| Passed by the Senate April 25, 2009 YEAS 26 BRAD OWEN ________________________________________ President of the Senate Passed by the House April 21, 2009 YEAS 51 FRANK CHOPP ________________________________________ Speaker of the House of Representatives | I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is ENGROSSED SUBSTITUTE SENATE BILL 5288 as passed by the Senate and the House of Representatives on the dates hereon set forth. THOMAS HOEMANN ________________________________________ Secretary | |
| Approved May 6, 2009, 2:21 p.m., with
the exception of Section 18 which is
vetoed. CHRISTINE GREGOIRE ________________________________________ Governor of the State of Washington | May 8, 2009 Secretary of State State of Washington |
| State of Washington | 61st Legislature | 2009 Regular Session |
READ FIRST TIME 01/26/09.
AN ACT Relating to the supervision of offenders; amending RCW 9.94A.501, 9.94A.501, 9.94A.030, 9.94A.701, 9.94A.704, 9.94A.707, 9.94A.850, 9.95.220, 9.94A.633, 9.94A.737, and 9.94A.6332; amending 2008 c 231 s 6 (uncodified); reenacting and amending RCW 9.94A.030; creating new sections; repealing RCW 9.95.206 and 9.95.212; repealing 2008 c 231 s 60 (uncodified); providing an effective date; providing an expiration date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.94A.501 and 2005 c 362 s 1 are each amended to read
as follows:
(1) ((When the department performs a risk assessment pursuant to
RCW 9.94A.500, or to determine a person's conditions of supervision,
the risk assessment shall classify the offender or a probationer
sentenced in superior court into one of at least four risk categories.)) The department shall supervise every offender
convicted of a misdemeanor or gross misdemeanor offense who is
sentenced to probation in superior court, pursuant to RCW 9.92.060,
9.95.204, or 9.95.210, for an offense included in (a) and (b) of this
subsection. The superior court shall order probation for:
(2) The department shall supervise every offender sentenced to a
term of community custody, community placement, or community
supervision and every misdemeanor and gross misdemeanor probationer
ordered by a superior court to probation under the supervision of the
department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210:
(a) Whose risk assessment places that offender or probationer in
one of the two highest risk categories; or
(b) Regardless of the offender's or probationer's risk category if:
(i) The offender's or probationer's current conviction is for:
(A) A sex offense;
(B) A violent offense;
(C) A crime against persons as defined in RCW 9.94A.411;
(D) A felony that is domestic violence as defined in RCW 10.99.020;
(E) A violation of RCW 9A.52.025 (residential burglary);
(F) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.401 by manufacture or delivery or possession with
intent to deliver methamphetamine; or
(G) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.406 (delivery of a controlled substance to a minor);
(ii) The offender or probationer has a prior conviction for:
(A) A sex offense;
(B) A violent offense;
(C) A crime against persons as defined in RCW 9.94A.411;
(D) A felony that is domestic violence as defined in RCW 10.99.020;
(E) A violation of RCW 9A.52.025 (residential burglary);
(F) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.401 by manufacture or delivery or possession with
intent to deliver methamphetamine; or
(G) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.406 (delivery of a controlled substance to a minor);
(iii) The conditions of the offender's community custody, community
placement, or community supervision or the probationer's supervision
include chemical dependency treatment;
(iv) The offender
(a) Offenders convicted of fourth degree assault, violation of a
domestic violence court order pursuant to RCW 10.99.040, 10.99.050,
26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145,
and who also have a prior conviction for one or more of the following:
(i) A violent offense;
(ii) A sex offense;
(iii) A crime against a person as provided in RCW 9.94A.411;
(iv) Fourth degree assault; or
(v) Violation of a domestic violence court order; and
(b) Offenders convicted of:
(i) Sexual misconduct with a minor second degree;
(ii) Custodial sexual misconduct second degree;
(iii) Communication with a minor for immoral purposes; and
(iv) Failure to register pursuant to RCW 9A.44.130.
