BILL REQ. #: Z-0240.3
| State of Washington | 61st Legislature | 2009 Regular Session |
Read first time 01/16/09. Referred to Committee on Human Services.
AN ACT Relating to technical corrections to ensure accurate sentences for offenders; amending RCW 2.24.040, 9.41.045, 9.92.151, 9.94A.190, 9.94A.505, 9.94A.633, 9.94A.6332, 9.94A.670, 9.94A.701, 9.94A.703, 9.94A.704, 9.94A.731, 9.94A.771, 9.94A.835, 9.94A.850, 9.94B.030, 9.94B.060, 9.94B.070, 9.95.011, 9.95.017, 9.95.055, 9.95.070, 9.95.090, 9.95.110, 9.95.121, 9.95.122, 9.95.140, 9.95.425, 9.95.900, 9A.76.115, 13.40.135, 72.09.335, 72.09.340, 72.09.370, 72.09.714, 72.09.716, 72.09.718, and 72.09.720; reenacting and amending RCW 9.94A.030; adding new sections to chapter 9.94A RCW; adding a new section to chapter 9.94B RCW; recodifying RCW 9.94A.602, 9.94A.605, and 9.94A.771; repealing RCW 9.94A.545 and 9.94A.715; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 2.24.040 and 2000 c 73 s 1 are each amended to read as
follows:
Such court commissioner shall have power, authority, and
jurisdiction, concurrent with the superior court and the judge thereof,
in the following particulars:
(1) To hear and determine all matters in probate, to make and issue
all proper orders therein, and to issue citations in all cases where
same are authorized by the probate statutes of this state.
(2) To grant and enter defaults and enter judgment thereon.
(3) To issue temporary restraining orders and temporary
injunctions, and to fix and approve bonds thereon.
(4) To act as referee in all matters and actions referred to him or
her by the superior court as such, with all the powers now conferred
upon referees by law.
(5) To hear and determine all proceedings supplemental to
execution, with all the powers conferred upon the judge of the superior
court in such matters.
(6) To hear and determine all petitions for the adoption of
children and for the dissolution of incorporations.
(7) To hear and determine all applications for the commitment of
any person to the hospital for the insane, with all the powers of the
superior court in such matters: PROVIDED, That in cases where a jury
is demanded, same shall be referred to the superior court for trial.
(8) To hear and determine all complaints for the commitments of
minors with all powers conferred upon the superior court in such
matters.
(9) To hear and determine ex parte and uncontested civil matters of
any nature.
(10) To grant adjournments, administer oaths, preserve order,
compel attendance of witnesses, and to punish for contempts in the
refusal to obey or the neglect of the court commissioner's lawful
orders made in any matter before the court commissioner as fully as the
judge of the superior court.
(11) To take acknowledgments and proofs of deeds, mortgages and all
other instruments requiring acknowledgment under the laws of this
state, and to take affidavits and depositions in all cases.
(12) To provide an official seal, upon which shall be engraved the
words "Court Commissioner," and the name of the county for which he or
she may be appointed, and to authenticate his official acts therewith
in all cases where same is necessary.
(13) To charge and collect, for his or her own use, the same fees
for the official performance of official acts mentioned in subsections
(4) and (11) of this section as are provided by law for referees and
notaries public.
(14) To hear and determine small claims appeals as provided in
chapter 12.36 RCW.
(15) In adult criminal cases, to preside over arraignments,
preliminary appearances, initial extradition hearings, and
noncompliance proceedings pursuant to RCW ((9.94A.634)) 9.94A.6333 or
9.94B.040; accept pleas if authorized by local court rules; appoint
counsel; make determinations of probable cause; set, amend, and review
conditions of pretrial release; set bail; set trial and hearing dates;
authorize continuances; and accept waivers of the right to speedy
trial.
Sec. 2 RCW 9.41.045 and 1991 c 221 s 1 are each amended to read
as follows:
As a sentence condition and requirement, offenders under the
supervision of the department of corrections pursuant to chapter 9.94A
RCW shall not own, use, or possess firearms or ammunition. In addition
to any penalty imposed pursuant to RCW 9.41.040 when applicable,
offenders found to be in actual or constructive possession of firearms
or ammunition shall be subject to the appropriate violation process and
sanctions as provided for in RCW ((9.94A.634)) 9.94A.633, 9.94A.716, or
9.94A.737. Firearms or ammunition owned, used, or possessed by
offenders may be confiscated by community corrections officers and
turned over to the Washington state patrol for disposal as provided in
RCW 9.41.098.
Sec. 3 RCW 9.92.151 and 2004 c 176 s 5 are each amended to read
as follows:
(1) Except as provided in subsection (2) of this section, the
sentence of a prisoner confined in a county jail facility for a felony,
gross misdemeanor, or misdemeanor conviction may be reduced by earned
release credits in accordance with procedures that shall be developed
and promulgated by the correctional agency having jurisdiction. The
earned early release time shall be for good behavior and good
performance as determined by the correctional agency having
jurisdiction. Any program established pursuant to this section shall
allow an offender to earn early release credits for presentence
incarceration. The correctional agency shall not credit the offender
with earned early release credits in advance of the offender actually
earning the credits. 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 may the
aggregate earned early release time exceed one-third of the total
sentence.
(2) An offender serving a term of confinement imposed under RCW
9.94A.670(((4))) (5)(a) is not eligible for earned release credits
under this section.
Sec. 4 RCW 9.94A.030 and 2008 c 276 s 309, 2008 c 231 s 23, 2008
c 230 s 2, and 2008 c 7 s 1 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) "Board" means the indeterminate sentence review board created
under chapter 9.95 RCW.
(2) "Collect," or any derivative thereof, "collect and remit," or
"collect and deliver," when used with reference to the department,
means that the department, either directly or through a collection
agreement authorized by RCW 9.94A.760, 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.
(3) "Commission" means the sentencing guidelines commission.
(4) "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.
(5) "Community custody" means that portion of an offender's
sentence of confinement in lieu of earned release time or imposed as
part of a sentence and served in the community subject to controls
placed on the offender's movement and activities by the department.
(6) "Community custody range" means the minimum and maximum period
of community custody included as part of a sentence under RCW
((9.94A.715)) 9.94A.701, as established by the commission or the
legislature under RCW 9.94A.850.
(7) "Community protection zone" means the area within eight hundred
eighty feet of the facilities and grounds of a public or private
school.
(8) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(9) "Confinement" means total or partial confinement.
(10) "Conviction" means an adjudication of guilt pursuant to
Title((s)) 10 or 13 RCW and includes a verdict of guilty, a finding of
guilty, and acceptance of a plea of guilty.
(11) "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.
(12) "Criminal history" means the list of a defendant's prior
convictions and juvenile adjudications, whether in this state, in
federal court, or elsewhere.
(a) The history shall include, where known, for each conviction (i)
whether the defendant has been placed on probation and the length and
terms thereof; and (ii) whether the defendant has been incarcerated and
the length of incarceration.
(b) A conviction may be removed from a defendant's criminal history
only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or
a similar out-of-state statute, or if the conviction has been vacated
pursuant to a governor's pardon.
(c) The determination of a defendant's criminal history is distinct
from the determination of an offender score. A prior conviction that
was not included in an offender score calculated pursuant to a former
version of the sentencing reform act remains part of the defendant's
criminal history.
(13) "Criminal street gang" means any ongoing organization,
association, or group of three or more persons, whether formal or
informal, having a common name or common identifying sign or symbol,
having as one of its primary activities the commission of criminal
acts, and whose members or associates individually or collectively
engage in or have engaged in a pattern of criminal street gang
activity. This definition does not apply to employees engaged in
concerted activities for their mutual aid and protection, or to the
activities of labor and bona fide nonprofit organizations or their
members or agents.
(14) "Criminal street gang associate or member" means any person
who actively participates in any criminal street gang and who
intentionally promotes, furthers, or assists in any criminal act by the
criminal street gang.
