BILL REQ. #:  H-3247.2 

Prefiled 1/3/2006. Read first time 01/09/2006.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to electronic monitoring of sex offenders; amending RCW 9.94A.712, 9.94A.712, 72.09.340, and 72.09.340; providing an effective date; providing an expiration date; and declaring an emergency.

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

Sec. 1   RCW 9.94A.712 and 2005 c 436 s 2 are each amended to read as follows:
     (1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
     (a) Is convicted of:
     (i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
     (ii) Any of the following offenses with a finding of sexual motivation: 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; or
     (iii) An attempt to commit any crime listed in this subsection (1)(a);
committed on or after September 1, 2001; or
     (b) Has a prior conviction for an offense listed in RCW 9.94A.030(33)(b), and is convicted of any sex offense which was committed after September 1, 2001.
     For purposes of this subsection (1)(b), failure to register is not a sex offense.
     (2) An offender convicted of rape of a child in the first or second degree or child molestation in the first degree who was seventeen years of age or younger at the time of the offense shall not be sentenced under this section.
     (3) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
     (4) A person sentenced under subsection (3) of this section shall serve the sentence in a facility or institution operated, or utilized under contract, by the state.
     (5) When a court sentences a person to the custody of the department under this section, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence.
     (6)(a)(i) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). 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 and the board shall enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and 9.95.430.
     (ii) If the offense that caused the offender to be sentenced under this section was an offense listed in subsection (1)(a) of this section, the court shall require as a condition of community custody that the offender submit to electronic monitoring using a global positioning system or similar tracking system. The system must actively monitor, identify, and timely report the offender's location. The court may not waive the condition in this subsection (6)(a)(ii).
     (iii) If the offense that caused the offender to be sentenced under this section was an offense listed in subsection (1)(a) of this section and the victim of the offense was under eighteen years of age at the time of the offense, the court shall, as a condition of community custody, prohibit the offender from residing in a community protection zone.
     (b) As part of any sentence under this section, the court shall also require the offender to comply with any conditions imposed by the board under RCW 9.94A.713 and 9.95.420 through 9.95.435.

Sec. 2   RCW 9.94A.712 and 2004 c 176 s 3 are each amended to read as follows:
     (1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
     (a) Is convicted of:
     (i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
     (ii) Any of the following offenses with a finding of sexual motivation: 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; or
     (iii) An attempt to commit any crime listed in this subsection (1)(a);
committed on or after September 1, 2001; or
     (b) Has a prior conviction for an offense listed in RCW 9.94A.030(32)(b), and is convicted of any sex offense which was committed after September 1, 2001.
     For purposes of this subsection (1)(b), failure to register is not a sex offense.
     (2) An offender convicted of rape of a child in the first or second degree or child molestation in the first degree who was seventeen years of age or younger at the time of the offense shall not be sentenced under this section.
     (3) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
     (4) A person sentenced under subsection (3) of this section shall serve the sentence in a facility or institution operated, or utilized under contract, by the state.
     (5) When a court sentences a person to the custody of the department under this section, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence.
     (6)(a)(i) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). 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 and the board shall enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and 9.95.430.
     (ii) If the offense that caused the offender to be sentenced under this section was an offense listed in subsection (1)(a) of this section, the court shall require as a condition of community custody that the offender submit to electronic monitoring using a global positioning system or similar tracking system. The system must actively monitor, identify, and timely report the offender's location. The court may not waive the condition in this subsection (6)(a)(ii).
     (b) As part of any sentence under this section, the court shall also require the offender to comply with any conditions imposed by the board under RCW 9.94A.713 and 9.95.420 through 9.95.435.

