to the county clerk for the
purpose((s)) of disbursements. The department is authorized to accept
credit cards as payment for a legal financial obligation, and any costs
incurred related to accepting credit card payments shall be the responsibility
of the offender.
(9)
The department or any obligee of the legal financial obligation may seek a
mandatory wage assignment for the purposes of obtaining satisfaction for the
legal financial obligation pursuant to RCW 9.94A.2001.
(10)
The requirement that the offender pay a monthly sum towards a legal financial
obligation constitutes a condition or requirement of a sentence and the
offender is subject to the penalties for noncompliance as provided in
RCW 9.94A.200 ((for noncompliance)), 9.94A.205, or 9.94A.207.
(11)
The county clerk shall provide the department with individualized monthly
billings for each offender with an unsatisfied legal financial obligation and
shall provide the department with notice of payments by such offenders no less
frequently than weekly.
(12)
The department may arrange for the collection of unpaid legal financial
obligations through the county clerk, or through another entity if the clerk
does not assume responsibility for collection. The costs for collection
services shall be paid by the offender.
(13)
Nothing in this chapter makes the department, the state, or any of its
employees, agents, or other persons acting on their behalf liable under any
circumstances for the payment of these legal financial obligations.
Sec.
32. RCW
9.94A.140 and 1997 c 121 s 3 and 1997 c 52 s 1 are each reenacted and amended
to read as follows:
This
section applies to offenses committed on or before July 1, 1985.
(1)
If restitution is ordered, the court shall determine the amount of restitution
due at the sentencing hearing or within one hundred eighty days. The court may
continue the hearing beyond the one hundred eighty days for good cause. The
court shall then set a minimum monthly payment that the offender is required to
make towards the restitution that is ordered. The court should take into
consideration the total amount of the restitution owed, the offender's present,
past, and future ability to pay, as well as any assets that the offender may
have.
(2)
During the period of supervision, the community corrections officer may examine
the offender to determine if there has been a change in circumstances that
warrants an amendment of the monthly payment schedule. The community
corrections officer may recommend a change to the schedule of payment and shall
inform the court of the recommended change and the reasons for the change. The
sentencing court may then reset the monthly minimum payments based on the report
from the community corrections officer of the change in circumstances. (3)
Except as provided in subsection (((3))) (6) of this section,
restitution ordered by a court pursuant to a criminal conviction shall be based
on easily ascertainable damages for injury to or loss of property, actual
expenses incurred for treatment for injury to persons, and lost wages resulting
from injury. Restitution shall not include reimbursement for damages for
mental anguish, pain and suffering, or other intangible losses, but may include
the costs of counseling reasonably related to the offense. The amount of
restitution shall not exceed double the amount of the offender's gain or the
victim's loss from the commission of the ((crime)) offense.
(4)
For the purposes of this section, the offender shall remain under the court's
jurisdiction for a term of ten years following the offender's release from
total confinement or ten years subsequent to the entry of the judgment and
sentence, whichever period is longer. Prior to the expiration of the initial
ten-year period, the superior court may extend jurisdiction under the criminal
judgment an additional ten years for payment of restitution. If jurisdiction
under the criminal judgment is extended, the department is not responsible for
supervision of the offender during the subsequent period. The portion of the
sentence concerning restitution may be modified as to amount, terms and
conditions during either the initial ten-year period or subsequent ten-year
period if the criminal judgment is extended, regardless of the expiration of
the offender's term of community supervision and regardless of the statutory
maximum sentence for the crime. The court may not reduce the total
amount of restitution ordered because the offender may lack the ability to pay
the total amount. The offender's compliance with the restitution shall be
supervised by the department ((of corrections)).
(((2)))
(5) Restitution may be ordered whenever the offender is convicted of an
offense which results in injury to any person or damage to or loss of property
or as provided in subsection (((3))) (6) of this section. In
addition, restitution may be ordered to pay for an injury, loss, or damage if
the offender pleads guilty to a lesser offense or fewer offenses and agrees
with the prosecutor's recommendation that the offender be required to pay
restitution to a victim of an offense or offenses which are not prosecuted
pursuant to a plea agreement.
(((3)))
(6) Restitution for the crime of rape of a child in the first, second,
or third degree, in which the victim becomes pregnant, shall include: (a) All
of the victim's medical expenses that are associated with the rape and
resulting pregnancy; and (b) child support for any child born as a result of
the rape if child support is ordered pursuant to a ((civil)) proceeding
in superior court or administrative order for support for that child. The
clerk must forward any restitution payments made on behalf of the victim's
child to the Washington state child support registry under chapter 26.23 RCW.