(15) "Criminal street gang-related offense" means any felony or
misdemeanor offense, whether in this state or elsewhere, that is
committed for the benefit of, at the direction of, or in association
with any criminal street gang, or is committed with the intent to
promote, further, or assist in any criminal conduct by the gang, or is
committed for one or more of the following reasons:
(a) To gain admission, prestige, or promotion within the gang;
(b) To increase or maintain the gang's size, membership, prestige,
dominance, or control in any geographical area;
(c) To exact revenge or retribution for the gang or any member of
the gang;
(d) To obstruct justice, or intimidate or eliminate any witness
against the gang or any member of the gang;
(e) To directly or indirectly cause any benefit, aggrandizement,
gain, profit, or other advantage for the gang, its reputation,
influence, or membership; or
(f) To provide the gang with any advantage in, or any control or
dominance over any criminal market sector, including, but not limited
to, manufacturing, delivering, or selling any controlled substance
(chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen
property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88
RCW); human trafficking (RCW 9A.40.100); or promoting pornography
(chapter 9.68 RCW).
(16) "Day fine" means a fine imposed by the sentencing 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.
(17) "Day reporting" means a program of enhanced supervision
designed to monitor the offender's daily activities and compliance with
sentence conditions, and in which the offender is required to report
daily to a specific location designated by the department or the
sentencing court.
(18) "Department" means the department of corrections.
(19) "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 custody, the number
of actual hours or days of community restitution 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.
(20) "Disposable earnings" means that part of the earnings of an
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.
(21) "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 RCW
9.94A.660.
(22) "Drug offense" means:
(a) Any felony violation of chapter 69.50 RCW except possession of
a controlled substance (RCW 69.50.4013) 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.
(23) "Earned release" means earned release from confinement as
provided in RCW 9.94A.728.
(24) "Escape" means:
(a) Sexually violent predator escape (RCW 9A.76.115), 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.
(25) "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), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the
influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug (RCW 46.61.504(6)); 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.
(26) "Fine" means 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.
(27) "First-time offender" means any person who has no prior
convictions for a felony and is eligible for the first-time offender
waiver under RCW 9.94A.650.
(28) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private
residence subject to electronic surveillance.
(29) "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.
(30) "Most serious offense" means any of the following felonies or
a felony attempt to commit any of the following felonies:
(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, when caused by the operation or driving of
a vehicle by a person while under the influence of intoxicating liquor
or any drug or by the operation or driving of a vehicle in a reckless
manner;
(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;
(t) Any other felony with a deadly weapon verdict under RCW
9.94A.602 (as recodified by this act);
(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;
(w) Any out-of-state conviction for a felony offense with a finding
of sexual motivation if the minimum sentence imposed was ten years or
more; provided that the out-of-state felony offense must be comparable
to a felony offense under Title 9 or 9A RCW and the out-of-state
definition of sexual motivation must be comparable to the definition of
sexual motivation contained in this section.
(31) "Nonviolent offense" means an offense which is not a violent
offense.
(32) "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.
(33) "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.
(34) "Pattern of criminal street gang activity" means:
(a) The commission, attempt, conspiracy, or solicitation of, or any
prior juvenile adjudication of or adult conviction of, two or more of
the following criminal street gang-related offenses:
(i) Any "serious violent" felony offense as defined in RCW
9.94A.030, excluding Homicide by Abuse (RCW 9A.32.055) and Assault of
a Child 1 (RCW 9A.36.120);
(ii) Any "violent" offense as defined by RCW 9.94A.030, excluding
Assault of a Child 2 (RCW 9A.36.130);
(iii) Deliver or Possession with Intent to Deliver a Controlled
Substance (chapter 69.50 RCW);
(iv) Any violation of the firearms and dangerous weapon act
(chapter 9.41 RCW);
(v) Theft of a Firearm (RCW 9A.56.300);
(vi) Possession of a Stolen Firearm (RCW 9A.56.310);
(vii) Malicious Harassment (RCW 9A.36.080);
(viii) Harassment where a subsequent violation or deadly threat is
made (RCW 9A.46.020(2)(b));
(ix) Criminal Gang Intimidation (RCW 9A.46.120);
(x) Any felony conviction by a person eighteen years of age or
older with a special finding of involving a juvenile in a felony
offense under RCW 9.94A.833;
(xi) Residential Burglary (RCW 9A.52.025);
(xii) Burglary 2 (RCW 9A.52.030);
(xiii) Malicious Mischief 1 (RCW 9A.48.070);
(xiv) Malicious Mischief 2 (RCW 9A.48.080);
(xv) Theft of a Motor Vehicle (RCW 9A.56.065);
(xvi) Possession of a Stolen Motor Vehicle (RCW 9A.56.068);
(xvii) Taking a Motor Vehicle Without Permission 1 (RCW 9A.56.070);
(xviii) Taking a Motor Vehicle Without Permission 2 (RCW
9A.56.075);
(xix) Extortion 1 (RCW 9A.56.120);
(xx) Extortion 2 (RCW 9A.56.130);
(xxi) Intimidating a Witness (RCW 9A.72.110);
(xxii) Tampering with a Witness (RCW 9A.72.120);
(xxiii) Reckless Endangerment (RCW 9A.36.050);
(xxiv) Coercion (RCW 9A.36.070);
(xxv) Harassment (RCW 9A.46.020); or
(xxvi) Malicious Mischief 3 (RCW 9A.48.090);
(b) That at least one of the offenses listed in (a) of this
subsection shall have occurred after July 1, 2008;
(c) That the most recent committed offense listed in (a) of this
subsection occurred within three years of a prior offense listed in (a)
of this subsection; and
(d) Of the offenses that were committed in (a) of this subsection,
the offenses occurred on separate occasions or were committed by two or
more persons.
(35) "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.525; 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) 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, assault of a child in the second degree, or burglary in the
first degree; or (C) an attempt to commit any crime listed in this
subsection (35)(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 or any federal or out-of-state offense or offense under
prior Washington law that is comparable to the offenses listed in
(b)(i) of this subsection. A conviction for rape of a child in the
first degree constitutes a conviction under (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 (b)(i) of this
subsection only when the offender was eighteen years of age or older
when the offender committed the offense.
(36) "Predatory" means: (a) The perpetrator of the crime was a
stranger to the victim, as defined in this section; (b) the perpetrator
established or promoted a relationship with the victim prior to the
offense and the victimization of the victim was a significant reason
the perpetrator established or promoted the relationship; or (c) the
perpetrator was: (i) A teacher, counselor, volunteer, or other person
in authority in any public or private school and the victim was a
student of the school under his or her authority or supervision. For
purposes of this subsection, "school" does not include home-based
instruction as defined in RCW 28A.225.010; (ii) a coach, trainer,
volunteer, or other person in authority in any recreational activity
and the victim was a participant in the activity under his or her
authority or supervision; or (iii) a pastor, elder, volunteer, or other
person in authority in any church or religious organization, and the
victim was a member or participant of the organization under his or her
authority.
(37) "Private school" means a school regulated under chapter
28A.195 or 28A.205 RCW.
(38) "Public school" has the same meaning as in RCW 28A.150.010.
(39) "Restitution" means a specific sum of money 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.
(40) "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.
(41) "Serious traffic offense" means:
(a) Nonfelony driving while under the influence of intoxicating
liquor or any drug (RCW 46.61.502), nonfelony 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.
(42) "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;
(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.
(43) "Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.130(12);
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than
RCW 9.68A.080; 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.835 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.
(44) "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.
(45) "Standard sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(46) "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.
(47) "Stranger" means that the victim did not know the offender
twenty-four hours before the offense.
(48) "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.
(49) "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.
(50) "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.
(51) "Violent offense" means:
(a) Any of the following felonies:
(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, when caused by the operation or driving
of a vehicle by a person while under the influence of intoxicating
liquor or any drug or by the operation or driving of a vehicle in a
reckless manner; 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.
