BILL REQ. #: H-2847.1
| State of Washington | 61st Legislature | 2009 Regular Session |
AN ACT Relating to community custody; amending RCW 9.94A.701, 9.94A.707, and 9.94A.850; reenacting and amending RCW 9.94A.030 and 9.94A.715; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 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:
(a) 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((.)); or
(6) "Community custody range" means
(b) The ((minimum and maximum)) period of community custody
included as part of a sentence under RCW 9.94A.715, as established by
the commission or the legislature under RCW 9.94A.850.
(((7))) (6) "Community protection zone" means the area within eight
hundred eighty feet of the facilities and grounds of a public or
private school.
(((8))) (7) "Community restitution" means compulsory service,
without compensation, performed for the benefit of the community by the
offender.
(((9))) (8) "Confinement" means total or partial confinement.
(((10))) (9) "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))) (10) "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))) (11) "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))) (12) "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))) (13) "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))) (14) "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))) (15) "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))) (16) "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))) (17) "Department" means the department of corrections.
(((19))) (18) "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))) (19) "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))) (20) "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))) (21) "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))) (22) "Earned release" means earned release from
confinement as provided in RCW 9.94A.728.
(((24))) (23) "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))) (24) "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))) (25) "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))) (26) "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))) (27) "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))) (28) "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))) (29) "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;
(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))) (30) "Nonviolent offense" means an offense which is not a
violent offense.
(((32))) (31) "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))) (32) "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))) (33) "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))) (34) "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))) (34)(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))) (35) "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))) (36) "Private school" means a school regulated under
chapter 28A.195 or 28A.205 RCW.
(((38))) (37) "Public school" has the same meaning as in RCW
28A.150.010.
(((39))) (38) "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))) (39) "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))) (40) "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))) (41) "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))) (42) "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))) (43) "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))) (44) "Standard sentence range" means the sentencing
court's discretionary range in imposing a nonappealable sentence.
(((46))) (45) "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))) (46) "Stranger" means that the victim did not know the
offender twenty-four hours before the offense.
(((48))) (47) "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))) (48) "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))) (49) "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))) (50) "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))) (51) "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))) (52) "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))) (53) "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. 2 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)) 9.94A.715:
(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) 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))
9.94A.715.
(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.
Sec. 3 RCW 9.94A.715 and 2008 c 276 s 305 are each reenacted and
amended to read as follows:
(1) When a court sentences a person to the custody of the
department for a sex offense not sentenced under RCW ((9.94A.712,))
9.94A.507, for a serious violent offense, or when a court sentences a
person to a term of confinement of one year or less for a violation of
RCW 9A.44.130(11)(a) committed on or after June 7, 2006, the court
shall, in addition to the other terms of the sentence, sentence the
offender to community custody for three years. When a court sentences
a person to the custody of the department for a violent offense that is
not considered a serious violent offense, any crime against persons
under RCW 9.94A.411(2), 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, or a felony offense under chapter 69.50 or
69.52 RCW, committed on or after July 1, 2000, ((or when a court
sentences a person to a term of confinement of one year or less for a
violation of RCW 9A.44.130(11)(a) committed on or after June 7, 2006,))
the court shall in addition to the other terms of the sentence,
sentence the offender to 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)) one year. The community custody shall begin: (a) Upon
completion of the term of confinement; or (b) ((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); or (c))) with regard to
offenders sentenced under RCW 9.94A.660, upon failure to complete or
administrative termination from the special drug offender sentencing
alternative program. Except as provided in RCW 9.94A.501, the
department shall supervise any sentence of community custody imposed
under this section.
(2)(a) Unless a condition is waived by the court, the conditions of
community custody shall include those provided for in RCW 9.94A.700(4).
The conditions may also include those provided for in RCW 9.94A.700(5).
The court may also order the offender to participate in rehabilitative
programs or otherwise perform affirmative conduct reasonably related to
the circumstances of the offense, the offender's risk of reoffending,
or the safety of the community, and the department shall enforce such
conditions pursuant to subsection (((6))) (5) of this section.
(b) As part of any sentence that includes a term of community
custody imposed under this subsection, the court shall also require the
offender to comply with any conditions imposed by the department under
RCW 9.94A.720. The department shall assess the offender's risk of
reoffense and may establish and modify additional conditions of the
offender's community custody based upon the risk to community safety.
In addition, the department may require the offender to participate in
rehabilitative programs, or otherwise perform affirmative conduct, and
to obey all laws. The department may impose electronic monitoring as
a condition of community custody for an offender sentenced to a term of
community custody under this section pursuant to a conviction for a sex
offense. Within the resources made available by the department for
this purpose, the department shall carry out any electronic monitoring
imposed under this section 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.
(c) The department may not impose conditions that are contrary to
those ordered by the court and may not contravene or decrease court
imposed conditions. The department shall notify the offender in
writing of any such conditions or modifications. In setting,
modifying, and enforcing conditions of community custody, the
department shall be deemed to be performing a quasi-judicial function.
(3) If an offender violates conditions imposed by the court or the
department pursuant to this section during community custody, the
department may transfer the offender to a more restrictive confinement
status and impose other available sanctions as provided in RCW
9.94A.737 and 9.94A.740.
(4) ((Except for terms of community custody under RCW 9.94A.670,
the department shall discharge the offender from community custody on
a date determined by the department, which the department may modify,
based on risk and performance of the offender, within the range or at
the end of the period of earned release, whichever is later.)) At any time prior to the completion or termination 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. If the court
extends a condition beyond the expiration of the term of community
custody, the department is not responsible for supervision of the
offender's compliance with the condition.
(5)
(((6))) (5) 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.
(((7))) (6) 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 any of the
following: (a) The crime of conviction; (b) the offender's risk of
reoffending; or (c) the safety of the community.
Sec. 4 RCW 9.94A.707 and 2008 c 231 s 12 are each amended to read
as follows:
(1) Community custody shall begin: (a) Upon completion of the term
of confinement; (b) at such time as the offender is transferred to
community custody in lieu of earned release in accordance with RCW
9.94A.728 (1) or (2); or (c) at the time of sentencing if no term of
confinement is ordered.
(2) When an offender is sentenced to community custody, the
offender is subject to the conditions of community custody as of the
date of sentencing, unless otherwise ordered by the court.
(((3) When an offender is sentenced to a community custody range
pursuant to RCW 9.94A.701 (1) or (2), the department shall discharge
the offender from community custody on a date determined by the
department, which the department may modify, based on risk and
performance of the offender, within the range or at the end of the
period of earned release, whichever is later.))
Sec. 5 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 ranges. 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.)) The commission shall exercise its duties under this section
in conformity with chapter 34.05 RCW.
(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)
NEW SECTION. Sec. 6 This act takes effect August 1, 2009.