(2) Misdemeanor and gross misdemeanor offenders supervised by the
department pursuant to this section shall be placed on community
custody.
(3) The department shall supervise every felony offender sentenced
to community custody whose risk assessment, conducted pursuant to
subsection (6) of this section, places the offender in one of the two
highest risk categories.
(4) Notwithstanding any other provision of this section, the
department shall supervise an offender sentenced to community custody
regardless of risk classification if the offender:
(a) Has a current conviction for a sex offense;
(b) Has been identified by the department as a dangerous mentally
ill offender pursuant to RCW 72.09.370;
(c) Has an indeterminate sentence and is subject to parole pursuant
to RCW 9.95.017;
(d) Was sentenced under RCW 9.94A.650, 9.94A.660, or 9.94A.670; or
(((v) The offender)) (e) Is subject to supervision pursuant to RCW
9.94A.745.
(((3))) (5) The department is not authorized to, and may not,
supervise any offender sentenced to a term of community custody,
community placement, or community supervision or any probationer unless
the offender or probationer is one for whom supervision is required
under subsection (1), (2), (3), or (4) of this section.
(((4) This section expires July 1, 2010)) (6) The department shall
conduct a risk assessment for every felony offender sentenced to a term
of community custody, community placement, or community supervision who
may be subject to supervision under this section.
Sec. 2 RCW
9.94A.501 and 2008 c 231 s 24 are each amended to read
as follows:
(1) ((When the department performs a risk assessment pursuant to
RCW 9.94A.500, or to determine a person's conditions of supervision,
the risk assessment shall classify the offender or a probationer
sentenced in superior court into one of at least four risk categories.)) The department shall supervise every offender
convicted of a misdemeanor or gross misdemeanor offense who is
sentenced to probation in superior court, pursuant to RCW 9.92.060,
9.95.204, or 9.95.210, for an offense included in (a) and (b) of this
subsection. The superior court shall order probation for:
(2) The department shall supervise every offender sentenced to a
term of community custody and every misdemeanor and gross misdemeanor
probationer ordered by a superior court to probation under the
supervision of the department pursuant to RCW 9.92.060, 9.95.204, or
9.95.210:
(a) Whose risk assessment places that offender or probationer in
one of the two highest risk categories; or
(b) Regardless of the offender's or probationer's risk category if:
(i) The offender's or probationer's current conviction is for:
(A) A sex offense;
(B) A violent offense;
(C) A crime against persons as defined in RCW 9.94A.411;
(D) A felony that is domestic violence as defined in RCW 10.99.020;
(E) A violation of RCW 9A.52.025 (residential burglary);
(F) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.401 by manufacture or delivery or possession with
intent to deliver methamphetamine; or
(G) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.406 (delivery of a controlled substance to a minor);
(ii) The offender or probationer has a prior conviction for:
(A) A sex offense;
(B) A violent offense;
(C) A crime against persons as defined in RCW 9.94A.411;
(D) A felony that is domestic violence as defined in RCW 10.99.020;
(E) A violation of RCW 9A.52.025 (residential burglary);
(F) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.401 by manufacture or delivery or possession with
intent to deliver methamphetamine; or
(G) A violation of, or an attempt, solicitation, or conspiracy to
violate, RCW 69.50.406 (delivery of a controlled substance to a minor);
(iii) The conditions of the offender's community custody or the
probationer's supervision include chemical dependency treatment;
(iv) The offender
(a) Offenders convicted of fourth degree assault, violation of a
domestic violence court order pursuant to RCW 10.99.040, 10.99.050,
26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145,
and who also have a prior conviction for one or more of the following:
(i) A violent offense;
(ii) A sex offense;
(iii) A crime against a person as provided in RCW 9.94A.411;
(iv) Fourth degree assault; or
(v) Violation of a domestic violence court order; and
(b) Offenders convicted of:
(i) Sexual misconduct with a minor second degree;
(ii) Custodial sexual misconduct second degree;
(iii) Communication with a minor for immoral purposes; and
(iv) Failure to register pursuant to RCW 9A.44.130.