(52) "Work crew" means a program of partial confinement consisting
of civic improvement tasks for the benefit of the community that
complies with RCW 9.94A.725.
(53) "Work ethic camp" means an alternative incarceration program
as provided in RCW 9.94A.690 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.
(54) "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.
Sec. 5 RCW 9.94A.190 and 2001 2nd sp.s. c 12 s 313 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 in subsection (3) or (5) 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 offender or a member of the 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 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 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.589.
(4) Notwithstanding any other provision of this section, a sentence
imposed pursuant to RCW 9.94A.660 which has a standard sentence range
of over one year, regardless of length, shall be served in a facility
or institution operated, or utilized under contract, by the state.
(5) Sentences imposed pursuant to RCW ((9.94A.712)) 9.94A.507 shall
be served in a facility or institution operated, or utilized under
contract, by the state.
Sec. 6 RCW 9.94A.505 and 2008 c 231 s 25 are each amended to read
as follows:
(1) When a person is convicted of a felony, the court shall impose
punishment as provided in this chapter.
(2)(a) The court shall impose a sentence as provided in the
following sections and as applicable in the case:
(i) Unless another term of confinement applies, a sentence within
the standard sentence range established in RCW 9.94A.510 or 9.94A.517;
(ii) RCW 9.94A.701 and 9.94A.702, relating to community custody;
(iii) RCW 9.94A.570, relating to persistent offenders;
(iv) RCW 9.94A.540, relating to mandatory minimum terms;
(v) RCW 9.94A.650, relating to the first-time offender waiver;
(vi) RCW 9.94A.660, relating to the drug offender sentencing
alternative;
(vii) RCW 9.94A.670, relating to the special sex offender
sentencing alternative;
(viii) RCW ((9.94A.712)) 9.94A.507, relating to certain sex
offenses;
(ix) RCW 9.94A.535, relating to exceptional sentences;
(x) RCW 9.94A.589, relating to consecutive and concurrent
sentences;
(xi) RCW 9.94A.603, relating to felony driving while under the
influence of intoxicating liquor or any drug and felony physical
control of a vehicle while under the influence of intoxicating liquor
or any drug.
(b) If a standard sentence range has not been established for the
offender's crime, the court shall impose a determinate sentence which
may include not more than one year of confinement; community
restitution work; a term of community custody not to exceed one year;
and/or other legal financial obligations. The court may impose a
sentence which provides more than one year of confinement if the court
finds reasons justifying an exceptional sentence as provided in RCW
9.94A.535.
(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.
(4) If a sentence imposed includes payment of a legal financial
obligation, it shall be imposed as provided in RCW 9.94A.750,
9.94A.753, 9.94A.760, and 43.43.7541.
(5) Except as provided under RCW 9.94A.750(4) and 9.94A.753(4), a
court may not impose a sentence providing for a term of confinement or
community custody that exceeds the statutory maximum for the crime as
provided in chapter 9A.20 RCW.
(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.
(7) The court shall order restitution as provided in RCW 9.94A.750
and 9.94A.753.
(8) As a part of any sentence, the court may impose and enforce
crime-related prohibitions and affirmative conditions as provided in
this chapter.
(9) In any sentence of partial confinement, the court may require
the 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.
Sec. 7 RCW 9.94A.633 and 2008 c 231 s 15 are each amended to read
as follows:
(1)(a) An offender who violates any condition or requirement of a
sentence may be sanctioned with up to sixty days' confinement for each
violation.
(b) In lieu of confinement, an offender may be sanctioned with work
release, home detention with electronic monitoring, work crew,
community restitution, inpatient treatment, daily reporting, curfew,
educational or counseling sessions, supervision enhanced through
electronic monitoring, or any other sanctions available in the
community.
(2) If an offender was under community custody pursuant to one of
the following statutes, the offender may be sanctioned as follows:
(a) If the offender was transferred to community custody in lieu of
earned early release in accordance with RCW 9.94A.728(2), the offender
may be transferred to a more restrictive confinement status to serve up
to the remaining portion of the sentence, less credit for any period
actually spent in community custody or in detention awaiting
disposition of an alleged violation.
(b) If the offender was sentenced under the drug offender
sentencing alternative set out in RCW 9.94A.660, the offender may be
sanctioned in accordance with that section.
(c) If the offender was sentenced under the special sexual offender
sentencing alternative set out in RCW 9.94A.670, the suspended sentence
may be revoked and the offender committed to serve the original
sentence of confinement.
(d) If the offender was sentenced to a work ethic camp pursuant to
RCW 9.94A.690, the offender may be reclassified to serve the unexpired
term of his or her sentence in total confinement.
(e) If a sex offender was sentenced pursuant to RCW ((9.94A.712))
9.94A.507, the offender may be transferred to a more restrictive
confinement status to serve up to the remaining portion of the
sentence, less credit for any period actually spent in community
custody or in detention awaiting disposition of an alleged violation.
Sec. 8 RCW 9.94A.6332 and 2008 c 231 s 18 are each amended to
read as follows:
The procedure for imposing sanctions for violations of sentence
conditions or requirements is as follows:
(1) If the offender was sentenced under the drug offender
sentencing alternative, any sanctions shall be imposed by the
department or the court pursuant to RCW 9.94A.660.
(2) If the offender was sentenced under the special sexual offender
sentencing alternative, any sanctions shall be imposed by the
department or the court pursuant to RCW 9.94A.670.
(3) If a sex offender was sentenced pursuant to RCW ((9.94A.712))
9.94A.507, any sanctions shall be imposed by the board pursuant to RCW
9.95.435.
(4) In any other case, if the offender is being supervised by the
department, any sanctions shall be imposed by the department pursuant
to RCW 9.94A.737.
(5) If the offender is not being supervised by the department, any
sanctions shall be imposed by the court pursuant to RCW 9.94A.6333.
Sec. 9 RCW 9.94A.670 and 2008 c 231 s 31 are each amended to read
as follows:
(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 or a certified affiliate
sex offender treatment provider as defined in RCW 18.155.020.
(b) "Substantial bodily harm" means bodily injury that involves a
temporary but substantial disfigurement, or that causes a temporary but
substantial loss or impairment of the function of any body part or
organ, or that causes a fracture of any body part or organ.
(c) "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. If the conviction results from a guilty plea, the
offender must, as part of his or her plea of guilty, voluntarily and
affirmatively admit he or she committed all of the elements of the
crime to which the offender is pleading guilty. This alternative is
not available to offenders who plead guilty to the offense charged
under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970) and State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976);
(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;
(c) The offender has no prior adult convictions for a violent
offense that was committed within five years of the date the current
offense was committed;
(d) The offense did not result in substantial bodily harm to the
victim;
(e) The offender had an established relationship with, or
connection to, the victim such that the sole connection with the victim
was not the commission of the crime; and
(f) 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 and affirmative
conditions, which must include, to the extent known, an identification
of specific activities or behaviors that are precursors to the
offender's offense cycle, including, but not limited to, activities or
behaviors such as viewing or listening to pornography or use of alcohol
or controlled substances.
(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, consider whether the alternative is too lenient in light
of the extent and circumstances of the offense, consider whether the
offender has victims in addition to the victim of the offense, consider
whether the offender is amenable to treatment, consider the risk the
offender would present to the community, to the victim, or to persons
of similar age and circumstances as the victim, and consider the
victim's opinion whether the offender should receive a treatment
disposition under this section. The court shall give great weight to
the victim's opinion whether the offender should receive a treatment
disposition under this section. If the sentence imposed is contrary to
the victim's opinion, the court shall enter written findings stating
its reasons for imposing the treatment disposition. The fact that the
offender admits to his or her offense does not, by itself, constitute
amenability to treatment. If the court determines that this
alternative is appropriate, the court shall then impose a sentence or,
pursuant to RCW ((9.94A.712)) 9.94A.507, a minimum term of sentence,
within the standard sentence range. If the sentence imposed is less
than eleven years of confinement, the court may suspend the execution
of the sentence as provided in this section.
