BILL REQ. #: Z-0801.1
State of Washington | 62nd Legislature | 2011 2nd Special Session |
Read first time 12/01/11. Referred to Committee on Ways & Means.
AN ACT Relating to community supervision; amending RCW 9.94A.631, 9.94A.704, 9.94A.706, 9.94A.714, 9.94A.716, 9.94A.737, 9.94A.740, and 9.95.210; reenacting and amending RCW 9.94A.633 and 9.94A.701; providing effective dates; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.94A.631 and 2009 c 390 s 1 are each amended to read
as follows:
(1) If an offender violates any condition or requirement of a
sentence, a community corrections officer may arrest or cause the
arrest of the offender without a warrant, pending a determination by
the court or a department of corrections hearing officer. If there is
reasonable cause to believe that an offender has violated a condition
or requirement of the sentence, a community corrections officer may
require an offender to submit to a search and seizure of the offender's
person, residence, automobile, or other personal property.
(2) For the safety and security of department staff, an offender
may be required to submit to pat searches, or other limited security
searches, by community corrections officers, correctional officers, and
other agency approved staff, without reasonable cause, when in or on
department premises, grounds, or facilities, or while preparing to
enter department premises, grounds, facilities, or vehicles. Pat
searches of offenders shall be conducted only by staff who are the same
gender as the offender, except in emergency situations.
(3) A community corrections officer may also arrest an offender for
any crime committed in his or her presence. The facts and
circumstances of the conduct of the offender shall be reported by the
community corrections officer, with recommendations, to the court ((or
department of corrections hearing officer)), local law enforcement, or
local prosecution for consideration of new charges. The community
corrections officer's report shall serve as the notice that the
department will hold the offender for not more than three days from the
time of arrest.
If a community corrections officer arrests or causes the arrest of
an offender under this section, the offender shall be confined and
detained in the county jail of the county in which the offender was
taken into custody, and the sheriff of that county shall receive and
keep in the county jail, where room is available, all prisoners
delivered to the jail by the community corrections officer, and such
offenders shall not be released from custody on bail or personal
recognizance, except upon approval of the court or authorized
department staff, pursuant to a written order.
Sec. 2 RCW 9.94A.633 and 2010 c 258 s 1 and 2010 c 224 s 12 are
each reenacted and amended to read as follows:
(1)(a) An offender who violates any condition or requirement of a
sentence may be sanctioned by the court with up to sixty days'
confinement for each violation or by the department as provided in RCW
9.94A.737.
(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 community-based 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, 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 parenting sentencing
alternative set out in RCW 9.94A.655, the offender may be sanctioned in
accordance with that section.
(d) If the offender was sentenced under the special sex 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.
(e) 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.
(f) 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.
(4) The parole or probation of an offender who is charged with a
new felony offense may be suspended and the offender placed in total
confinement pending disposition of the new criminal charges if:
(a) The offender is on parole pursuant to RCW 9.95.110(1); or
(b) The offender is being supervised pursuant to RCW 9.94A.745 and
is on parole or probation pursuant to the laws of another state.
Sec. 3 RCW 9.94A.701 and 2010 c 267 s 11 and 2010 c 224 s 5 are
each reenacted and amended to read as follows:
(1) If an offender is sentenced to the custody of the department
for ((one of the following crimes)) a sex offense not sentenced under
RCW 9.94A.507, the court shall, in addition to the other terms of the
sentence, sentence the offender to community custody for ((three)) two
years((:)).
(a) A sex offense not sentenced under RCW 9.94A.507; or
(b) A serious violent offense
(2) ((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.)) 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:
(3)
(a) A violent offense;
(b) Any crime against persons under RCW 9.94A.411(2);
(((b))) (c) 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;
(((c))) (d) A felony offense under chapter 69.50 or 69.52 RCW,
committed on or after July 1, 2000; or
(((d))) (e) A felony violation of RCW 9A.44.132(1) (failure to
register) that is the offender's first violation for a felony failure
to register.
(((4))) (3) If an offender is sentenced under the drug offender
sentencing alternative, the court shall impose community custody as
provided in RCW 9.94A.660.
(((5))) (4) If an offender is sentenced under the special sex
offender sentencing alternative, the court shall impose community
custody as provided in RCW 9.94A.670.
(((6))) (5) If an offender is sentenced to a work ethic camp, the
court shall impose community custody as provided in RCW 9.94A.690.
(((7))) (6) If an offender is sentenced under the parenting
sentencing alternative, the court shall impose a term of community
custody as provided in RCW 9.94A.655.
(((8))) (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.
(((9))) (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. 4 RCW 9.94A.704 and 2009 c 375 s 6 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 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 upon
intake of any additional conditions or modifications and the
department's violation process.