(2) Misdemeanor and gross misdemeanor offenders supervised by the
department pursuant to this section shall be placed on community
custody.
(3) The department shall supervise every felony offender sentenced
to community custody whose risk assessment, conducted pursuant to
subsection (6) of this section, classifies the offender as one who is
at a high risk to reoffend.
(4) Notwithstanding any other provision of this section, the
department shall supervise an offender sentenced to community custody
regardless of risk classification if the offender:
(a) Has a current conviction for a sex offense;
(b) Has been identified by the department as a dangerous mentally
ill offender pursuant to RCW 72.09.370;
(c) Has an indeterminate sentence and is subject to parole pursuant
to RCW 9.95.017;
(d) Was sentenced under RCW 9.94A.650, 9.94A.660, or 9.94A.670; or
(((v) The offender)) (e) Is subject to supervision pursuant to RCW
9.94A.745.
(((3))) (5) The department is not authorized to, and may not,
supervise any offender sentenced to a term of community custody or any
probationer unless the offender or probationer is one for whom
supervision is required under subsection (1), (2), (3), or (4) of this
section.
(((4) This section expires July 1, 2010)) (6) The department shall
conduct a risk assessment for every felony offender sentenced to a term
of community custody who may be subject to supervision under this
section.
Sec. 3 RCW 9.94A.030 and 2008 c 276 s 309 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
((pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670,
9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545,)) as part of a
sentence under this chapter and served in the community subject to
controls placed on the offender's movement and activities by the
department. For offenders placed on community custody for crimes
committed on or after July 1, 2000, the department shall assess the
offender's risk of reoffense and may establish and modify conditions of
community custody, in addition to those imposed by the court, based
upon the risk to community safety.
(6) "Community custody range" means 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, for crimes committed on or after July 1, 2000.
(7) "Community placement" means that period during which the
offender is subject to the conditions of community custody and/or
postrelease supervision, which begins either upon completion of the
term of confinement (postrelease supervision) or at such time as the
offender is transferred to community custody in lieu of earned release.
Community placement may consist of entirely community custody, entirely
postrelease supervision, or a combination of the two.
(8) "Community protection zone" means the area within eight hundred
eighty feet of the facilities and grounds of a public or private
school.
(9) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(10) "Community supervision" means a period of time during which a
convicted offender is subject to crime-related prohibitions and other
sentence conditions imposed by a court pursuant to this chapter or RCW
16.52.200(6) or 46.61.524. Where the court finds that any offender has
a chemical dependency that has contributed to his or her offense, the
conditions of supervision may, subject to available resources, include
treatment. For purposes of the interstate compact for out-of-state
supervision of parolees and probationers, RCW 9.95.270, community
supervision is the functional equivalent of probation and should be
considered the same as probation by other states.
(11) "Confinement" means total or partial confinement.
(12) "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.
(13) "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.
(14) "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.
(15) "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.
(16) "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.
(17) "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).
(18) "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.
(19) "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.
(20) "Department" means the department of corrections.
(21) "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 supervision, 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.
(22) "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.
(23) "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.
(24) "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.
(25) "Earned release" means earned release from confinement as
provided in RCW 9.94A.728.
(26) "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.
(27) "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.
(28) "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.
(29) "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.
(30) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private
residence subject to electronic surveillance.
(31) "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.
(32) "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.
(33) "Nonviolent offense" means an offense which is not a violent
offense.
(34) "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.
(35) "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.
(36) "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)) this section, 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)) this
section, 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.
(37) "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 (37)(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.
(38) "Postrelease supervision" is that portion of an offender's
community placement that is not community custody.
(39) "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.
(40) "Private school" means a school regulated under chapter
28A.195 or 28A.205 RCW.
(41) "Public school" has the same meaning as in RCW 28A.150.010.
