HOUSE BILL REPORT

ESSB 5288

As Passed House - Amended:

April 21, 2009

Title: An act relating to the supervision of offenders.

Brief Description: Changing provisions regarding supervision of offenders.

Sponsors: Senate Committee on Human Services & Corrections (originally sponsored by Senators Hargrove, Stevens, Regala and Shin).

Brief History:

Committee Activity:

Human Services: 3/4/09, 3/26/09 [DPA];

Ways & Means: 4/4/09, 4/18/09 [DPA(WAYS w/o HS)].

Floor Activity

Passed House - Amended: 4/21/09, 51-45.

Majority Report: Do pass as amended. Signed by 5 members: Representatives Dickerson, Chair; Dammeier, Ranking Minority Member; Green, Morrell and O'Brien.

Minority Report: Do not pass. Signed by 3 members: Representatives Orwall, Vice Chair; Klippert and Walsh.

Staff: Linda Merelle (786-7092)

Majority Report: Do pass as amended by Committee on Ways & Means and without amendment by Committee on Human Services. Signed by 13 members: Representatives Linville, Chair; Ericks, Vice Chair; Cody, Conway, Darneille, Haigh, Hunt, Hunter, Kagi, Kenney, Kessler, Pettigrew and Sullivan.

Minority Report: Do not pass. Signed by 9 members: Representatives Alexander, Ranking Minority Member; Bailey, Assistant Ranking Minority Member; Dammeier, Assistant Ranking Minority Member; Chandler, Hinkle, Priest, Ross, Schmick and Seaquist.

Staff: Alex MacBain (786-7288)

Background:

Offender Accountability Act.

In 1999 the Legislature passed the Offender Accountability Act (Engrossed Second Substitute Senate Bill 5421). The Offender Accountability Act (OAA) extended community custody to all sex offenses, all crimes against persons, and all felony drug offenses. It required the Department of Corrections (DOC) to use a validated risk assessment and to supervise offenders according to their risk level. In 2003 the Legislature restricted the types of offenders that the DOC could supervise and increased the earned release time for certain offenders from one-third to 50 percent of their sentences.

Risk Assessment.

One purpose of the OAA is to reduce the risk of reoffense in the community. Under the OAA, the DOC is required to classify and supervise offenders according to their risk for recidivism. As a part of the OAA, the Washington State Institute for Public Policy (WSIPP) was directed to study the impact of the OAA on recidivism. In 2003 the WSIPP analyzed the validity of the DOC's risk assessment tool, the Level of Service Inventory-Revised (LSI-R). The LSI-R is a 54 question survey which includes "static" and "dynamic" risk factors. A static risk factor is a factor that cannot decrease, such as an offender's criminal history. A "dynamic" risk factor can decrease through intervention, such as an offender's drug dependency. In its analysis of the LSI-R, the WSIPP determined how the predictive accuracy of the LSI-R could be strengthened by including more static risk information about an offender's prior record of offenses. The WSIPP developed a new tool for risk assessment which would have increased accuracy for predicting reoffense.

In approximately August 2008, the DOC began using the new static risk assessment tool to assign a probability of a subsequent conviction based upon the criminal history, age, and gender of Washington offenders. Instead of the risk categories of the LSI-R (A, B, C, and D, with A being the highest risk), the new tool identified the risk categories of: (1) high risk/violent; (2) high risk/nonviolent; (3) moderate risk; and (4) low risk.

Currently, the DOC must supervise any offender who has been sentenced to community custody if (1) the risk assessment tool places the offender in one of the two highest risk categories or (2) if the offender meets one of the following conviction criteria for either a current offense, a prior offense, or a special sentencing condition or status.