Identifying information about the victim and child shall not be included in the
order. The ((defendant)) offender shall receive a credit against
any obligation owing under the administrative or superior court order for support
of the victim's child. For the purposes of this subsection, the offender shall
remain under the court's jurisdiction until the ((defendant)) offender
has satisfied support obligations under the superior court or administrative
order but not longer than a maximum term of twenty-five years following the
offender's release from total confinement or twenty-five years subsequent to
the entry of the judgment and sentence, whichever period is longer. The court
may not reduce the total amount of restitution ordered because the offender may
lack the ability to pay the total amount. The department shall supervise the
offender's compliance with the restitution ordered under this subsection.
(((4)))
(7) In addition to any sentence that may be imposed, ((a defendant))
an offender who has been found guilty of an offense involving fraud or
other deceptive practice or an organization which has been found guilty of any
such offense may be ordered by the sentencing court to give notice of the
conviction to the class of persons or to the sector of the public affected by
the conviction or financially interested in the subject matter of the offense
by mail, by advertising in designated areas or through designated media, or by
other appropriate means.
(((5)))
(8) This section does not limit civil remedies or defenses available to
the victim or ((defendant)) offender including support
enforcement remedies for support ordered under subsection (((3))) (6)
of this section for a child born as a result of a rape of a child victim. The
court shall identify in the judgment and sentence the victim or victims
entitled to restitution and what amount is due each victim. The state or
victim may enforce the court-ordered restitution in the same manner as a
judgment in a civil action. Restitution collected through civil enforcement
must be paid through the registry of the court and must be distributed
proportionately according to each victim's loss when there is more than one
victim.
Sec.
33. RCW
9.94A.142 and 1997 c 121 s 4 and 1997 c 52 s 2 are each reenacted and amended
to read as follows:
This
section applies to offenses committed after July 1, 1985.
(1)
When restitution is ordered, the court shall determine the amount of
restitution due at the sentencing hearing or within one hundred eighty days
except as provided in subsection (((4))) (7) of this section.
The court may continue the hearing beyond the one hundred eighty days for good
cause. The court shall then set a minimum monthly payment that the offender is
required to make towards the restitution that is ordered. The court should take
into consideration the total amount of the restitution owed, the offender's
present, past, and future ability to pay, as well as any assets that the
offender may have.
(2)
During the period of supervision, the community corrections officer may examine
the offender to determine if there has been a change in circumstances that
warrants an amendment of the monthly payment schedule. The community
corrections officer may recommend a change to the schedule of payment and shall
inform the court of the recommended change and the reasons for the change. The
sentencing court may then reset the monthly minimum payments based on the
report from the community corrections officer of the change in circumstances.
(3)
Except as provided in subsection (((3))) (6) of this section,
restitution ordered by a court pursuant to a criminal conviction shall be based
on easily ascertainable damages for injury to or loss of property, actual
expenses incurred for treatment for injury to persons, and lost wages resulting
from injury. Restitution shall not include reimbursement for damages for
mental anguish, pain and suffering, or other intangible losses, but may include
the costs of counseling reasonably related to the offense. The amount of
restitution shall not exceed double the amount of the offender's gain or the
victim's loss from the commission of the crime.
(4)
For the purposes of this section, the offender shall remain under the court's
jurisdiction for a term of ten years following the offender's release from
total confinement or ten years subsequent to the entry of the judgment and
sentence, whichever period is longer. Prior to the expiration of the initial
ten-year period, the superior court may extend jurisdiction under the criminal
judgment an additional ten years for payment of restitution. The portion of
the sentence concerning restitution may be modified as to amount, terms and
conditions during either the initial ten-year period or subsequent ten-year
period if the criminal judgment is extended, regardless of the expiration of
the offender's term of community supervision and regardless of the statutory
maximum sentence for the crime. The court may not reduce the total
amount of restitution ordered because the offender may lack the ability to pay
the total amount. The offender's compliance with the restitution shall be
supervised by the department ((of corrections)) for ten years following
the entry of the judgment and sentence or ten years following the offender's
release from total confinement. If jurisdiction under the criminal judgment is
extended, the department is not responsible for supervision of the offender
during the subsequent period.
(((2)))
(5) Restitution shall be ordered whenever the offender is convicted of
an offense which results in injury to any person or damage to or loss of
property or as provided in subsection (((3))) (6) of this section
unless extraordinary circumstances exist which make restitution inappropriate
in the court's judgment and the court sets forth such circumstances in the record.