(42) "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.
(43) "Risk assessment" means the application of ((an objective))
the risk instrument ((supported by research and adopted by))
recommended to 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)) by the Washington state institute for public policy as
having the highest degree of predictive accuracy for assessing an
offender's risk of reoffense.
(44) "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.
(45) "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.
(46) "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.
(47) "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.
(48) "Standard sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(49) "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.
(50) "Stranger" means that the victim did not know the offender
twenty-four hours before the offense.
(51) "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.
(52) "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.
(53) "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.
(54) "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.
(55) "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.
(56) "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.
(57) "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. 4 RCW 9.94A.030 and 2009 c 28 s 4 are each 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 under this chapter 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.701, as established by the commission or the legislature under
RCW 9.94A.850.)) "Community protection zone" means the area within eight
hundred eighty feet of the facilities and grounds of a public or
private school.
(7)
(((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 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. In addition, for the purpose of community custody
requirements under this chapter, "offender" also means a misdemeanor or
gross misdemeanor probationer convicted of an offense included in RCW
9.94A.501(1) and ordered by a superior court to probation under the
supervision of the department pursuant to RCW 9.92.060, 9.95.204, or
9.95.210. 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)) this section, 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)) this
section, 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)) the risk instrument ((supported by research and adopted
by)) recommended to 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)) by the Washington state institute for public policy as
having the highest degree of predictive accuracy for assessing an
offender's risk of reoffense.
(((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. 5 RCW 9.94A.701 and 2009 c 28 s 10 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)), in addition to the other
terms of the sentence, sentence the offender to community custody for
three years:
(a) A sex offense not sentenced under RCW 9.94A.507;
(b) A serious violent offense; or
(c) ((A crime against persons under RCW 9.94A.411(2);)) A
violation of RCW 9A.44.130(11)(a) committed on or after June 7, 2006,
when a court sentences the person to a term of confinement of one year
or less.
(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)) A
court shall, in addition to the other terms of the sentence, sentence
an offender to community custody for eighteen months when the court
sentences the person to the custody of the department for a violent
offense that is not considered a serious violent offense.
(3) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for one year when the court
sentences the person to the custody of the department for:
(a) Any crime against persons under RCW 9.94A.411(2);
(b) 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
(c) A felony offense under chapter 69.50 or 69.52 RCW, committed on
or after July 1, 2000.
(((3))) (4) 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))) (5) 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))) (6) If an offender is sentenced to a work ethic camp, the
court shall impose community custody as provided in RCW 9.94A.690.
(((6))) (7) If a sex offender is sentenced as a nonpersistent
offender pursuant to RCW 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)) (8) The term of community custody
specified by this section shall be reduced by the court whenever an
offender's standard range term of confinement in combination with the
term of community custody exceeds the statutory maximum for the crime
as provided in RCW 9A.20.021.
Sec. 6 RCW 9.94A.704 and 2009 c 28 s 12 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.507, the department shall assess the offender's risk of
recidivism and shall recommend to the board any additional or modified
conditions based upon the offender's risk to community safety and may
recommend affirmative conduct or electronic monitoring consistent with
subsections (4) through (6) of this section.
(b) The board may impose conditions in addition to court-ordered
conditions. The board must consider and may impose department-recommended conditions.
(c) By the close of the next business day, after receiving notice
of a condition imposed by the board or the department, an offender may
request an administrative hearing under rules adopted by the board.
The condition shall remain in effect unless the hearing examiner finds
that it is not reasonably related to any of the following:
(i) The crime of conviction;
(ii) The offender's risk of reoffending;
(iii) The safety of the community.
(d) 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. 7 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; 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) 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. 8 RCW
9.94A.850 and 2009 c 28 s 17 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 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.)) 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. 9 The department of corrections shall
recalculate the term of community custody and reset the date that
community custody will end for each offender currently in confinement
or serving a term of community custody for a crime specified in RCW
9.94A.701. The recalculation shall not extend a term of community
custody beyond that to which an offender is currently subject.