Sec. 3   RCW 72.09.340 and 2005 c 436 s 3 are each amended to read as follows:
     (1) In making all discretionary decisions regarding release plans for and supervision of sex offenders, the department shall set priorities and make decisions based on an assessment of public safety risks.
     (2) The department shall, no later than September 1, 1996, implement a policy governing the department's evaluation and approval of release plans for sex offenders. The policy shall include, at a minimum, a formal process by which victims, witnesses, and other interested people may provide information and comments to the department on potential safety risks to specific individuals or classes of individuals posed by a specific sex offender. The department shall make all reasonable efforts to publicize the availability of this process through currently existing mechanisms and shall seek the assistance of courts, prosecutors, law enforcement, and victims' advocacy groups in doing so. Notice of an offender's proposed residence shall be provided to all people registered to receive notice of an offender's release under RCW 9.94A.612(2), except that in no case may this notification requirement be construed to require an extension of an offender's release date.
     (3)(a) For any offender convicted of a felony sex offense against a minor victim after June 6, 1996, the department shall not approve a residence location if the proposed residence: (i) Includes a minor victim or child of similar age or circumstance as a previous victim who the department determines may be put at substantial risk of harm by the offender's residence in the household; or (ii) is within close proximity of the current residence of a minor victim, unless the whereabouts of the minor victim cannot be determined or unless such a restriction would impede family reunification efforts ordered by the court or directed by the department of social and health services. The department is further authorized to reject a residence location if the proposed residence is within close proximity to schools, child care centers, playgrounds, or other grounds or facilities where children of similar age or circumstance as a previous victim are present who the department determines may be put at substantial risk of harm by the sex offender's residence at that location.
     (b) In addition, for any offender prohibited from living in a community protection zone under RCW 9.94A.712(6)(a)(ii), the department may not approve a residence location if the proposed residence is in a community protection zone.
     (4) When the department requires supervised visitation as a term or condition of a sex offender's community placement under RCW 9.94A.700(6), the department shall, prior to approving a supervisor, consider the following:
     (a) The relationships between the proposed supervisor, the offender, and the minor;
     (b) The proposed supervisor's acknowledgment and understanding of the offender's prior criminal conduct, general knowledge of the dynamics of child sexual abuse, and willingness and ability to protect the minor from the potential risks posed by contact with the offender; and
     (c) Recommendations made by the department of social and health services about the best interests of the child.
     (5) If the department is required to electronically monitor an offender convicted of an offense listed in RCW 9.94A.712(1)(a) committed prior to the effective date of this section, or if the department chooses to impose electronic monitoring on such an offender administratively, the department shall electronically monitor the offender utilizing a global positioning system, or similar tracking system, that actively monitors, identifies, and timely reports the offender's location.

Sec. 4   RCW 72.09.340 and 1996 c 215 s 3 are each amended to read as follows:
     (1) In making all discretionary decisions regarding release plans for and supervision of sex offenders, the department shall set priorities and make decisions based on an assessment of public safety risks.
     (2) The department shall, no later than September 1, 1996, implement a policy governing the department's evaluation and approval of release plans for sex offenders. The policy shall include, at a minimum, a formal process by which victims, witnesses, and other interested people may provide information and comments to the department on potential safety risks to specific individuals or classes of individuals posed by a specific sex offender. The department shall make all reasonable efforts to publicize the availability of this process through currently existing mechanisms and shall seek the assistance of courts, prosecutors, law enforcement, and victims' advocacy groups in doing so. Notice of an offender's proposed residence shall be provided to all people registered to receive notice of an offender's release under RCW 9.94A.612(2), except that in no case may this notification requirement be construed to require an extension of an offender's release date.
     (3) For any offender convicted of a felony sex offense against a minor victim after June 6, 1996, the department shall not approve a residence location if the proposed residence: (a) Includes a minor victim or child of similar age or circumstance as a previous victim who the department determines may be put at substantial risk of harm by the offender's residence in the household; or (b) is within close proximity of the current residence of a minor victim, unless the whereabouts of the minor victim cannot be determined or unless such a restriction would impede family reunification efforts ordered by the court or directed by the department of social and health services. The department is further authorized to reject a residence location if the proposed residence is within close proximity to schools, child care centers, playgrounds, or other grounds or facilities where children of similar age or circumstance as a previous victim are present who the department determines may be put at substantial risk of harm by the sex offender's residence at that location.
     (4) When the department requires supervised visitation as a term or condition of a sex offender's community placement under RCW 9.94A.700(6), the department shall, prior to approving a supervisor, consider the following:
     (a) The relationships between the proposed supervisor, the offender, and the minor;
     (b) The proposed supervisor's acknowledgment and understanding of the offender's prior criminal conduct, general knowledge of the dynamics of child sexual abuse, and willingness and ability to protect the minor from the potential risks posed by contact with the offender; and
     (c) Recommendations made by the department of social and health services about the best interests of the child.
     (5) If the department is required to electronically monitor an offender convicted of an offense listed in RCW 9.94A.712(1)(a) committed prior to the effective date of this section, or if the department chooses to impose electronic monitoring on such an offender administratively, the department shall electronically monitor the offender utilizing a global positioning system, or similar tracking system, that actively monitors, identifies, and timely reports the offender's location.

NEW SECTION.  Sec. 5   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.

NEW SECTION.  Sec. 6   (1) Sections 1 and 3 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.
     (2) Sections 2 and 4 of this act take effect July 1, 2006.

NEW SECTION.  Sec. 7   Sections 1 and 3 of this act expire July 1, 2006.