Background: The End of Sentence Review Committee (ESRC), chaired by the Department of Corrections, classifies sex offenders being released from Washington correctional institutions according to their risk of reoffense within the community. The ESRC classifies each offender as a level I (low risk), level II (moderate risk), or level III (high risk), and then forwards this classification to the county sheriff in the jurisdiction where the offender will reside. The sheriff may adopt the ESRC's risk level or establish a different level. In some situations, the ESRC may have not had the opportunity to classify a sex offender. This may occur when the law changed after an offender's release from confinement or the offender has moved here from another state. In this case, the sheriff's office will perform its own classification of the offender's risk.

Sex offenders designated as risk level II or III must report in person every 90 days to the sheriff of the county in which they are registered. Failure to meet this requirement is a Class C felony. In prosecuting a failure to report, the state must prove, as an element of the crime, that the defendant has been designated a risk level II or III.

In State v. Ramos, 202 P.3d 383 (2009), the court found that when a risk level classification is an element of a crime, a risk level classification made solely by the sheriff is an unconstitutional delegation of legislative authority. Ramos was convicted of sexual exploitation of a minor and released from confinement in 1995, prior to when the registration law went into effect. In 2001 Ramos became subject to the registration laws and was classified as a level II sex offender by the county sheriff. In 2008 Ramos failed to check in with the sheriff as required every 90 days and was subsequently convicted of a failure to register.

Under the separation of powers doctrine, the authority to define crimes and set punishments rests firmly within the Legislature. Specifically, the Legislature is responsible for defining the elements of a crime. The Legislature may delegate its authority only if it provides the other branch with adequate direction to reach a sufficient definition. Washington law does not provide criteria or any substantial definition to assist law enforcement in designating a sex offender as a risk level I, II, or III. The court therefore concluded that when the risk level is an element of the crime, the leveling decision constitutes an impermissible delegation of authority to law enforcement. Ramos' conviction was overturned for failure to register.

In 2008 the Legislature funded the Washington Association of Sheriffs and Police Chiefs (WASPC) to enter into performance based contracts with local sheriffs for the purposes of verifying addresses for sex offenders required to register. The budget proviso specified the funding was to ensure that addresses were verified every 12 months for level I offenders, every six months for level II offenders, and every three months for level III offenders.

Summary of Substitute Bill: Sex or kidnapping offenders required to register under Washington law are no longer required to report to law enforcement every 90 days. When funded, law enforcement may enter into performance based contracts with WASPC to actively verify offender addresses. The performance-based agreement must ensure that offender addresses are verified every 12 months for level I offenders, every six months for level II offenders and every three months for level III offenders. If a sheriff, police chief, or town marshal does not participate in the address verification grant program, the responsible law enforcement office must send a verification form to the offender no less than annually, by certified mail, return receipt requested.

WASPC must collect performance data from all participating jurisdictions and annually submit a report to the Governor and the Legislature on the effectiveness of the program. WASPC may retain up to 3 percent of funding provided for administration costs. Unclassified offenders and kidnapping offenders must be considered level I offenders unless the local jurisdiction believes a higher classification is justified.

Staff Summary of Public Testimony on Original Bill: PRO: After the decision in Ramos, law enforcement spent various times talking to stakeholders to determine the best approach to address that issue while still doing as good a job at monitoring sex offenders. It was determined that codifying the address verification program was the appropriate way to do this. We believe we have a better ability to track sex offenders if we are actually able to verify the address in person versus just receiving a post card from the offender. Just over 10 percent of offenders are not where they are supposed to be living. The address verification program has been effective in identifying these individuals.

This legislative fix removes an onerous requirement for offenders and replaces it with something that is easier to administer and that will withstand constitutional scrutiny.