Current Offense	Prior Conviction	Special Sentencing Conditions or Status
Sex Offense	Sex Offense	Condition of offender's supervision includes chemical dependency treatment, including the Drug Offender Sentencing Alternative (DOSA).
Violent Offense	Violent Offense	Offender was sentenced pursuant to a First Time Offender Waiver (FTOW).
Crime against persons (does not include fourth degree Assault)	Crime against persons (does not include fourth degree Assault)	Offender was sentenced to a Special Sex Offender Sentencing Alternative (SSOSA).
Residential Burglary	Residential Burglary	Supervision is required by the Interstate Compact for Adult Offender Supervision.
Manufacture, Delivery, or Possession of Methamphetamine	Manufacture, Delivery, or Possession of Methamphetamine
Delivery of a Controlled Substance to a Minor	Delivery of a Controlled Substance to a Minor

The DOC must supervise every offender sentenced by a superior court to probation for a misdemeanor or gross misdemeanor. The DOC is prohibited from supervision any offender who does not fall within one of the above categories.

Warrant Authority.

The DOC has the authority to issue arrest warrants for felony offenders under its supervision and to impose sanctions on those offenders. The DOC does not have any authority to issue warrants for the arrest of misdemeanant offenders under its supervision nor to sanction them.

Community Custody Ranges.

When a court sentences a felony offenders to community custody, the following ranges may be imposed:

Type of Offense	Community Custody Range
Sex Offense	36 - 48 Months
Serious Violent Offense	24 - 48 Months
Violent Offenses	18 - 36 Months
Crimes Against Persons	9 - 18 Months
Drug Offenses (Except DOSA)	9 - 12 Months

Summary of Amended Bill:

The DOC must supervise all offenders sentenced to community custody who are classified as a high risk to offend (high risk/violent and high risk/nonviolent) under the new tool developed by the WSIPP and offenders who meet other criteria as described below:

Two Highest Risk Categories	Regardless of Risk	Offenders sentenced to Probation for Misdemeanor/Gross Misdemeanor Offenses
All offenders sentenced to community custody whose risk assessment places them in the either the high risk/violent or high risk/nonviolent category regardless of offense.	Felony sex offenders	Offenders convicted of: fourth degree Assault or Domestic Violence Violation of No Contact Order; and a prior conviction for: (i) violent offense; (ii) sex offense; (iii) crime against person; (iv) fourth degree Assault; or (v) Domestic Violence Violation of No Contact Order.
	All dangerous mentally ill offenders.	Offenders convicted of: (i) second degree Sexual Misconduct with a Minor; (ii) second degree Custodial Sexual Misconduct; (iii) Communication with a Minor for Immoral Purposes or Failure to Register.
	All offenders with an indeterminate sentence.
	All offenders sentenced to DOSA, SSOSA, and FTOW.
	All offenders required to be supervised under the Interstate Compact for Adult Offender Supervision.

With the exception of the categories of exception of the offenders who are supervised regardless of risk, the DOC will not supervise offenders assessed as a low or moderate risk.

Supervision by the DOC.

Felony Offenders: The DOC must supervise all felony offenders sentenced to community custody who are classified as a high risk to offend (high risk/violent and high risk/nonviolent) under the new tool developed by the WSIPP and other felony offenders for the offenses described in the table above. The DOC must supervise all sex offenders, including those whose sole offense is failure to register, regardless of risk. The DOC must also supervise offenders classified as dangerous mentally ill offenders, those with indeterminate sentences, those required to be supervised under the Interstate Compact for Adult Offender Supervision, and offenders sentenced to special sentencing alternatives.

Misdemeanant Offenders: The DOC must supervise misdemeanor and gross misdemeanor offenders sentenced in superior court for Fourth Degree Assault or Domestic Violence Violation of a No Contact Order if they have a prior conviction for a sex offense, a violent offense, a crime against a person as defined in statute, Assault 4th Degree, or Domestic Violence Violation of a No Contact Order. The DOC must also supervise misdemeanor and gross misdemeanor offenders convicted of certain sex-related offenses for which registration is required and for the gross misdemeanor offense of Failure to Register.

Warrant Authority.

The DOC has authority to issue warrants for the arrest of and to sanction misdemeanant offenders under its supervision, in addition to its authority to arrest and sanction felony offenders.

Community Custody.