In addition, restitution shall be ordered to pay for an injury, loss, or damage
if the offender pleads guilty to a lesser offense or fewer offenses and agrees
with the prosecutor's recommendation that the offender be required to pay
restitution to a victim of an offense or offenses which are not prosecuted
pursuant to a plea agreement.
(((3)))
(6) Restitution for the crime of rape of a child in the first, second,
or third degree, in which the victim becomes pregnant, shall include: (a) All
of the victim's medical expenses that are associated with the rape and
resulting pregnancy; and (b) child support for any child born as a result of
the rape if child support is ordered pursuant to a civil superior court or
administrative order for support for that child. The clerk must forward any
restitution payments made on behalf of the victim's child to the Washington
state child support registry under chapter 26.23 RCW. Identifying information
about the victim and child shall not be included in the order. The ((defendant))
offender shall receive a credit against any obligation owing under the
administrative or superior court order for support of the victim's child. For
the purposes of this subsection, the offender shall remain under the court's
jurisdiction until the ((defendant)) offender has satisfied
support obligations under the superior court or administrative order but not
longer than a maximum term of twenty-five years following the offender's
release from total confinement or twenty-five years subsequent to the entry of
the judgment and sentence, whichever period is longer. The court may not reduce
the total amount of restitution ordered because the offender may lack the
ability to pay the total amount. The department shall supervise the offender's
compliance with the restitution ordered under this subsection.
(((4)))
(7) Regardless of the provisions of subsections (1)((, (2), and (3)))
through (6) of this section, the court shall order restitution in all
cases where the victim is entitled to benefits under the crime victims'
compensation act, chapter 7.68 RCW. If the court does not order restitution
and the victim of the crime has been determined to be entitled to benefits
under the crime victims' compensation act, the department of labor and
industries, as administrator of the crime victims' compensation program, may
petition the court within one year of entry of the judgment and sentence for
entry of a restitution order. Upon receipt of a petition from the department
of labor and industries, the court shall hold a restitution hearing and shall
enter a restitution order.
(((5)))
(8) In addition to any sentence that may be imposed, ((a defendant))
an offender who has been found guilty of an offense involving fraud or
other deceptive practice or an organization which has been found guilty of any
such offense may be ordered by the sentencing court to give notice of the
conviction to the class of persons or to the sector of the public affected by
the conviction or financially interested in the subject matter of the offense
by mail, by advertising in designated areas or through designated media, or by other
appropriate means.
(((6)))
(9) This section does not limit civil remedies or defenses available to
the victim, survivors of the victim, or ((defendant)) offender
including support enforcement remedies for support ordered under subsection (((3)))
(6) of this section for a child born as a result of a rape of a child
victim. The court shall identify in the judgment and sentence the victim or
victims entitled to restitution and what amount is due each victim. The state
or victim may enforce the court-ordered restitution in the same manner as a
judgment in a civil action. Restitution collected through civil enforcement
must be paid through the registry of the court and must be distributed
proportionately according to each victim's loss when there is more than one
victim.
(((7)
This section shall apply to offenses committed after July 1, 1985.))
PART
VII
Sex
Offender Treatment
NEW
SECTION. Sec. 34. SEX
OFFENDER TREATMENT. (1) When an offender commits any felony sex offense on or
after July 1, 1987, and on or before July 1, 1990, and is sentenced to a term
of confinement of more than one year but less than six years, the sentencing
court may, on its own motion or on the motion of the offender or the state,
request the department to evaluate whether the offender is amenable to
treatment and the department may place the offender in a treatment program
within a correctional facility operated by the department.
Except
for an offender who has been convicted of a violation of RCW 9A.44.040 or
9A.44.050, if the offender completes the treatment program before the
expiration of his or her term of confinement, the department may request the
court to convert the balance of confinement to community supervision and to
place conditions on the offender including crime-related prohibitions and
requirements that the offender perform any one or more of the following:
(a)
Devote time to a specific employment or occupation;
(b)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer prior to any change in the offender's address or
employment;
(c)
Report as directed to the court and a community corrections officer;
(d)
Undergo available outpatient treatment.
If
the offender violates any of the terms of his or her community supervision, the
court may order the offender to serve out the balance of his or her community
supervision term in confinement in the custody of the department.
Nothing
in this subsection shall confer eligibility for such programs for offenders
convicted and sentenced for a sex offense committed prior to July 1, 1987.
