BILL REQ. #:  H-1877.2 

Read first time 02/25/2003.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to ensuring that offender populations do not exceed prison capacity; amending RCW 9.94A.728; reenacting and amending RCW 9.94A.728; adding new sections to chapter 43.88C RCW; adding new sections to chapter 9.94A RCW; creating a new section; providing an effective date; and providing an expiration date.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that:
     (a) Some of the primary purposes of the criminal justice system are to:
     (i) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;
     (ii) Make frugal use of the state's and local government's resources by concentrating resources on violent offenders and sex offenders who pose the greatest risk to our communities;
     (iii) Promote respect for the law by providing punishment that is just;
     (iv) Protect the public;
     (v) Offer the offender an opportunity to improve himself or herself; and
     (vi) Reduce the risk of reoffending by offenders in the community;
     (b) Recent changes in the criminal laws have led to disproportionately long terms of confinement for certain nonviolent offenders and prison overcrowding; and
     (c) Prison overcrowding:
     (i) Results in inefficient expenditures of public funds by concentrating too many resources on low risk offenders, and insufficient resources on high risk offenders;
     (ii) Results in unjust punishment for offenders because of unsafe conditions within prisons;
     (iii) Endangers the public by preventing the optimal concentration of criminal justice resources on high risk offenders;
     (iv) Limits the educational, vocational, and treatment opportunities available to an offender and therefore the offender's ability to improve himself or herself; and
     (v) Increases the risk of reoffending by offenders in the community by decreasing services within the prison environment that can reduce the risk of recidivism.
     (2) It is therefore the intent of the legislature to:
     (a) Promote the primary purposes of the criminal justice system and focus resources on sex offenders and violent offenders who pose the greatest risk to our communities by reducing offender populations when such populations exceed the maximum operational capacity of facilities operated by the department of corrections; and
     (b) Accomplish the reduction by concentrating solely on offenders convicted of certain nonviolent offenses who are close to the end of their sentences.

NEW SECTION.  Sec. 2   A new section is added to chapter 43.88C RCW to read as follows:
     (1) The caseload forecast council, in consultation with the department of corrections, the sentencing guidelines commission, and the indeterminate sentence review board, shall, by rule, establish a methodology for determining the maximum statewide operating capacity for correctional facilities operated by the department of corrections. The methodology must take into account methods for increasing facility capacity without making improvements or additions to infrastructure.
     (2) For purposes of this section, "maximum statewide operating capacity for correctional facilities operated by the department of corrections" means the number of offenders that all of the correctional facilities operated by the department of corrections can house at a given time based on space, staff, existing programs, and services.
     (3) The council shall complete the methodology and report it to the legislature no later than December 1, 2003.

NEW SECTION.  Sec. 3   A new section is added to chapter 43.88C RCW to read as follows:
     (1) Using the methodology developed under section 2 of this act, the caseload forecast council shall determine the maximum statewide operating capacity for correctional facilities operated by the department of corrections for the fiscal year beginning July 1, 2004, and annually thereafter. The council shall report its determination of the maximum operating capacity to the legislature and the sentencing guidelines commission no later than July 8th. The report must include a copy of the methodology developed under section 2 of this act and a description of how the council used the methodology to make its determination.
     (2) If a caseload forecast prepared under RCW 43.88C.020 indicates that the number of offenders incarcerated in correctional facilities operated by the department of corrections will exceed the most recent determination of the maximum statewide operating capacity for correctional facilities operated by the department of corrections determined under subsection (1) of this section, the council shall notify the sentencing guidelines commission and the department of corrections within seven days of adopting the forecast.
     (3) The notification under subsection (2) of this section must include:
     (a) A copy of the council's most recent determination of the maximum statewide operating capacity for correctional facilities operated by the department of corrections;
     (b) A copy of the forecast indicating that the capacity will be exceeded; and
     (c) The estimated number of offenders currently incarcerated by which the offender population must be reduced in order for the capacity not to be exceeded.
     (4) The council's findings and determinations under this section are not subject to appeal under chapter 34.05 RCW.

NEW SECTION.  Sec. 4   A new section is added to chapter 9.94A RCW to read as follows:
     (1) Upon receipt of the notification from the caseload forecast council under section 3(2) of this act, the commission shall certify whether the information included in the council's notification was correctly determined.
     (2) The commission shall transmit a copy of its certification to the department and the council within fourteen days of receipt of notification from the council.
     (3) If the commission denies certification, it shall inform the council of its decision and the reasons therefor in writing within fourteen days of receipt of notification from the council. The council may revise the information in the notification and resubmit it to the commission for approval under this section.
     (4) The commission's certification decision is not subject to appeal under chapter 34.05 RCW.