Community custody ranges are eliminated and replaced with fixed terms of 36 months, 18 months, and 12 months. Offenders convicted of a sex offense or a serious violent offense will have a 36-month term of community custody. An offender convicted of a violent offense that is not a serious violent offense will be placed on community custody for a period of 18 months. Offenders convicted of a crime against a person as defined in statute, an offense allowing the unlawful possession of a firearm, where the offender is a criminal street gang member, or certain felony drug offenses, the term will be 12 months. The community custody terms for offenders sentenced under the Special Sex Offender Sentencing Alternative, the Drug Offender Sentencing Alternative, Work Ethic Camp remain the same.

Retroactive Application.

This act applies retroactively and prospectively regardless of whether the offender is currently on community custody or probation with the DOC, currently incarcerated, or sentenced after the effective date of the act.

Report.

In the biennial report required by RCW 9.94A.850(2)(h)(iii), the Sentencing Guidelines Commission must report to the Governor and the Legislature regarding the effect of this act on adult recidivism. The report is due no later than December 1, 2011.

Repealed Statutes.

RCW 9.95.206, regarding an offender misdemeanor classification system is repealed. RCW 9.95.212 regarding standards for supervision of misdemeanor offenders is repealed. Under this bill, 2008 c 231 s 60 (uncodified) (Section 60 of House Bill 2719 passed by the 2008 Legislature) which stated that certain amendments to RCW 9.94A.501 expired on July 1, 2010, is repealed. Thus, the amendments to that section do not expire.

Emergency Clause.

Sections 1, 3, 11, 13, 16, 17, and 20 are subject to an emergency clause.

Expiration Dates.

Sections 1, 3, and 13 of this act expire on August 1, 2009.

Appropriation: None.

Fiscal Note: Available.

Effective Date of Amended Bill: The bill takes effect 90 days after adjournment of the session in which the bill is passed, except for sections 1, 3, 11, 13, 16, 17, and 20, relating to categories of offenders for Department of Corrections supervision, supervision of misdemeanants, repealed sections, and retroactivity, which contain an emergency clause and take effect immediately; and sections 2, 4 - 10, 12, and 14, relating to categories of offenders for Department of Corrections supervision, risk assessment, and the expiration of provisions passed in 2003, which take effect August 1, 2009.

Staff Summary of Public Testimony (Human Services):

(In support) Public safety is a big issue, and there is a very large budget issue to deal with. Regarding the new assessment tool, when the researchers looked at the supervision scheme, they looked at over 70,000 cases. It took a couple of years to determine a likelihood of supervision. For the level of supervision, we were not getting anything out of it. Initially, we started with a bill that had no supervision for offenders whose risk level was determined to be low or moderate. Having six months of supervision would give those offenders an opportunity to violate. Multiple violations would increase the risk offense level. In the Governor's budget, the suggestion was to reduce the supervision of misdemeanors and some low risk offenders and a reduction of an overall length of supervision. The reduction of the length of supervision is not in the bill. Money is primarily saved by laying off staff. No one with a current conviction for a sex offense will escape supervision.

(In support with concerns) This measure will have some level of an adverse impact on community safety. This bill is not going to get us where we want to go. If we make further cuts, the supervision of low and moderate offenders would be the place to make those cuts. It is not clear whether the level of supervision of misdemeanors has had a marked impact. The question is "which cuts are going to do the least damage?" The supervision of low and moderate risk offenders does not ever involve a face-to-face contact and is not effective. It should be eliminated. The supervision of misdemeanor offenders out of superior court is a big chunk of the savings in the bill. We may want to look at the length of community custody, but not at increased earned release time or to remove incentives to do treatment programs.

(With concerns) Under the provisions of this bill, the courts will leverage supervision by requiring chemical treatment as a condition which would displace those who really need treatment.

