BILL REQ. #:  H-0912.1 

Read first time 01/22/09.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to ending sentences of life imprisonment without the possibility of release or parole for certain juveniles; amending RCW 10.95.030, 9.94A.537, and 10.95.020; and reenacting and amending RCW 9A.20.021.

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

Sec. 1   RCW 10.95.030 and 1993 c 479 s 1 are each amended to read as follows:
     (1) Except as provided in subsections (2) and (3) of this section, any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer and the indeterminate sentence review board or its successor may not parole such prisoner nor reduce the period of confinement in any manner whatsoever including but not limited to any sort of good-time calculation. The department of social and health services or its successor or any executive official may not permit such prisoner to participate in any sort of release or furlough program.
     (2) If, pursuant to a special sentencing proceeding held under RCW 10.95.050, the trier of fact finds that there are not sufficient mitigating circumstances to merit leniency, the sentence shall be death. In no case, however, shall a person be sentenced to death if the person was mentally retarded at the time the crime was committed, under the definition of mental retardation set forth in (a) of this subsection. A diagnosis of mental retardation shall be documented by a licensed psychiatrist or licensed psychologist designated by the court, who is an expert in the diagnosis and evaluation of mental retardation. The defense must establish mental retardation by a preponderance of the evidence and the court must make a finding as to the existence of mental retardation.
     (a) "Mentally retarded" means the individual has: (i) Significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period.
     (b) "General intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for the purpose of assessing intellectual functioning.
     (c) "Significantly subaverage general intellectual functioning" means intelligence quotient seventy or below.
     (d) "Adaptive behavior" means the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for his or her age.
     (e) "Developmental period" means the period of time between conception and the eighteenth birthday.
     (3)(a) After the effective date of this act, a person who was under seventeen years of age at the time the crime was committed may not be sentenced to life without the possibility of release or parole.
     (b) In any case where a person was sentenced to life without the possibility of release or parole before the effective date of this act and the person was under seventeen at the time the crime was committed, the person shall be granted a resentencing hearing. The prosecuting attorney for the county in which the person was sentenced shall, and the person may, make a motion for relief from the sentence to the original sentencing court. The sentencing court shall grant the motion if it finds that the person was sentenced to life without the possibility of release or parole and was under the age of seventeen at the time the crime was committed. The court shall immediately set an expedited date for resentencing. At resentencing, the court shall sentence the person within the standard range established in RCW 9.94A.510 for offense seriousness level XV unless the court determines that a departure from the guidelines is appropriate pursuant to RCW 9.94A.535.

Sec. 2   RCW 9.94A.537 and 2007 c 205 s 2 are each amended to read as follows:
     (1) At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.
     (2) In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.
     (3) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.
     (4) Evidence regarding any facts supporting aggravating circumstances under RCW 9.94A.535(3) (a) through (y) shall be presented to the jury during the trial of the alleged crime, unless the jury has been impaneled solely for resentencing, or unless the state alleges the aggravating circumstances listed in RCW 9.94A.535(3) (e)(iv), (h)(i), (o), or (t). If one of these aggravating circumstances is alleged, the trial court may conduct a separate proceeding if the evidence supporting the aggravating fact is not part of the res geste of the charged crime, if the evidence is not otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence to the aggravated fact is substantially outweighed by its prejudicial effect on the jury's ability to determine guilt or innocence for the underlying crime.
     (5) If the superior court conducts a separate proceeding to determine the existence of aggravating circumstances listed in RCW 9.94A.535(3) (e)(iv), (h)(i), (o), or (t), the proceeding shall immediately follow the trial on the underlying conviction, if possible. If any person who served on the jury is unable to continue, the court shall substitute an alternate juror.
     (6) If the jury finds, unanimously and beyond a reasonable doubt, one or more of the facts alleged by the state in support of an aggravated sentence, the court may sentence the offender pursuant to RCW 9.94A.535 to a term of confinement up to the maximum allowed under RCW 9A.20.021 for the underlying conviction if it finds, considering the purposes of this chapter, that the facts found are substantial and compelling reasons justifying an exceptional sentence, except that no individual under seventeen years of age at the time the offense was committed may be sentenced to life without the possibility of release or parole.

Sec. 3   RCW 9A.20.021 and 2003 c 288 s 7 and 2003 c 53 s 63 are each reenacted and amended to read as follows:
     (1) Felony. Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following:
     (a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine, except that no individual under seventeen years of age at the time the offense was committed may be sentenced to life without the possibility of release or parole;
     (b) For a class B felony, by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by both such confinement and fine;
     (c) For a class C felony, by confinement in a state correctional institution for five years, or by a fine in an amount fixed by the court of ten thousand dollars, or by both such confinement and fine.
     (2) Gross misdemeanor. Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine.
     (3) Misdemeanor. Every person convicted of a misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, or by both such imprisonment and fine.
     (4) This section applies to only those crimes committed on or after July 1, 1984.

Sec. 4   RCW 10.95.020 and 2003 c 53 s 96 are each amended to read as follows:
     A person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, was age seventeen or older at the time the murder was committed, and one or more of the following aggravating circumstances exist:
     (1) The victim was a law enforcement officer, corrections officer, or firefighter who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing;
     (2) At the time of the act resulting in the death, the person was serving a term of imprisonment, had escaped, or was on authorized or unauthorized leave in or from a state facility or program for the incarceration or treatment of persons adjudicated guilty of crimes;
     (3) At the time of the act resulting in death, the person was in custody in a county or county-city jail as a consequence of having been adjudicated guilty of a felony;
     (4) The person committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder;
     (5) The person solicited another person to commit the murder and had paid or had agreed to pay money or any other thing of value for committing the murder;
     (6) The person committed the murder to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group;
     (7) The murder was committed during the course of or as a result of a shooting where the discharge of the firearm, as defined in RCW 9.41.010, is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge;
     (8) The victim was:
     (a) A judge; juror or former juror; prospective, current, or former witness in an adjudicative proceeding; prosecuting attorney; deputy prosecuting attorney; defense attorney; a member of the indeterminate sentence review board; or a probation or parole officer; and
     (b) The murder was related to the exercise of official duties performed or to be performed by the victim;
     (9) The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, including, but specifically not limited to, any attempt to avoid prosecution as a persistent offender as defined in RCW 9.94A.030;
     (10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;
     (11) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:
     (a) Robbery in the first or second degree;
     (b) Rape in the first or second degree;
     (c) Burglary in the first or second degree or residential burglary;
     (d) Kidnapping in the first degree; or
     (e) Arson in the first degree;
     (12) The victim was regularly employed or self-employed as a newsreporter and the murder was committed to obstruct or hinder the investigative, research, or reporting activities of the victim;
     (13) At the time the person committed the murder, there existed a court order, issued in this or any other state, which prohibited the person from either contacting the victim, molesting the victim, or disturbing the peace of the victim, and the person had knowledge of the existence of that order;
     (14) At the time the person committed the murder, the person and the victim were "family or household members" as that term is defined in RCW 10.99.020(((1))) (3), and the person had previously engaged in a pattern or practice of three or more of the following crimes committed upon the victim within a five-year period, regardless of whether a conviction resulted:
     (a) Harassment as defined in RCW 9A.46.020; or
     (b) Any criminal assault.