Sec.10 2008 c 231 s 6 (uncodified) is amended to read as
follows:
The existing sentencing reform act contains numerous provisions for
supervision of different types of offenders. This duplication has
caused great confusion for judges, lawyers, offenders, and the
department of corrections, and often results in inaccurate sentences.
The clarifications in this act are intended to support continued
discussions by the sentencing guidelines commission with the courts and
the criminal justice community to identify and propose policy changes
that will further simplify and improve the sentencing reform act
relating to the supervision of offenders. The sentencing guidelines
commission shall submit policy change proposals to the legislature on
or before December 1, 2008.
Sections 7 through 58 of this act are intended to simplify the
supervision provisions of the sentencing reform act and increase the
uniformity of its application. These sections are not intended to
either increase or decrease the authority of sentencing courts or the
department relating to supervision, except for those provisions
instructing the court to apply the provisions of the current community
custody law to offenders sentenced after July 1, 2009, but who
committed their crime prior to August 1, 2009, to the extent that such
application is constitutionally permissible.
This will effect a change for offenders who committed their crimes
prior to the offender accountability act, chapter 196, Laws of 1999.
These offenders will be ordered to a term of community custody rather
than community placement or community supervision. To the extent
constitutionally permissible, the terms of the offender's supervision
will be as provided in current law. With the exception of this change,
the legislature does not intend to make, and no provision of sections
7 through 58 of this act may be construed as making, a substantive
change to the supervision provisions of the sentencing reform act.
((It is the intent of the legislature to reaffirm that section 3,
chapter 379, Laws of 2003, expires July 1, 2010.))
Sec. 11 RCW 9.95.220 and 1957 c 227 s 5 are each amended to read
as follows:
(1) Except as provided in subsection (2) of this section, whenever
the state parole officer or other officer under whose supervision the
probationer has been placed shall have reason to believe such
probationer is violating the terms of his or her probation, or engaging
in criminal practices, or is abandoned to improper associates, or
living a vicious life, he or she shall cause the probationer to be
brought before the court wherein the probation was granted. For this
purpose any peace officer or state parole officer may rearrest any such
person without warrant or other process. The court may thereupon in
its discretion without notice revoke and terminate such probation. In
the event the judgment has been pronounced by the court and the
execution thereof suspended, the court may revoke such suspension,
whereupon the judgment shall be in full force and effect, and the
defendant shall be delivered to the sheriff to be transported to the
penitentiary or reformatory as the case may be. If the judgment has
not been pronounced, the court shall pronounce judgment after such
revocation of probation and the defendant shall be delivered to the
sheriff to be transported to the penitentiary or reformatory, in
accordance with the sentence imposed.
(2) If a probationer is being supervised by the department of
corrections pursuant to RCW 9.95.204, the department shall have
authority to issue a warrant for the arrest of an offender who violates
a condition of community custody, as provided in RCW 9.94A.716. Any
sanctions shall be imposed by the department pursuant to RCW 9.94A.737.
The department shall provide a copy of the violation hearing report to
the sentencing court in a timely manner. Nothing in this subsection is
intended to limit the power of the sentencing court to respond to a
probationer's violation of conditions.
Sec. 12 RCW 9.94A.633 and 2009 c 28 s 7 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.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.
(3) If a probationer is being supervised by the department pursuant
to RCW 9.92.060, 9.95.204, or 9.95.210, the probationer may be
sanctioned pursuant to subsection (1) of this section. The department
shall have authority to issue a warrant for the arrest of an offender
who violates a condition of community custody, as provided in RCW
9.94A.716. Any sanctions shall be imposed by the department pursuant
to RCW 9.94A.737. The department shall provide a copy of the violation
hearing report to the sentencing court in a timely manner. Nothing in
this subsection is intended to limit the power of the sentencing court
to respond to a probationer's violation of conditions.