(2)
Offenders convicted and sentenced for a sex offense committed prior to July 1,
1987, may, subject to available funds, request an evaluation by the department
to determine whether they are amenable to treatment. If the offender is
determined to be amenable to treatment, the offender may request placement in a
treatment program within a correctional facility operated by the department.
Placement in such treatment program is subject to available funds.
NEW
SECTION. Sec. 35.
TRANSITION AND RELAPSE PREVENTION STRATEGIES. Within the funds available for
this purpose, the department shall develop and monitor transition and relapse
prevention strategies, including risk assessment and release plans, to reduce
risk to the community after sex offenders' terms of confinement in the custody
of the department.
NEW
SECTION. Sec. 36. SEX
OFFENDER TREATMENT. (1) Sex offender examinations and treatment ordered as a
special condition of community placement or community custody under this
chapter shall be conducted only by sex offender treatment providers certified
by the department of health under chapter 18.155 RCW unless the court or the
department 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) the treatment provider is employed by the
department; or (c)(i) no certified providers are available to provide treatment
within a reasonable geographic distance of the offender's home, as determined
in rules adopted by the secretary; and (ii) the evaluation and treatment plan
comply with the rules adopted by the department of health. A treatment
provider selected by an offender under (c) of this subsection, who is not
certified by the department of health shall consult with a certified provider
during the offender's period of treatment to ensure compliance with the rules
adopted by the department of health. The frequency and content of the consultation
shall be based on the recommendation of the certified provider.
(2)
A sex offender's failure to participate in treatment required as a condition of
community placement or community custody is a violation that will not be
excused on the basis that no treatment provider was located within a reasonable
geographic distance of the offender's home.
Sec.
37. RCW
18.155.010 and 1990 c 3 s 801 are each amended to read as follows:
The
legislature finds that sex offender therapists who examine and treat sex
offenders pursuant to the special sexual offender sentencing alternative under
((RCW 9.94A.120(7)(a))) section 20 of this act and who may treat
juvenile sex offenders pursuant to RCW 13.40.160, play a vital role in
protecting the public from sex offenders who remain in the community following
conviction. The legislature finds that the qualifications, practices,
techniques, and effectiveness of sex offender treatment providers vary widely
and that the court's ability to effectively determine the appropriateness of
granting the sentencing alternative and monitoring the offender to ensure
continued protection of the community is undermined by a lack of regulated
practices. The legislature recognizes the right of sex offender therapists to
practice, consistent with the paramount requirements of public safety. Public
safety is best served by regulating sex offender therapists whose clients are
being evaluated and being treated pursuant to ((RCW 9.94A.120(7)(a))) section
20 of this act and RCW 13.40.160. This chapter shall be construed
to require only those sex offender therapists who examine and treat sex
offenders pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act
and RCW 13.40.160 to obtain a sexual offender treatment certification as
provided in this chapter.
Sec.
38. RCW
18.155.020 and 1990 c 3 s 802 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter:
(1)
"Certified sex offender treatment provider" means a licensed,
certified, or registered health professional who is certified to examine and
treat sex offenders pursuant to ((RCW 9.94A.120(7)(a))) section 20 of
this act and RCW 13.40.160.
(2)
"Department" means the department of health.
(3)
"Secretary" means the secretary of health.
(4)
"Sex offender treatment provider" means a person who counsels or
treats sex offenders accused of or convicted of a sex offense as defined by RCW
9.94A.030.
Sec.
39. RCW
18.155.030 and 1990 c 3 s 803 are each amended to read as follows:
(1)
No person shall represent himself or herself as a certified sex offender
treatment provider without first applying for and receiving a certificate
pursuant to this chapter.
(2)
Only a certified sex offender treatment provider may perform or provide the
following services:
(a)
Evaluations conducted for the purposes of and pursuant to ((RCW
9.94A.120(7)(a))) section 20 of this act and RCW 13.40.160;
(b)
Treatment of convicted sex offenders who are sentenced and ordered into
treatment pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act
and adjudicated juvenile sex offenders who are ordered into treatment pursuant
to RCW 13.40.160.
PART
VIII
DASA
Licensing Requirements
Sec.