(Opposed) Prosecutors are concerned about the lack of the accountability under this bill. This bill would not recognize the nature of sex offenders. We should take time to look at the new assessment tool to see how it works. Let's not lose all of the ground gained regarding community safety and sex offenders. The static risk assessment too is not accurate in assessing all offenders. It contradicts what we know about sex offenders. Sex offenders and domestic violence offenders affect victims more strongly than other kinds of offenders. This bill could harm community safety. We are making legislation of a tool that is only 50 percent accurate. It has only been used since August of 2008. It is scoring on an automated system. This is not smart legislation. Good supervision of low or moderate offenders is effective. We have no faith that the assessment tool is scoring properly. Maybe hand scoring would make a difference.

(Information only) There is not a problem with the scoring on the new assessment tool. This tool was rolled out after a long development. It is an aggregate tool. There is nothing out there that is any better.

Staff Summary of Public Testimony (Ways & Means):

(In support) Last December counties were adopting budgets for 2009. Making those reductions wasn't pleasant, much like what the state is facing in this budget. Working on that process made us look at this upcoming legislative session and decide that there needed to be some options for you in how to make cuts in the DOC budget, because it wasn't going to be realistic for us to stand in front of you and say there will be no cuts for public safety.

And this bill is a big piece of how you do the least amount of harm to public safety while making cuts in the DOC budget. Essentially it eliminates low risk supervision, which runs the gamut from kiosk reporting to banked cases, and which we believe has not been successful in reducing recidivism.

This bill has been negotiated with stakeholders and the Governor to lessen the devastation that's already going on in other parts of the safety net that people in the state rely on. The money saved in this part of the budget can do more good in other parts of the budget in this difficult year.

The amendments made in the Human Services Committee did a good job of trying to carve out the assaultive misdemeanants for supervision, and remove supervision for low risk felons that was added in the Senate. We think that those were good decisions that will have the least damage on public safety.

In this situation, where the Legislature has to make cuts, this bill makes the right cut that does the least amount of damage and the elected prosecutors are in support of this bill.

(Opposed) There are two poor policy decisions included in this bill. First, the safety of the community is put at risk due to the reliance on a static risk assessment tool which may not accurately measure risk because it does not take into account behavior factors. Second, community supervision does work, and this bill reduces the number of community corrections officers and the number of offenders that will be supervised.

It takes human intervention, the ability to be able to sit down with an offender and make the cognitive thought processes and changes happen in order to make that person change.

Prison doesn't change offenders. The House budget takes close to 300 community corrections officers off the street and this bill is going to be responsible for half of those. The Governor's budget takes up to 500 of them off the street. That is half the public safety component workforce of community corrections. When you start cutting half of the forces that are protecting the public with offenders getting out of prison, you're flirting with disaster. So if it comes down to it and you're going to have to look for cuts, look at evidence based practices and realize that you are better off keeping the community supervision and getting offenders out of prison. It costs anywhere from $28,000 to $33,000 a year to put somebody in prison. It costs $1,300 a year to supervise them on community corrections. Keep those numbers in mind when you're thinking bang for the buck.

Persons Testifying (Human Services): (In support) Senator Hargrove, prime sponsor; Eldon Vail, Department of Corrections; and Lonnie Johns-Brown, Washington Coalition of Sexual Assault Programs.

(In support with concerns) Don Pierce, Washington Association of Sheriffs and Police Chiefs; and Tom McBride, Washington Association of Prosecuting Attorneys.

(With concerns) Victoria Roberts, Department of Social and Health Services, Division of Alcohol and Substance Abuse.

(Opposed) Megan Allen and Lindsay Palmer, King County Sexual Assault Resource Center; and Dana Hufford, Cindy McHie, Judith Lang, and Ginger Richardson, Washington Federation of State Employees.

(Information Only) Eldon Vail, Department of Corrections.

Persons Testifying (Ways & Means): (In support) Tom McBride, Washington Association of Prosecuting Attorneys; and Lonnie Johns-Brown, Washington Coalition of Sexual Assault Programs.

(Opposed) Matt Zurich and Ginger Richardson, Washington Federation of State Employees.

Persons Signed In To Testify But Not Testifying (Human Services): None.

Persons Signed In To Testify But Not Testifying (Ways & Means): None.