(5) As conditions of the suspended sentence, the court must impose
the following:
(a) A term of confinement of up to twelve months or the maximum
term within the standard range, whichever is less. The court may order
the offender to serve a term of confinement greater than twelve months
or the maximum term within the standard range based on the presence of
an aggravating circumstance listed in RCW 9.94A.535(3). In no case
shall the term of confinement exceed the statutory maximum sentence for
the offense. The court may order the offender to serve all or part of
his or her term of confinement in partial confinement. An offender
sentenced to a term of confinement under this subsection is not
eligible for earned release under RCW 9.92.151 or 9.94A.728.
(b) A term of community custody equal to the length of the
suspended sentence, the length of the maximum term imposed pursuant to
RCW ((9.94A.712)) 9.94A.507, or three years, whichever is greater, and
require the offender to comply with any conditions imposed by the
department under RCW 9.94A.703.
(c) Treatment for any period up to five 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.
(d) Specific prohibitions and affirmative conditions relating to
the known precursor activities or behaviors identified in the proposed
treatment plan under subsection (3)(b)(v) of this section or identified
in an annual review under subsection (8)(b) of this section.
(6) As conditions of the suspended sentence, the court may impose
one or more of the following:
(a) Crime-related prohibitions;
(b) Require the offender to devote time to a specific employment or
occupation;
(c) Require the offender to 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;
(d) Require the offender to report as directed to the court and a
community corrections officer;
(e) Require the offender to pay all court-ordered legal financial
obligations as provided in RCW 9.94A.030;
(f) Require the offender to perform community restitution work; or
(g) Require the offender to reimburse the victim for the cost of
any counseling required as a result of the offender's crime.
(7) 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.
(8)(a) 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.
(b) The court shall conduct a hearing on the offender's progress in
treatment at least once a year. At least fourteen days prior to the
hearing, notice of the hearing shall be given to the victim. The
victim shall be given the opportunity to make statements to the court
regarding the offender's supervision and treatment. At the hearing,
the court may modify conditions of community custody including, but not
limited to, crime-related prohibitions and affirmative conditions
relating to activities and behaviors identified as part of, or relating
to precursor activities and behaviors in, the offender's offense cycle
or revoke the suspended sentence.
(9) At least fourteen days prior to the treatment termination
hearing, notice of the hearing shall be given to the victim. The
victim shall be given the opportunity to make statements to the court
regarding the offender's supervision and treatment. 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. The court
may order an evaluation regarding the advisability of termination from
treatment by a sex offender treatment provider who may not be the same
person who treated the offender under subsection (5) of this section or
any person who employs, is employed by, or shares profits with the
person who treated the offender under subsection (5) of this section
unless the court has entered written findings that such evaluation is
in the best interest of the victim and that a successful evaluation of
the offender would otherwise be impractical. The offender shall pay
the cost of the evaluation. At the treatment termination hearing the
court may: (a) Modify conditions of community custody, and either (b)
terminate treatment, or (c) extend treatment in two-year increments for
up to the remaining period of community custody.
(10)(a) If a violation of conditions other than a second violation
of the prohibitions or affirmative conditions relating to precursor
behaviors or activities imposed under subsection (5)(d) or (8)(b) of
this section occurs during community custody, the department shall
either impose sanctions as provided for in RCW 9.94A.633(1) or refer
the violation to the court and recommend revocation of the suspended
sentence as provided for in subsections (7) and (9) of this section.
(b) If a second violation of the prohibitions or affirmative
conditions relating to precursor behaviors or activities imposed under
subsection (5)(d) or (8)(b) of this section occurs during community
custody, the department shall refer the violation to the court and
recommend revocation of the suspended sentence as provided in
subsection (11) of this section.
(11) 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.
(12) If the offender violates a requirement of the sentence that is
not a condition of the suspended sentence pursuant to subsection (5) or
(6) of this section, the department may impose sanctions pursuant to
RCW 9.94A.633(1).
(13) The offender's sex offender treatment provider may not be the
same person who examined the offender under subsection (3) of this
section or any person who employs, is employed by, or shares profits
with the person who examined the offender under subsection (3) of this
section, unless the court has entered written findings that such
treatment is in the best interests of the victim and that successful
treatment of the offender would otherwise be impractical. Examinations
and treatment ordered pursuant to this subsection shall only be
conducted by certified sex offender treatment providers or certified
affiliate sex offender treatment providers under 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 sex offender treatment providers or certified
affiliate sex offender treatment 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.
(14) 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. 10 RCW 9.94A.701 and 2008 c 231 s 7 are each amended to read
as follows:
(1) If an offender is sentenced to the custody of the department
for one of the following crimes, the court shall impose a term of
community custody for the community custody range established under RCW
9.94A.850 or up to the period of earned release awarded pursuant to RCW
9.94A.728 (1) and (2), whichever is longer:
(a) A sex offense not sentenced under RCW ((9.94A.712)) 9.94A.507;
(b) A violent offense;
(c) A crime against persons under RCW 9.94A.411(2);
(d) An offense involving the unlawful possession of a firearm under
RCW 9.41.040, where the offender is a criminal street gang member or
associate;
(e) A felony offender under chapter 69.50 or 69.52 RCW.
(2) If an offender is sentenced to a term of confinement of one
year or less for a violation of RCW 9A.44.130(11)(a), the court shall
impose a term of community custody for the community custody range
established under RCW 9.94A.850 or up to the period of earned release
awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer.
(3) If an offender is sentenced under the drug offender sentencing
alternative, the court shall impose community custody as provided in
RCW 9.94A.660.
(4) If an offender is sentenced under the special sexual offender
sentencing alternative, the court shall impose community custody as
provided in RCW 9.94A.670.
(5) If an offender is sentenced to a work ethic camp, the court
shall impose community custody as provided in RCW 9.94A.690.
(6) If a sex offender is sentenced as a nonpersistent offender
pursuant to RCW ((9.94A.712)) 9.94A.507, the court shall impose
community custody as provided in that section.
(7) If the offender is a criminal street gang associate or member
and is found guilty of unlawful possession of a firearm under RCW
9.41.040, the court shall impose a term of community custody under
subsection (1)(d) of this section.
Sec. 11 RCW 9.94A.703 and 2008 c 231 s 9 are each amended to read
as follows:
When a court sentences a person to a term of community custody, the
court shall impose conditions of community custody as provided in this
section.
(1) Mandatory conditions. As part of any term of community
custody, the court shall:
(a) Require the offender to inform the department of court-ordered
treatment upon request by the department;
(b) Require the offender to comply with any conditions imposed by
the department under RCW 9.94A.704;
(c) If the offender was sentenced under RCW ((9.94A.712)) 9.94A.507
for an offense listed in RCW ((9.94A.712)) 9.94A.507(1)(a), and the
victim of the offense was under eighteen years of age at the time of
the offense, prohibit the offender from residing in a community
protection zone.
(2) Waivable conditions. Unless waived by the court, as part of
any term of community custody, the court shall order an offender to:
(a) Report to and be available for contact with the assigned
community corrections officer as directed;
(b) Work at department-approved education, employment, or community
restitution, or any combination thereof;
(c) Refrain from possessing or consuming controlled substances
except pursuant to lawfully issued prescriptions;
(d) Pay supervision fees as determined by the department; and
(e) Obtain prior approval of the department for the offender's
residence location and living arrangements.
(3) Discretionary conditions. As part of any term of community
custody, the court may order an offender to:
(a) Remain within, or outside of, a specified geographical
boundary;
(b) Refrain from direct or indirect contact with the victim of the
crime or a specified class of individuals;
(c) Participate in crime-related treatment or counseling services;
(d) 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;
(e) Refrain from consuming alcohol; or
(f) Comply with any crime-related prohibitions.