40. RCW
46.61.524 and 1991 c 348 s 2 are each amended to read as follows:
(1)
A person convicted under RCW 46.61.520(1)(a) or 46.61.522(1)(b) shall, as a
condition of community supervision imposed under RCW 9.94A.383 or community
placement imposed under ((RCW 9.94A.120(8))) section 19 of this act,
complete a diagnostic evaluation by an alcohol or drug dependency agency
approved by the department of social and health services or a qualified probation
department, as defined under RCW 46.61.516 that has been approved by the
department of social and health services. This report shall be forwarded to
the department of licensing. If the person is found to have an alcohol or drug
problem that requires treatment, the person shall complete treatment in a
program approved by the department of social and health services under chapter
70.96A RCW. If the person is found not to have an alcohol or drug problem that
requires treatment, he or she shall complete a course in an information school
approved by the department of social and health services under chapter 70.96A
RCW. The convicted person shall pay all costs for any evaluation, education,
or treatment required by this section, unless the person is eligible for an
existing program offered or approved by the department of social and health
services. Nothing in chapter 348, Laws of 1991 requires the addition of new
treatment or assessment facilities nor affects the department of social and
health services use of existing programs and facilities authorized by law.
(2)
As provided for under RCW 46.20.285, the department shall revoke the license,
permit to drive, or a nonresident privilege of a person convicted of vehicular
homicide under RCW 46.61.520 or vehicular assault under RCW 46.61.522. The
department shall determine the eligibility of a person convicted of vehicular
homicide under RCW 46.61.520(1)(a) or vehicular assault under RCW
46.61.522(1)(b) to receive a license based upon the report provided by the
designated alcoholism treatment facility or probation department, and shall
deny reinstatement until satisfactory progress in an approved program has been
established and the person is otherwise qualified.
PART
IX
Miscellaneous
Sec.
41. RCW
9.94A.040 and 1999 c 352 s 1 and 1999 c 196 s 3 are each reenacted and amended
to read as follows:
(1)
A sentencing guidelines commission is established as an agency of state
government.
(2)
The legislature finds that the commission, having accomplished its original
statutory directive to implement this chapter, and having expertise in
sentencing practice and policies, shall:
(a)
Evaluate state sentencing policy, to include whether the sentencing ranges and
standards are consistent with and further:
(i)
The purposes of this chapter as defined in RCW 9.94A.010; and
(ii)
The intent of the legislature to emphasize confinement for the violent offender
and alternatives to confinement for the nonviolent offender.
The
commission shall provide the governor and the legislature with its evaluation
and recommendations under this subsection not later than December 1, 1996, and
every two years thereafter;
(b)
Recommend to the legislature revisions or modifications to the standard
sentence ranges, state sentencing policy, prosecuting standards, and other
standards. If implementation of the revisions or modifications would result in
exceeding the capacity of correctional facilities, then the commission shall
accompany its recommendation with an additional list of standard sentence
ranges which are consistent with correction capacity;
(c)
Study the existing criminal code and from time to time make recommendations to
the legislature for modification;
(d)(i)
Serve as a clearinghouse and information center for the collection,
preparation, analysis, and dissemination of information on state and local
adult and juvenile sentencing practices; (ii) develop and maintain a
computerized adult and juvenile sentencing information system by individual
superior court judge consisting of offender, offense, history, and sentence
information entered from judgment and sentence forms for all adult felons; and
(iii) conduct ongoing research regarding adult and juvenile sentencing
guidelines, use of total confinement and alternatives to total confinement,
plea bargaining, and other matters relating to the improvement of the adult
criminal justice system and the juvenile justice system;
(e)
Assume the powers and duties of the juvenile disposition standards commission
after June 30, 1996;
(f)
Evaluate the effectiveness of existing disposition standards and related
statutes in implementing policies set forth in RCW 13.40.010 generally,
specifically review the guidelines relating to the confinement of minor and
first-time offenders as well as the use of diversion, and review the
application of current and proposed juvenile sentencing standards and
guidelines for potential adverse impacts on the sentencing outcomes of racial
and ethnic minority youth;
(g)
Solicit the comments and suggestions of the juvenile justice community
concerning disposition standards, and make recommendations to the legislature
regarding revisions or modifications of the standards. The evaluations shall be
submitted to the legislature on December 1 of each odd-numbered year. The
department of social and health services shall provide the commission with
available data concerning the implementation of the disposition standards and
related statutes and their effect on the performance of the department's
responsibilities relating to juvenile offenders, and with recommendations for
modification of the disposition standards. The office of the administrator for
the courts shall provide the commission with available data on diversion and
dispositions of juvenile offenders under chapter 13.40 RCW; and
(h)
Not later than December 1, 1997, and at least every two years thereafter, based
on available information, report to the governor and the legislature on:
(i)
Racial disproportionality in juvenile and adult sentencing;
(ii)
The capacity of state and local juvenile and adult facilities and resources;
and
(iii)
Recidivism information on adult and juvenile offenders.