NEW SECTION.  Sec. 5   A new section is added to chapter 9.94A RCW to read as follows:
     (1) The department shall perform a risk assessment of every offender who: (a) Was committed to a correctional facility operated by the department for an offense that is not a violent offense, sex offense, offense sentenced under RCW 9.94A.660, or crime against a person as defined in this chapter, and (b) has a criminal history that does not include a violent offense, sex offense, or crime against a person as defined in this chapter. The department shall classify each offender in one of at least four categories between highest and lowest risk.
     (2) Within fourteen days of the receipt of certification from the commission under section 4(2) of this act, the department shall develop a list of qualified offenders. The number of qualified offenders on the list may not exceed the estimate developed by the caseload forecast council under section 3(3)(c) of this act. If the number of qualified offenders committed to correctional facilities operated by the department exceeds the estimate, the department shall give priority to offenders whose release dates are closest in time to the date the certification from the commission under section 4(2) of this act was received.
     (3) Within fourteen days of the development of the list of qualified offenders under subsection (2) of this section, the department shall release the offenders on the list.
     (4) For purposes of this act, "qualified offender" means an offender:
     (a) Committed to a correctional facility operated by the department for an offense that is not a violent offense, sex offense, offense sentenced under RCW 9.94A.660, or crime against a person as defined in this chapter;
     (b) Who has a criminal history that does not include a violent offense, sex offense, or crime against a person as defined in this chapter; and
     (c) Who is classified under subsection (1) of this section in any risk category other than the two highest categories.
     (5) The classification of offenders under subsection (1) of this section, the development of the list under subsection (2) of this section, and the release of offenders under subsection (3) of this section:
     (a) Are not subject to appeal under chapter 34.05 RCW;
     (b) Do not create a vested right to early release for any offender; and
     (c) May not be the basis for any civil or criminal action against the state, the department, or any state employee.

Sec. 6   RCW 9.94A.728 and 2002 c 50 s 2 are each 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 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 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 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, 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 release time. 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.510 (3) or (4), or both, shall not receive any good time credits or earned 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 release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned 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 persons where it is determined in accordance with RCW 9.94A.602 that the 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 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.411(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;
     (c) The department shall, as a part of its program for release to the community in lieu of earned release, require the offender to propose a release plan that includes an approved residence and living arrangement. All offenders with community placement or community custody terms eligible for release to community custody status in lieu of earned release shall provide an approved residence and living arrangement prior to release to the community;
     (d) The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender's release plan, including proposed residence location and living arrangements, may violate the conditions of the sentence or conditions of supervision, place the offender at risk to violate the conditions of the sentence, place the offender at risk to reoffend, or present a risk to victim safety or community safety. The department's authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement;
     (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 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.
     (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 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.870; and
     (10) An offender may be released by the department under section 5 of this act. An offender released under this subsection shall be on community custody status for the difference between the date of release under section 5 of this act and the expiration of the offender's term of confinement imposed by the court, subject to conditions imposed by the department. For an offender released from custody imposed because of a conviction for an offense under chapter 69.50 or 69.52 RCW, the community custody must include affirmative conditions relating to drug treatment.
     Notwithstanding any other provisions of this section, an offender sentenced for a felony crime listed in RCW 9.94A.540 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.540, however persistent offenders are not eligible for extraordinary medical placement.

Sec. 7   RCW 9.94A.728 and 2002 c 290 s 21 and 2002 c 50 s 2 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 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 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 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, 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 release time. 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.533 (3) or (4), or both, shall not receive any good time credits or earned 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 release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned 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 persons where it is determined in accordance with RCW 9.94A.602 that the 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 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.411(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;
     (c) The department shall, as a part of its program for release to the community in lieu of earned release, require the offender to propose a release plan that includes an approved residence and living arrangement. All offenders with community placement or community custody terms eligible for release to community custody status in lieu of earned release shall provide an approved residence and living arrangement prior to release to the community;
     (d) The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender's release plan, including proposed residence location and living arrangements, may violate the conditions of the sentence or conditions of supervision, place the offender at risk to violate the conditions of the sentence, place the offender at risk to reoffend, or present a risk to victim safety or community safety. The department's authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement;
     (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 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.
     (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 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.870; and
     (10) An offender may be released by the department under section 5 of this act. An offender released under this subsection shall be on community custody status for the difference between the date of release under section 5 of this act and the expiration of the offender's term of confinement imposed by the court, subject to conditions imposed by the department. For an offender released from custody imposed because of a conviction for an offense under chapter 69.50 or 69.52 RCW, the community custody must include affirmative conditions relating to drug treatment.
     Notwithstanding any other provisions of this section, an offender sentenced for a felony crime listed in RCW 9.94A.540 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.540, however persistent offenders are not eligible for extraordinary medical placement.

NEW SECTION.  Sec. 8   Section 6 of this act expires July 1, 2004.

NEW SECTION.  Sec. 9   Section 7 of this act takes effect July 1, 2004.