(4) Special conditions.
(a) 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 order the offender to
participate in a domestic violence perpetrator program approved under
RCW 26.50.150.
(b)(i) In sentencing an offender convicted of an alcohol or drug-related traffic offense, the court shall require the offender to
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, defined under RCW 46.61.516, that has
been approved by the department of social and health services. If the
offense was pursuant to chapter 46.61 RCW, the report shall be
forwarded to the department of licensing. If the offender is found to
have an alcohol or drug problem that requires treatment, the offender
shall complete treatment in a program approved by the department of
social and health services under chapter 70.96A RCW. If the offender
is found not to have an alcohol or drug problem that requires
treatment, the offender shall complete a course in an information
school approved by the department of social and health services under
chapter 70.96A RCW. The offender shall pay all costs for any
evaluation, education, or treatment required by this section, unless
the offender is eligible for an existing program offered or approved by
the department of social and health services.
(ii) For purposes of this section, "alcohol or drug-related traffic
offense" means the following: Driving while under the influence as
defined by RCW 46.61.502, actual physical control while under the
influence as defined by RCW 46.61.504, vehicular homicide as defined by
RCW 46.61.520(1)(a), vehicular assault as defined by RCW
46.61.522(1)(b), homicide by watercraft as defined by RCW 79A.60.050,
or assault by watercraft as defined by RCW 79A.60.060.
(iii) This subsection (4)(b) does not require the department of
social and health services to add new treatment or assessment
facilities nor affect its use of existing programs and facilities
authorized by law.
Sec. 12 RCW 9.94A.704 and 2008 c 231 s 10 are each amended to
read as follows:
(1) Every person who is sentenced to a period of community custody
shall report to and be placed under the supervision of the department,
subject to RCW 9.94A.501.
(2)(a) The department shall assess the offender's risk of reoffense
and may establish and modify additional conditions of community custody
based upon the risk to community safety.
(b) 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 (2)(b).
(3) If the offender is supervised by the department, the department
shall at a minimum instruct the offender to:
(a) Report as directed to a community corrections officer;
(b) Remain within prescribed geographical boundaries;
(c) Notify the community corrections officer of any change in the
offender's address or employment;
(d) Pay the supervision fee assessment; and
(e) Disclose the fact of supervision to any mental health or
chemical dependency treatment provider, as required by RCW 9.94A.722.
(4) The department may require the offender to participate in
rehabilitative programs, or otherwise perform affirmative conduct, and
to obey all laws.
(5) If the offender was sentenced pursuant to a conviction for a
sex offense, the department may impose electronic monitoring. Within
the resources made available by the department for this purpose, the
department shall carry out any electronic monitoring using the most
appropriate technology given the individual circumstances of the
offender. As used in this section, "electronic monitoring" means the
monitoring of an offender using an electronic offender tracking system
including, but not limited to, a system using radio frequency or active
or passive global positioning system technology.
(6) The department may not impose conditions that are contrary to
those ordered by the court and may not contravene or decrease court-imposed conditions.
(7)(a) The department shall notify the offender in writing of any
additional conditions or modifications.
(b) 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 the crime of conviction, the
offender's risk of reoffending, or the safety of the community.
(8) The department may require offenders to pay for special
services rendered including electronic monitoring, day reporting, and
telephone reporting, dependent on the offender's ability to pay. The
department may pay for these services for offenders who are not able to
pay.
(9)(a) When a sex offender has been sentenced pursuant to RCW
((9.94A.712)) 9.94A.507, the board shall exercise the authority
prescribed in RCW 9.95.420 through 9.95.435 and shall exercise the
authority and perform the duties that would otherwise be exercised by
the department under this section.
(b) The department shall assess the offender's risk of recidivism
and shall recommend to the board any additional or modified conditions
based upon the risk to community safety. The board must consider and
may impose department-recommended conditions.
(c) If the department finds that an emergency exists requiring the
immediate imposition of additional conditions in order to prevent the
offender from committing a crime, the department may impose such
conditions. The department may not impose conditions that are contrary
to those set by the board or the court and may not contravene or
decrease court-imposed or board-imposed conditions. Conditions imposed
under this subsection shall take effect immediately after notice to the
offender by personal service, but shall not remain in effect longer
than seven working days unless approved by the board.
(10) In setting, modifying, and enforcing conditions of community
custody, the department shall be deemed to be performing a
quasi-judicial function.
Sec. 13 RCW 9.94A.731 and 2003 c 254 s 2 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(((31))) and 9.94A.725. 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 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 department.
(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. 14 RCW 9.94A.771 and 1989 c 252 s 18 are each amended to
read as follows:
For those individuals who, as a condition and term of their
sentence imposed on or before July 1, 1989, have had financial
obligations imposed, and who are not in compliance with the court order
requiring payment of that legal financial obligation, no action shall
be brought before the court from July 1, 1989, through and including
December 31, 1989, to impose a penalty for their failure to pay. All
individuals who, after December 31, 1989, have not taken the
opportunity to bring their legal financial obligation current, shall be
proceeded against pursuant to RCW ((9.94A.634)) 9.94B.040.
Sec. 15 RCW 9.94A.835 and 2006 c 123 s 2 are each amended to read
as follows:
(1) The prosecuting attorney shall file a special allegation of
sexual motivation in every criminal case, felony, gross misdemeanor, or
misdemeanor, other than sex offenses as defined in RCW 9.94A.030(((38)
(a) or (c))) when sufficient admissible evidence exists, which, when
considered with the most plausible, reasonably foreseeable defense that
could be raised under the evidence, would justify a finding of sexual
motivation by a reasonable and objective fact finder.
(2) In a criminal case wherein there has been a special allegation
the state shall prove beyond a reasonable doubt that the accused
committed the crime with a sexual motivation. The court shall make a
finding of fact of whether or not a sexual motivation was present at
the time of the commission of the crime, or if a jury trial is had, the
jury shall, if it finds the defendant guilty, also find a special
verdict as to whether or not the defendant committed the crime with a
sexual motivation. This finding shall not be applied to sex offenses
as defined in RCW 9.94A.030(((38)(a) or (c))).
(3) The prosecuting attorney shall not withdraw the special
allegation of sexual motivation without approval of the court through
an order of dismissal of the special allegation. The court shall not
dismiss this special allegation unless it finds that such an order is
necessary to correct an error in the initial charging decision or
unless there are evidentiary problems which make proving the special
allegation doubtful.
NEW SECTION. Sec. 16 A new section is added to chapter 9.94A RCW
under the subchapter heading "Special Allegations" to read as follows:
In a criminal case in which the defendant has been convicted of
unlawful possession of a firearm under RCW 9.41.040, and there has been
a special allegation pleaded and proven by a preponderance of the
evidence that the accused is a criminal street gang member or associate
as defined in RCW 9.94A.030, the court shall make a finding of fact of
the special allegation, or if a jury trial is had, the jury shall, if
it finds the defendant guilty, also find a special verdict as to
whether or not the accused was a criminal street gang member or
associate during the commission of the crime.
Sec. 17 RCW 9.94A.850 and 2005 c 282 s 19 are each 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 administrative office
of the courts shall provide the commission with available data on
diversion, including the use of youth court programs, 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,
and, if available, the impact that diversions, such as youth courts,
have on racial disproportionality in juvenile prosecution,
adjudication, and 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 restitution, and a fine.
(4) The standard sentence ranges of total and partial confinement
under this chapter, except as provided in RCW 9.94A.517, 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.510, 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.715 for crimes committed on or
after July 1, 2000.)) Not later than December 31 of each year, the
commission may propose modifications to the community custody ranges to
be included in sentences under RCW 9.94A.701. 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. 18 RCW 9.94B.030 and 1988 c 153 s 8 are each amended to read
as follows:
If the offender violates any condition of postrelease supervision,
a hearing may be conducted in the same manner as provided in RCW
((9.94A.634)) 9.94B.040. Jurisdiction shall be with the court of the
county in which the offender was sentenced. However, the court may
order a change of venue to the offender's county of residence or where
the violation occurred, for the purpose of holding a violation hearing.