(3)
Each of the commission's recommended standard sentence ranges shall include one
or more of the following: Total confinement, partial confinement, community
supervision, community service, and a fine.
(4)
The standard sentence ranges of total and partial confinement under this
chapter are subject to the following limitations:
(a)
If the maximum term in the range is one year or less, the minimum term in the
range shall be no less than one-third of the maximum term in the range, except
that if the maximum term in the range is ninety days or less, the minimum term
may be less than one-third of the maximum;
(b)
If the maximum term in the range is greater than one year, the minimum term in
the range shall be no less than seventy-five percent of the maximum term in the
range, except that for murder in the second degree in seriousness level XIV
under RCW 9.94A.310, the minimum term in the range shall be no less than fifty
percent of the maximum term in the range; and
(c)
The maximum term of confinement in a range may not exceed the statutory maximum
for the crime as provided in RCW 9A.20.021.
(5)(a)
Not later than December 31, 1999, the commission shall propose to the
legislature the initial community custody ranges to be included in sentences
under ((RCW 9.94A.120(11))) section 25 of this act for crimes
committed on or after July 1, 2000. Not later than December 31 of each year,
the commission may propose modifications to the ranges. The ranges shall be
based on the principles in RCW 9.94A.010, and shall take into account the funds
available to the department for community custody. The minimum term in each
range shall not be less than one-half of the maximum term.
(b)
The legislature may, by enactment of a legislative bill, adopt or modify the
community custody ranges proposed by the commission. If the legislature fails
to adopt or modify the initial ranges in its next regular session after they
are proposed, the proposed ranges shall take effect without legislative
approval for crimes committed on or after July 1, 2000.
(c)
When the commission proposes modifications to ranges pursuant to this
subsection, the legislature may, by enactment of a bill, adopt or modify the
ranges proposed by the commission for crimes committed on or after July 1 of
the year after they were proposed. Unless the legislature adopts or modifies
the commission's proposal in its next regular session, the proposed ranges
shall not take effect.
(6)
The commission shall exercise its duties under this section in conformity with
chapter 34.05 RCW.
Sec.
42. RCW
9.94A.395 and 1993 c 144 s 5 are each amended to read as follows:
(1)
The sentencing court or the court's successor shall consider recommendations
from the indeterminate sentence review board for resentencing ((defendants))
offenders convicted of murder if the indeterminate sentence review board
advises the court of the following:
(a)
The ((defendant)) offender was convicted for a murder committed
prior to ((the effective date of RCW 9.94A.390(1)(h))) July 23, 1989;
(b)
RCW 9.94A.390(1)(h), if effective when the ((defendant)) offender
committed the crime, would have provided a basis for the ((defendant)) offender
to seek a mitigated sentence; and
(c)
Upon review of the sentence, the indeterminate sentence review board believes
that the sentencing court, when originally sentencing the ((defendant)) offender
for the murder, did not consider evidence that the victim subjected the ((defendant))
offender or the ((defendant's)) offender's children to a
continuing pattern of sexual or physical abuse and the murder was in response
to that abuse.
(2)
The court may resentence the ((defendant)) offender in light of
RCW 9.94A.390(1)(h) and impose an exceptional mitigating sentence pursuant to
that provision. Prior to resentencing, the court shall consider any other
recommendation and evidence concerning the issue of whether the ((defendant))
offender committed the crime in response to abuse.
(3)
The court shall render its decision regarding reducing the inmate's sentence no
later than six months after receipt of the indeterminate sentence review
board's recommendation to reduce the sentence imposed.
NEW
SECTION. Sec. 43. Part
headings and section captions used in this act do not constitute any part of
the law.
NEW
SECTION. Sec. 44.
Sections 3, 6, 7, 18 through 20, 22 through 26, and 34 through 36 of this act
are each added to chapter 9.94A RCW.
NEW
SECTION. Sec. 45. If
any amendments to RCW 9.94A.120, or any sections enacted or affected by this
act, are enacted in a 2000 legislative session that do not take cognizance of
this act, the code reviser shall prepare a bill for introduction in the 2001
legislative session that incorporates any such amendments into the
reorganization adopted by this act and corrects any incorrect cross-references.
NEW
SECTION. Sec. 46.
Sections 1 through 42 of this act take effect July 1, 2001.
NEW SECTION. Sec. 47. 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.