(b) By the close of the next business day after receiving notice of
((a)) any additional 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. 5 RCW 9.94A.706 and 2008 c 231 s 11 are each amended to read
as follows:
No offender sentenced to a term of community custody under the
supervision of the department may own, use, or possess firearms or
ammunition. ((Offenders who own, use, or are found to be in)) Actual
or constructive possession of firearms or ammunition shall be ((subject
to the violation process and)) considered a high risk violation and
subject to sanctions under RCW 9.94A.633, 9.94A.716, and 9.94A.737.
"Constructive possession" as used in this section means the power
and intent to control the firearm or ammunition. "Firearm" as used in
this section has the same definition as in RCW 9.41.010.
Sec. 6 RCW 9.94A.714 and 2008 c 231 s 16 are each amended to read
as follows:
(1) If an offender has not completed his or her maximum term of
total confinement and is subject to a third or more high risk violation
hearing pursuant to RCW 9.94A.737 for any high risk 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.
(2) The department may 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.
(3) Local governments, their subdivisions and employees, the
department and its employees, and the Washington association of
sheriffs and police chiefs and its employees are 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. 7 RCW 9.94A.716 and 2008 c 231 s 21 are each amended to read
as follows:
(1) The secretary may issue warrants for the arrest of any offender
who violates a condition of community custody. The arrest warrants
shall authorize any law enforcement or peace officer or community
corrections officer of this state or any other state where such
offender may be located, to arrest the offender and place him or her in
total confinement pending disposition of the alleged violation pursuant
to RCW 9.94A.737.
(2) A community corrections officer, if he or she has reasonable
cause to believe an offender has violated a condition of community
custody, may suspend the person's community custody status and arrest
or cause the arrest and detention in total confinement of the offender,
pending the determination of the secretary as to whether the violation
has occurred. The community corrections officer shall report to the
secretary all facts and circumstances and the reasons for the action of
suspending community custody status.
(3) If an offender has been arrested by the department for a new
felony offense while under community custody, 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))
facts and circumstances of the conduct of the offender shall be
reported by the community corrections officer to local law enforcement
or local prosecution for consideration of new charges. The community
corrections officer's report shall serve as notice that the department
will hold the offender in total confinement for not more than three
days from the time of arrest. 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 custody.
(4) A violation of a condition of community custody shall be deemed
a violation of the sentence for purposes of RCW 9.94A.631. The
authority granted to community corrections officers under this section
shall be in addition to that set forth in RCW 9.94A.631.
Sec. 8 RCW 9.94A.737 and 2008 c 231 s 20 are each amended to read
as follows:
(1) 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)) shall be sanctioned through an
offender disciplinary proceeding((s)) and shall not be subject to
chapter 34.05 RCW. The department shall develop ((hearing procedures
and a structure of graduated sanctions)) and notify the offender in
writing of the violation processes.
(2) The sanction imposed by the department shall be determined
based on the offender's violation behavior. The department shall adopt
a rule defining the violations as either a low risk violation or a high
risk violation, the structured violation process, the presumptive
sanctions, and aggravating and mitigating factors.
(3) The department shall intervene when an offender commits a low
risk violation as follows:
(a) For the first low risk violation, the offender shall be
sanctioned to one or more community-based interventions. The
department shall adopt a rule prescribing community-based
interventions.
(b) For the second or subsequent low risk violation, the offender
shall be sanctioned to not more than three days in total confinement.
The department shall adopt a rule prescribing at which point subsequent
low risk violations will be addressed as a high risk violation.
(4) If an offender is accused of committing a high risk violation
they are entitled to a hearing prior to impositions of sanctions. The
hearing shall be considered an offender disciplinary proceeding and
shall not be subject to chapter 34.05 RCW. The hearing procedures
((required under subsection (1) of this section)) for all high risk
violations 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))
business days, but not less than twenty-four hours, after written
notice of the violation. For offenders in total confinement, the high
risk violation hearing shall be held within five ((working)) business
days, but not less than twenty-four hours, after written 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;
(f) The department shall sanction an offender to not more than
thirty days in total confinement when an offender commits a high risk
violation.
(((3))) (5) For purposes of this section, no finding of a violation
of conditions may be based on unconfirmed or unconfirmable allegations.
Sec. 9 RCW 9.94A.740 and 2008 c 231 s 22 are each amended to read
as follows:
(1) When an offender is arrested pursuant to RCW 9.94A.631,
9.94A.633, 9.94A.716, and 9.94A.737, if the department retains
jurisdiction then until the department releases its detainer, the
department shall compensate the local jurisdiction at the office of
financial management's adjudicated rate, in accordance with RCW
70.48.440.
(2) Inmates, as defined in RCW 72.09.015, who have been transferred
to community custody and who are detained in a local correctional
facility are the financial responsibility of the department of
corrections, except as provided in subsection (3) of this section.