After the hearing, the court may order the offender to be confined
for up to sixty days per violation in the county jail. Reimbursement
to a city or county for the care of offenders who are detained solely
for violating a condition of postrelease supervision shall be under RCW
70.48.440. A county shall be reimbursed for indigent defense costs for
offenders who are detained solely for violating a condition of
postrelease supervision in accordance with regulations to be
promulgated by the office of financial management. An offender may be
held in jail at state expense pending the hearing, and any time served
while awaiting the hearing shall be credited against confinement
imposed for a violation. The court shall retain jurisdiction for the
purpose of holding the violation hearing and imposing a sanction.
Sec. 19 RCW 9.94B.060 and 2003 c 379 s 5 are each amended to read
as follows:
Except for persons sentenced under RCW ((9.94A.700)) 9.94B.050(2)
or ((9.94A.710)) 9.94B.070, 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.411(2), or any
felony offense under chapter 69.50 or 69.52 RCW not sentenced under RCW
9.94A.660, 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.728 (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.728 (1)
and (2). Any period of community custody actually served shall be
credited against the community placement portion of the sentence.
Except as provided in RCW 9.94A.501, the department shall supervise any
sentence of community placement or community custody imposed under this
section.
Sec. 20 RCW 9.94B.070 and 2000 c 28 s 24 are each amended to read
as follows:
(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.728, 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 RCW ((9.94A.700)) 9.94B.050(4) and may include those
provided for in RCW ((9.94A.700)) 9.94B.050(5). 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 RCW ((9.94A.720)) 9.94A.704.
(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.631 and may be punishable as contempt of
court as provided for in RCW 7.21.040.
Sec. 21 RCW 9.95.011 and 2007 c 363 s 1 are each amended to read
as follows:
(1) When the court commits a convicted person to the department of
corrections on or after July 1, 1986, for an offense committed before
July 1, 1984, the court shall, at the time of sentencing or revocation
of probation, fix the minimum term. The term so fixed shall not exceed
the maximum sentence provided by law for the offense of which the
person is convicted.
The court shall attempt to set the minimum term reasonably
consistent with the purposes, standards, and sentencing ranges adopted
under RCW 9.94A.850, but the court is subject to the same limitations
as those placed on the board under RCW 9.92.090, 9.95.040 (1) through
(4), 9.95.115, 9A.32.040, 9A.44.045, and chapter 69.50 RCW. The
court's minimum term decision is subject to review to the same extent
as a minimum term decision by the parole board before July 1, 1986.
Thereafter, the expiration of the minimum term set by the court
minus any time credits earned under RCW 9.95.070 and 9.95.110
constitutes the parole eligibility review date, at which time the board
may consider the convicted person for parole under RCW 9.95.100 and
9.95.110 and chapter 72.04A RCW. Nothing in this section affects the
board's authority to reduce or increase the minimum term, once set by
the court, under RCW 9.95.040, 9.95.052, 9.95.055, 9.95.070, 9.95.080,
9.95.100, 9.95.115, 9.95.125, or 9.95.047.
(2)(a) Except as provided in (b) of this subsection, not less than
ninety days prior to the expiration of the minimum term of a person
sentenced under RCW ((9.94A.712)) 9.94A.507, for a sex offense
committed on or after September 1, 2001, less any time credits
permitted by statute, the board shall review the person for conditional
release to community custody as provided in RCW 9.95.420. If the board
does not release the person, it shall set a new minimum term not to
exceed an additional five years. The board shall review the person
again not less than ninety days prior to the expiration of the new
minimum term.
(b) If at the time a person sentenced under RCW ((9.94A.712))
9.94A.507 for a sex offense committed on or after September 1, 2001,
arrives at a department of corrections facility, the offender's minimum
term has expired or will expire within one hundred twenty days of the
offender's arrival, then no later than one hundred twenty days after
the offender's arrival at a department of corrections facility, but
after the board receives the results from the end of sentence review
process and the recommendations for additional or modified conditions
of community custody from the department, the board shall review the
person for conditional release to community custody as provided in RCW
9.95.420. If the board does not release the person, it shall set a new
minimum term not to exceed an additional five years. The board shall
review the person again not less than ninety days prior to the
expiration of the new minimum term.
(c) In setting a new minimum term, the board may consider the
length of time necessary for the offender to complete treatment and
programming as well as other factors that relate to the offender's
release under RCW 9.95.420. The board's rules shall permit an offender
to petition for an earlier review if circumstances change or the board
receives new information that would warrant an earlier review.
Sec. 22 RCW 9.95.017 and 2008 c 231 s 40 are each amended to read
as follows:
(1) The board shall cause to be prepared criteria for duration of
confinement, release on parole, and length of parole for persons
committed to prison for crimes committed before July 1, 1984.
The proposed criteria should take into consideration RCW
9.95.009(2). Before submission to the governor, the board shall
solicit comments and review on their proposed criteria for parole
release.
(2) Persons committed to the department of corrections and who are
under the authority of the board for crimes committed on or after
September 1, 2001, are subject to the provisions for duration of
confinement, release to community custody, and length of community
custody established in RCW ((9.94A.712)) 9.94A.507, 9.94A.704,
72.09.335, and 9.95.420 through 9.95.440.
Sec. 23 RCW 9.95.055 and 2003 c 218 s 3 are each amended to read
as follows:
The indeterminate sentence review board is hereby granted
authority, in the event of a declaration by the governor that a war
emergency exists, including a general mobilization, and for the
duration thereof only, to reduce downward the minimum term, as set by
the board, of any inmate under the jurisdiction of the board confined
in a state correctional facility, who will be accepted by and inducted
into the armed services: PROVIDED, That a reduction downward shall not
be made under this section for those inmates who: (1) Are confined for
(a) treason; (b) murder in the first degree; or (c) rape of a child in
the first degree where the victim is under ten years of age or an
equivalent offense under prior law; (2) are being considered for civil
commitment as a sexually violent predator under chapter 71.09 RCW; or
(3) were sentenced under RCW ((9.94A.712)) 9.94A.507 for a crime
committed on or after September 1, 2001.
Sec. 24 RCW 9.95.070 and 2003 c 218 s 4 are each amended to read
as follows:
(1) Every prisoner, convicted of a crime committed before July 1,
1984, who has a favorable record of conduct at a state correctional
institution, and who performs in a faithful, diligent, industrious,
orderly and peaceable manner the work, duties, and tasks assigned to
him or her to the satisfaction of the superintendent of the
institution, and in whose behalf the superintendent of the institution
files a report certifying that his or her conduct and work have been
meritorious and recommending allowance of time credits to him or her,
shall upon, but not until, the adoption of such recommendation by the
indeterminate sentence review board, be allowed time credit reductions
from the term of imprisonment fixed by the board.
(2) Offenders sentenced under RCW ((9.94A.712)) 9.94A.507 for a
crime committed on or after September 1, 2001, are subject to the
earned release provisions for sex offenders established in RCW
9.94A.728.
Sec. 25 RCW 9.95.090 and 2001 2nd sp.s. c 12 s 329 are each
amended to read as follows:
(1) The board shall require of every able bodied offender confined
in a state correctional institution for a crime committed before July
1, 1984, as many hours of faithful labor in each and every day during
his or her term of imprisonment as shall be prescribed by the rules and
regulations of the institution in which he or she is confined.
(2) Offenders sentenced under RCW ((9.94A.712)) 9.94A.507 for
crimes committed on or after July 1, 2001, shall perform work or other
programming as required by the department of corrections during their
term of confinement.