Sec. 13 RCW 9.94A.737 and 2007 c 483 s 305 are each amended to
read as follows:
(1) If an offender violates any condition or requirement of
community custody, the department may transfer the offender 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
and subject to the limitations of subsection (3) of this section.
(2) If an offender has not completed his or her maximum term of
total confinement and is subject to a third violation hearing for any
violation of community custody and is found to have committed the
violation, the department shall return the offender to total
confinement in a state correctional facility to serve up to the
remaining portion of his or her sentence, unless it is determined that
returning the offender to a state correctional facility would
substantially interfere with the offender's ability to maintain
necessary community supports or to participate in necessary treatment
or programming and would substantially increase the offender's
likelihood of reoffending.
(3)(a) For a sex offender sentenced to a term of community custody
under RCW 9.94A.670 who violates any condition of community custody,
the department may impose a sanction of up to sixty days' confinement
in a local correctional facility for each violation. If the department
imposes a sanction, the department shall submit within seventy-two
hours a report to the court and the prosecuting attorney outlining the
violation or violations and the sanctions imposed.
(b) For a sex offender sentenced to a term of community custody
under RCW 9.94A.710 who violates any condition of community custody
after having completed his or her maximum term of total confinement,
including time served on community custody in lieu of earned release,
the department may impose a sanction of up to sixty days in a local
correctional facility for each violation.
(c) For an offender sentenced to a term of community custody under
RCW 9.94A.505(2)(b), 9.94A.650, or 9.94A.715, or under RCW 9.94A.545,
for a crime committed on or after July 1, 2000, who violates any
condition of community custody after having completed his or her
maximum term of total confinement, including time served on community
custody in lieu of earned release, the department may impose a sanction
of up to sixty days in total confinement for each violation. The
department may impose sanctions such as 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.
(d) For an offender sentenced to a term of community placement
under RCW 9.94A.705 who violates any condition of community placement
after having completed his or her maximum term of total confinement,
including time served on community custody in lieu of earned release,
the department may impose a sanction of up to sixty days in total
confinement for each violation. The department may impose sanctions
such as 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.
(e) If a probationer is being supervised by the department pursuant
to RCW 9.92.060, 9.95.204, or 9.95.210, the probationer may be
sanctioned by the department pursuant to (c) of this subsection. The
department shall have authority to issue a warrant for the arrest of an
offender who violates a condition of community custody, as provided in
RCW 9.94A.740. The department shall provide a copy of the violation
hearing report to the sentencing court in a timely manner. Nothing in
this subsection is intended to limit the power of the sentencing court
to respond to a probationer's violation of conditions.
(4) If an offender has been arrested for a new felony offense while
under community supervision, community custody, or community placement,
the department shall hold the offender in total confinement until a
hearing before the department as provided in this section or until the
offender has been formally charged for the new felony offense,
whichever is earlier. Nothing in this subsection shall be construed as
to permit the department to hold an offender past his or her maximum
term of total confinement if the offender has not completed the maximum
term of total confinement or to permit the department to hold an
offender past the offender's term of community supervision, community
custody, or community placement.
(5) The department shall be financially responsible for any portion
of the sanctions authorized by this section that are served in a local
correctional facility as the result of action by the department.
(6) If an offender is accused of violating any condition or
requirement of community custody, he or she is entitled to a hearing
before the department prior to the imposition of sanctions. The
hearing shall be considered as offender disciplinary proceedings and
shall not be subject to chapter 34.05 RCW. The department shall
develop hearing procedures and a structure of graduated sanctions.