(3) For confinement sanctions imposed by the department under RCW
9.94A.670, the local correctional facility shall be financially
responsible.
(4) The department, in consultation with the Washington association
of sheriffs and police chiefs and those counties in which the sheriff
does not operate a correctional facility, shall establish a methodology
for determining the department's local correctional facilities bed
utilization rate, for each county in calendar year 1998, for offenders
being held for violations of conditions of community custody.
(5) Except as provided in subsections (1) and (2) of this section,
the local correctional facility shall continue to be financially
responsible to the extent of the calendar year 1998 bed utilization
rate for confinement sanctions imposed by the department pursuant to
RCW 9.94A.737. If the department's use of bed space in local
correctional facilities of any county for such confinement sanctions
exceeds the 1998 bed utilization rate for the county, the department
shall compensate the county for the excess use at the per diem rate
equal to the lowest rate charged by the county under its contract with
a municipal government during the year in which the use occurs.
Sec. 10 RCW 9.95.210 and 2011 1st sp.s. c 40 s 7 are each amended
to read as follows:
(1) In granting probation, the superior court may suspend the
imposition or the execution of the sentence and may direct that the
suspension may continue upon such conditions and for such time as it
shall designate, not exceeding the maximum term of sentence or two
years, whichever is longer.
(2) In the order granting probation and as a condition thereof, the
superior court may in its discretion imprison the defendant in the
county jail for a period not exceeding one year and may fine the
defendant any sum not exceeding the statutory limit for the offense
committed, and court costs. As a condition of probation, the superior
court shall require the payment of the penalty assessment required by
RCW 7.68.035. The superior court may also require the defendant to
make such monetary payments, on such terms as it deems appropriate
under the circumstances, as are necessary: (a) To comply with any
order of the court for the payment of family support; (b) to make
restitution to any person or persons who may have suffered loss or
damage by reason of the commission of the crime in question or when the
offender pleads guilty to a lesser offense or fewer offenses and agrees
with the prosecutor's recommendation that the offender be required to
pay restitution to a victim of an offense or offenses which are not
prosecuted pursuant to a plea agreement; (c) to pay such fine as may be
imposed and court costs, including reimbursement of the state for costs
of extradition if return to this state by extradition was required; (d)
following consideration of the financial condition of the person
subject to possible electronic monitoring, to pay for the costs of
electronic monitoring if that monitoring was required by the court as
a condition of release from custody or as a condition of probation; (e)
to contribute to a county or interlocal drug fund; and (f) to make
restitution to a public agency for the costs of an emergency response
under RCW 38.52.430, and may require bonds for the faithful observance
of any and all conditions imposed in the probation.
(3) The superior court shall order restitution in all cases where
the victim is entitled to benefits under the crime victims'
compensation act, chapter 7.68 RCW. If the superior court does not
order restitution and the victim of the crime has been determined to be
entitled to benefits under the crime victims' compensation act, the
department of labor and industries, as administrator of the crime
victims' compensation program, may petition the superior court within
one year of imposition of the sentence for entry of a restitution
order. Upon receipt of a petition from the department of labor and
industries, the superior court shall hold a restitution hearing and
shall enter a restitution order.
(4) In granting probation, the superior court may order the
probationer to report to the secretary of corrections or such officer
as the secretary may designate and as a condition of the probation to
follow the instructions of the secretary for up to twelve months. If
the county legislative authority has elected to assume responsibility
for the supervision of superior court misdemeanant probationers within
its jurisdiction, the superior court misdemeanant probationer shall
report to a probation officer employed or contracted for by the county.
In cases where a superior court misdemeanant probationer is sentenced
in one county, but resides within another county, there must be
provisions for the probationer to report to the agency having
supervision responsibility for the probationer's county of residence.
(5) If the probationer has been ordered to make restitution and the
superior court has ordered supervision, the officer supervising the
probationer shall make a reasonable effort to ascertain whether
restitution has been made. If the superior court has ordered
supervision and restitution has not been made as ordered, the officer
shall inform the prosecutor of that violation of the terms of probation
not less than three months prior to the termination of the probation
period. The secretary of corrections will promulgate rules and
regulations for the conduct of the person during the term of probation.
For defendants found guilty in district court, like functions as the
secretary performs in regard to probation may be performed by probation
officers employed for that purpose by the county legislative authority
of the county wherein the court is located.
(6) The provisions of RCW 9.94A.501 and 9.94A.5011 apply to
sentences imposed under this section.
NEW SECTION. Sec. 11 Sections 1, 2, and 4 through 9 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 March 1, 2012.
NEW SECTION. Sec. 12 Sections 3 and 10 of this act take effect
May 1, 2012.