Sec. 26 RCW 9.95.110 and 2008 c 231 s 42 are each amended to read
as follows:
(1) The board may permit an offender convicted of a crime committed
before July 1, 1984, to leave the buildings and enclosures of a state
correctional institution on parole, after such convicted person has
served the period of confinement fixed for him or her by the board,
less time credits for good behavior and diligence in work: PROVIDED,
That in no case shall an inmate be credited with more than one-third of
his or her sentence as fixed by the board.
The board may establish rules and regulations under which an
offender may be allowed to leave the confines of a state correctional
institution on parole, and may return such person to the confines of
the institution from which he or she was paroled, at its discretion.
(2) The board may permit an offender convicted of a crime committed
on or after September 1, 2001, and sentenced under RCW ((9.94A.712))
9.94A.507, to leave a state correctional institution on community
custody according to the provisions of RCW ((9.94A.712)) 9.94A.507,
9.94A.704, 72.09.335, and 9.95.420 through 9.95.440. The person may be
returned to the institution following a violation of his or her
conditions of release to community custody pursuant to the hearing
provisions of RCW 9.95.435.
Sec. 27 RCW 9.95.121 and 2001 2nd sp.s. c 12 s 334 are each
amended to read as follows:
(1) For offenders convicted of crimes committed before July 1,
1984, within fifteen days from the date of notice to the department of
corrections of the arrest and detention of the alleged parole violator,
he or she shall be personally served by a state community corrections
officer with a copy of the factual allegations of the violation of the
conditions of parole, and, at the same time shall be advised of his or
her right to an on-site parole revocation hearing and of his or her
rights and privileges as provided in RCW 9.95.120 through 9.95.126.
The alleged parole violator, after service of the allegations of
violations of the conditions of parole and the advice of rights may
waive the on-site parole revocation hearing as provided in RCW
9.95.120, and admit one or more of the alleged violations of the
conditions of parole. If the board accepts the waiver it shall either,
(a) reinstate the parolee on parole under the same or modified
conditions, or (b) revoke the parole of the parolee and enter an order
of parole revocation and return to state custody. A determination of
a new minimum sentence shall be made within thirty days of return to
state custody which shall not exceed the maximum sentence as provided
by law for the crime of which the parolee was originally convicted or
the maximum fixed by the court.
If the waiver made by the parolee is rejected by the board it shall
hold an on-site parole revocation hearing under the provisions of RCW
9.95.120 through 9.95.126.
(2) Offenders sentenced under RCW ((9.94A.712)) 9.94A.507 are
subject to the violation hearing process established in RCW 9.95.435.
Sec. 28 RCW 9.95.122 and 2001 2nd sp.s. c 12 s 335 are each
amended to read as follows:
(1) At any on-site parole revocation hearing for a person convicted
of a crime committed before July 1, 1984, the alleged parole violator
shall be entitled to be represented by an attorney of his or her own
choosing and at his or her own expense, except, upon the presentation
of satisfactory evidence of indigency and the request for the
appointment of an attorney by the alleged parole violator, the board
may cause the appointment of an attorney to represent the alleged
parole violator to be paid for at state expense, and, in addition, the
board may assume all or such other expenses in the presentation of
evidence on behalf of the alleged parole violator as it may have
authorized: PROVIDED, That funds are available for the payment of
attorneys' fees and expenses. Attorneys for the representation of
alleged parole violators in on-site hearings shall be appointed by the
superior courts for the counties wherein the on-site parole revocation
hearing is to be held and such attorneys shall be compensated in such
manner and in such amount as shall be fixed in a schedule of fees
adopted by rule of the board.
(2) The rights of offenders sentenced under RCW ((9.94A.712))
9.94A.507 are defined in RCW 9.95.435.
Sec. 29 RCW 9.95.140 and 2001 2nd sp.s. c 12 s 341 are each
amended to read as follows:
(1) The board shall cause a complete record to be kept of every
prisoner under the jurisdiction of the board released on parole or
community custody. Such records shall be organized in accordance with
the most modern methods of filing and indexing so that there will be
always immediately available complete information about each such
prisoner. Subject to information sharing provisions related to
mentally ill offenders, the end of sentence review committee, and the
department of corrections, the board may make rules as to the privacy
of such records and their use by others than the board and its staff.
Sex offenders convicted of crimes committed before July 1, 1984, who
are under the board's jurisdiction shall be subject to the
determinations of the end of sentence review committee regarding risk
level and subject to sex offender registration and community
notification. The board shall be immune from liability for the release
of information concerning sex offenders as provided in RCW 4.24.550.
The superintendents of state correctional facilities and all
officers and employees thereof and all other public officials shall at
all times cooperate with the board and furnish to the board, its
officers, and employees such information as may be necessary to enable
it to perform its functions, and such superintendents and other
employees shall at all times give the members of the board, its
officers, and employees free access to all prisoners confined in the
state correctional facilities.
(2) Offenders sentenced under RCW ((9.94A.712)) 9.94A.507 shall be
subject to the determinations of the end of sentence review committee
regarding risk level and subject to sex offender registration and
community notification.
(3) The end of sentence review committee shall make law enforcement
notifications for offenders under board jurisdiction on the same basis
that it notifies law enforcement regarding offenders sentenced under
chapter 9.94A RCW for crimes committed after July 1, 1984.
Sec. 30 RCW 9.95.425 and 2001 2nd sp.s. c 12 s 307 are each
amended to read as follows:
(1) Whenever the board or a community corrections officer of this
state has reason to believe an offender released under RCW 9.95.420 has
violated a condition of community custody or the laws of this state,
any community corrections officer may arrest or cause the arrest and
detention of the offender pending a determination by the board whether
sanctions should be imposed or the offender's community custody should
be revoked. The community corrections officer shall report all facts
and circumstances surrounding the alleged violation to the board, with
recommendations.
(2) If the board or the department causes the arrest or detention
of an offender for a violation that does not amount to a new crime and
the offender is arrested or detained by local law enforcement or in a
local jail, the board or department, whichever caused the arrest or
detention, shall be financially responsible for local costs. Jail bed
costs shall be allocated at the rate established under RCW
9.94A.740(((3))).
Sec. 31 RCW 9.95.900 and 2001 2nd sp.s. c 12 s 353 are each
amended to read as follows:
(1) Except as provided in subsection (2) of this section, the
following sections of law do not apply to any felony offense committed
on or after July 1, 1984: RCW 9.95.010, 9.95.011, 9.95.013, 9.95.015,
9.95.017, 9.95.040, 9.95.045, 9.95.047, 9.95.052, 9.95.080, 9.95.100,
9.95.115, 9.95.116, 9.95.120, 9.95.124, 9.95.125, 9.95.130, 9.95.190,
9.95.200, 9.95.204, 9.95.206, 9.95.210, 9.95.212, 9.95.214, 9.95.220,
9.95.230, 9.95.240, 9.95.250, 9.95.260, 9.95.265, 9.95.280, 9.95.290,
9.95.310, 9.95.320, 9.95.330, 9.95.340, 9.95.350, 9.95.360, 9.95.370,
72.04A.070, and 72.04A.080.
(2) The following sections apply to any felony offense committed
before July 1, 1984, and to any offense sentenced under RCW
((9.94A.712)) 9.94A.507 and committed on or after July 1, 2001: RCW
9.95.003, 9.95.005, 9.95.007, 9.95.020, 9.95.030, 9.95.031, 9.95.032,
9.95.055, 9.95.060, 9.95.062, 9.95.063, 9.95.064, 9.95.070, 9.95.090,
9.95.110, 9.95.121, 9.95.122, 9.95.123, 9.95.126, 9.95.140, 9.95.150,
9.95.160, 9.95.170, 9.95.300, and 9.96.050.