(7) The hearing procedures required under subsection (6) of this
section shall be developed by rule and include the following:
(a) Hearing officers shall report through a chain of command
separate from that of community corrections officers;
(b) The department shall provide the offender with written notice
of the violation, the evidence relied upon, and the reasons the
particular sanction was imposed. The notice shall include a statement
of the rights specified in this subsection, and the offender's right to
file a personal restraint petition under court rules after the final
decision of the department;
(c) The hearing shall be held unless waived by the offender, and
shall be electronically recorded. For offenders not in total
confinement, the hearing shall be held within fifteen working days, but
not less than twenty-four hours, after notice of the violation. For
offenders in total confinement, the hearing shall be held within five
working days, but not less than twenty-four hours, after notice of the
violation;
(d) The offender shall have the right to: (i) Be present at the
hearing; (ii) have the assistance of a person qualified to assist the
offender in the hearing, appointed by the hearing officer if the
offender has a language or communications barrier; (iii) testify or
remain silent; (iv) call witnesses and present documentary evidence;
and (v) question witnesses who appear and testify; and
(e) The sanction shall take effect if affirmed by the hearing
officer. Within seven days after the hearing officer's decision, the
offender may appeal the decision to a panel of three reviewing officers
designated by the secretary or by the secretary's designee. The
sanction shall be reversed or modified if a majority of the panel finds
that the sanction was not reasonably related to any of the following:
(i) The crime of conviction; (ii) the violation committed; (iii) the
offender's risk of reoffending; or (iv) the safety of the community.
(8) For purposes of this section, no finding of a violation of
conditions may be based on unconfirmed or unconfirmable allegations.
(9) The department shall work with the Washington association of
sheriffs and police chiefs to establish and operate an electronic
monitoring program for low-risk offenders who violate the terms of
their community custody. Between January 1, 2006, and December 31,
2006, the department shall endeavor to place at least one hundred low-risk community custody violators on the electronic monitoring program
per day if there are at least that many low-risk offenders who qualify
for the electronic monitoring program.
(10) Local governments, their subdivisions and employees, the
department and its employees, and the Washington association of
sheriffs and police chiefs and its employees shall be immune from civil
liability for damages arising from incidents involving low-risk
offenders who are placed on electronic monitoring unless it is shown
that an employee acted with gross negligence or bad faith.
Sec. 14 RCW 9.94A.6332 and 2009 c 28 s 8 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.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. If a probationer is being supervised by the
department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, upon
receipt of a violation hearing report from the department, the court
retains any authority that those statutes provide to respond to a
probationer's violation of conditions.
(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.
NEW SECTION. Sec. 15 The legislature directs the sentencing
guidelines commission to include in its biennial report to the
legislature, as required by RCW 9.94A.850(2)(h)(iii), and due no later
than December 1, 2011, an analysis of the impact on recidivism of the
following:
(1) The supervision of offenders pursuant to sections 1 and 2 of
this act;
(2) The department's authority to issue warrants for offenders
under its supervision who are sentenced for misdemeanor and gross
misdemeanor offenses in superior court; and
(3) The community custody terms of supervision pursuant to section
5 of this act.
NEW SECTION. Sec. 16 The following acts or parts of acts are
each repealed:
(1) RCW 9.95.206 (Misdemeanant probation services -- Offender
classification system -- Supervision standards) and 1996 c 298 s 2; and
(2) RCW 9.95.212 (Standards for supervision of misdemeanant
probationers) and 1998 c 245 s 2 & 1995 1st sp.s. c 19 s 31.
NEW SECTION. Sec. 17 2008 c 231 s 60 (uncodified) is repealed.
*NEW SECTION. Sec. 18 (1) Sections 1, 3, 11, 13, 16, 17, and 20
of this act are necessary for the immediate preservation of the public
peace, health, or safety, or support of the state government and its
existing public institutions, and take effect immediately.
(2) Sections 2, 4 through 10, 12, and 14 of this act take effect
August 1, 2009.
*Sec. 18 was vetoed. See message at end of chapter.
NEW SECTION. Sec. 19 Sections 1, 3, and 13 of this act expire
August 1, 2009.
NEW SECTION. Sec. 20 This act applies retroactively and
prospectively regardless of whether the offender is currently on
community custody or probation with the department, currently
incarcerated with a term of community custody or probation with the
department, or sentenced after the effective date of this section.