Sec. 32 RCW 9A.76.115 and 2001 2nd sp.s. c 12 s 360 are each
amended to read as follows:
(1) A person is guilty of sexually violent predator escape if:
(a) Having been found to be a sexually violent predator and
confined to the special commitment center or another secure facility
under court order, the person escapes from the secure facility;
(b) Having been found to be a sexually violent predator and being
under an order of conditional release, the person leaves or remains
absent from the state of Washington without prior court authorization;
or
(c) Having been found to be a sexually violent predator and being
under an order of conditional release, the person: (i) Without
authorization, leaves or remains absent from his or her residence,
place of employment, educational institution, or authorized outing;
(ii) tampers with his or her electronic monitoring device or removes it
without authorization; or (iii) escapes from his or her escort.
(2) Sexually violent predator escape is a class A felony with a
minimum sentence of sixty months, and shall be sentenced under RCW
((9.94A.712)) 9.94A.507.
Sec. 33 RCW 13.40.135 and 1997 c 338 s 23 are each amended to
read as follows:
(1) The prosecuting attorney shall file a special allegation of
sexual motivation in every juvenile offense other than sex offenses as
defined in RCW 9.94A.030(((33) (a) or (c))) when sufficient admissible
evidence exists, which, when considered with the most plausible,
reasonably consistent defense that could be raised under the evidence,
would justify a finding of sexual motivation by a reasonable and
objective fact finder.
(2) In a juvenile case wherein there has been a special allegation
the state shall prove beyond a reasonable doubt that the juvenile
committed the offense with a sexual motivation. The court shall make
a finding of fact of whether or not the sexual motivation was present
at the time of the commission of the offense. This finding shall not
be applied to sex offenses as defined in RCW 9.94A.030(((33)(a) or
(c))).
(3) The prosecuting attorney shall not withdraw the special
allegation of "sexual motivation" without approval of the court through
an order of dismissal. The court shall not dismiss the special
allegation unless it finds that such an order is necessary to correct
an error in the initial charging decision or unless there are
evidentiary problems which make proving the special allegation
doubtful.
Sec. 34 RCW 72.09.335 and 2001 2nd sp.s. c 12 s 305 are each
amended to read as follows:
The department shall provide offenders sentenced under RCW
((9.94A.712)) 9.94A.507 with the opportunity for sex offender treatment
during incarceration.
Sec. 35 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)) 72.09.712(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)))
9.94A.703(1)(c), 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)) 9.94B.050(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.
Sec. 36 RCW 72.09.370 and 2001 2nd sp.s. c 12 s 362 are each
amended to read as follows:
(1) The secretary shall identify offenders in confinement or
partial confinement who: (a) Are reasonably believed to be dangerous
to themselves or others; and (b) have a mental disorder. In
determining an offender's dangerousness, the secretary shall consider
behavior known to the department and factors, based on research, that
are linked to an increased risk for dangerousness of mentally ill
offenders and shall include consideration of an offender's chemical
dependency or abuse.
(2) Prior to release of an offender identified under this section,
a team consisting of representatives of the department of corrections,
the division of mental health, and, as necessary, the indeterminate
sentence review board, other divisions or administrations within the
department of social and health services, specifically including the
division of alcohol and substance abuse and the division of
developmental disabilities, the appropriate regional support network,
and the providers, as appropriate, shall develop a plan, as determined
necessary by the team, for delivery of treatment and support services
to the offender upon release. The team may include a school district
representative for offenders under the age of twenty-one. The team
shall consult with the offender's counsel, if any, and, as appropriate,
the offender's family and community. The team shall notify the crime
victim/witness program, which shall provide notice to all people
registered to receive notice under RCW ((9.94A.612)) 72.09.712 of the
proposed release plan developed by the team. Victims, witnesses, and
other interested people notified by the department may provide
information and comments to the department on potential safety risk to
specific individuals or classes of individuals posed by the specific
offender. The team may recommend: (a) That the offender be evaluated
by the ((county)) designated mental health professional, as defined in
chapter 71.05 RCW; (b) department-supervised community treatment; or
(c) voluntary community mental health or chemical dependency or abuse
treatment.
(3) Prior to release of an offender identified under this section,
the team shall determine whether or not an evaluation by a county
designated mental health professional is needed. If an evaluation is
recommended, the supporting documentation shall be immediately
forwarded to the appropriate county designated mental health
professional. The supporting documentation shall include the
offender's criminal history, history of judicially required or
administratively ordered involuntary antipsychotic medication while in
confinement, and any known history of involuntary civil commitment.
(4) If an evaluation by a county designated mental health
professional is recommended by the team, such evaluation shall occur
not more than ten days, nor less than five days, prior to release.
(5) A second evaluation by a county designated mental health
professional shall occur on the day of release if requested by the
team, based upon new information or a change in the offender's mental
condition, and the initial evaluation did not result in an emergency
detention or a summons under chapter 71.05 RCW.
(6) If the county designated mental health professional determines
an emergency detention under chapter 71.05 RCW is necessary, the
department shall release the offender only to a state hospital or to a
consenting evaluation and treatment facility. The department shall
arrange transportation of the offender to the hospital or facility.
(7) If the county designated mental health professional believes
that a less restrictive alternative treatment is appropriate, he or she
shall seek a summons, pursuant to the provisions of chapter 71.05 RCW,
to require the offender to appear at an evaluation and treatment
facility. If a summons is issued, the offender shall remain within the
corrections facility until completion of his or her term of confinement
and be transported, by corrections personnel on the day of completion,
directly to the identified evaluation and treatment facility.
(8) The secretary shall adopt rules to implement this section.
Sec. 37 RCW 72.09.714 and 1989 c 30 s 2 are each amended to read
as follows:
The department of corrections shall provide the victims and next of
kin in the case of a homicide and witnesses involved in violent offense
cases or sex offenses as defined by RCW 9.94A.030 where a judgment and
sentence was entered after October 1, 1983, a statement of the rights
of victims and witnesses to request and receive notification under RCW
((9.94A.612)) 72.09.712 and ((9.94A.616)) 72.09.716.
Sec. 38 RCW 72.09.716 and 1985 c 346 s 3 are each amended to read
as follows:
Requests for notification under RCW ((9.94A.612)) 72.09.712 shall
be made by sending a written request by certified mail directly to the
department of corrections and giving the defendant's name, the name of
the county in which the trial took place, and the month of the trial.
Notification information and necessary forms shall be available through
the department of corrections, county prosecutors' offices, and other
agencies as deemed appropriate by the department of corrections.
Sec. 39 RCW 72.09.718 and 1985 c 346 s 4 are each amended to read
as follows:
The notification requirements of RCW ((9.94A.612)) 72.09.712 are in
addition to any requirements in RCW 43.43.745 or other law.
Sec. 40 RCW 72.09.720 and 1985 c 346 s 7 are each amended to read
as follows:
Civil liability shall not result from failure to provide notice
required under RCW ((9.94A.612)) 72.09.712 through ((9.94A.618))
72.09.718, 9.94A.030, and 43.43.745 unless the failure is the result of
gross negligence.
NEW SECTION. Sec. 41 (1) RCW 9.94A.602 and 9.94A.605 are each
recodified as sections in chapter 9.94A RCW under the subchapter
heading "special allegations."
(2) RCW 9.94A.771 is recodified as a section in chapter 9.94B RCW.
NEW SECTION. Sec. 42 The following acts or parts of acts are
each repealed:
(1) RCW 9.94A.545 (Community custody) and 2008 c 276 s 304, 2006 c
128 s 4, 2003 c 379 s 8, 2000 c 28 s 13, 1999 c 196 s 10, 1988 c 143 s
23, & 1984 c 209 s 22; and
(2) RCW 9.94A.715 (Community custody for specified offenders--Conditions) and 2008 c 276 s 305; 2006 c 130 s 2, 2006 c 128 s 5, 2003
c 379 s 6, 2001 2nd sp.s. c 12 s 302, 2001 c 10 s 5, & 2000 c 28 s 25.
NEW SECTION. Sec. 43 This act takes effect August 1, 2009.