BILL REQ. #:  S-0037.2 

Read first time 01/12/11.   Referred to Committee on Human Services & Corrections.

     AN ACT Relating to persistent offenders; amending RCW 9.94A.570, 9.95.425, 9.95.430, 9.95.435, and 9.95.440; adding a new section to chapter 9.94A RCW; adding new sections to chapter 9.95 RCW; and prescribing penalties.

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

Sec. 1   RCW 9.94A.570 and 2000 c 28 s 6 are each amended to read as follows:
     (1) Notwithstanding the statutory maximum sentence or any other provision of this chapter, except when subsection (2) of this section applies a persistent offender shall be sentenced to a term of total confinement for life without the possibility of release or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death. In addition, no offender subject to this ((section)) subsection may be eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of release as defined under RCW 9.94A.728 (((1),)) (2), (3), (((4), (6),)) (5), (7), or (8), ((or (9),)) or any other form of authorized leave from a correctional facility while not in the direct custody of a corrections officer or officers, except: (((1))) (a) In the case of an offender in need of emergency medical treatment; or (((2))) (b) for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree.
     (2)(a) Notwithstanding the statutory maximum sentence or any other provision of this chapter, a persistent offender shall be sentenced under this subsection if none of the offender's convictions used as a basis for the finding that the offender was a persistent offender is a class A felony or sex offense, or a federal or out-of-state conviction for an offense that under the laws of this state would be considered a class A felony or sex offense, or a deadly weapon verdict under RCW 9.94A.825 or 9.95.015.
     (b) Upon a finding that the offender is subject to sentencing under this subsection, the court shall impose a sentence with a maximum term of life and a mandatory minimum term of fifteen years.
     (c) When a court sentences a person to the custody of the department under this subsection, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence.
     (d)(i) As part of any sentence under this subsection, the court shall also require the offender to comply with any conditions imposed by the board under section 4 of this act.
     (ii) An offender released by the board under section 4 of this act is subject to the supervision of the department for twenty-four months. The department shall monitor the offender's compliance with conditions of community custody imposed by the court, department, or board, and promptly report any violations to the board. Any violation of conditions of community custody established or modified by the board are subject to the provisions of section 4 of this act.

NEW SECTION.  Sec. 2   A new section is added to chapter 9.94A RCW to read as follows:
     In any criminal case wherein an offender has been sentenced as a persistent offender prior to the effective date of this section, the offender shall have a resentencing hearing if none of the convictions used as a basis for the finding that the offender was a persistent offender were a class A felony or sex offense, or a federal or out-of-state conviction for an offense that under the laws of this state would be considered a class A felony or sex offense, or a deadly weapon verdict under RCW 9.94A.825 or 9.95.015. The prosecuting attorney for the county in which any offender was sentenced as a persistent offender shall review each sentencing document. If no current or past conviction for a class A felony or sex offense, or a federal or out-of-state conviction for an offense that under the laws of this state would be considered a class A felony or sex offense, or a deadly weapon verdict under RCW 9.94A.825 or 9.95.015 was used as a basis for a finding that an offender was a persistent offender, the prosecuting attorney shall, or the offender may, make a motion for relief from sentence to the original sentencing court.
     The sentencing court shall grant the motion if it finds that no current or past conviction for a class A felony or sex offense, or a federal or out-of-state conviction for an offense that under the laws of this state would be considered a class A felony or sex offense, or a deadly weapon verdict under RCW 9.94A.825 or 9.95.015 was used as a basis for a finding that the offender was a persistent offender and shall immediately set an expedited date for resentencing. At resentencing, the court shall sentence the offender as specified in RCW 9.94A.570(2).

NEW SECTION.  Sec. 3   A new section is added to chapter 9.95 RCW to read as follows:
     (1) Except as provided in subsection (2) of this section, not less than ninety days prior to the expiration of the minimum term of a person sentenced under RCW 9.94A.570(2), the board shall review the person for conditional release to community custody as provided in section 4 of this act. If the board does not release the person, it shall set a new minimum term not to exceed an additional five years. The board shall review the person again not less than ninety days prior to the expiration of the new minimum term.
     (2) If at the time a person sentenced under RCW 9.94A.570(2) arrives at a department of corrections facility, the offender's minimum term has expired or will expire within one hundred twenty days of the offender's arrival, then no later than one hundred twenty days after the offender's arrival at a department of corrections facility, the board shall review the person for conditional release to community custody as provided in section 4 of this act. If the board does not release the person, it shall set a new minimum term not to exceed an additional five years. The board shall review the person again not less than ninety days prior to the expiration of the new minimum term.
     (3) In setting a new minimum term, the board may consider the length of time necessary for the offender to complete treatment and programming as well as other factors that relate to the offender's release under section 4 of this act. The board's rules shall permit an offender to petition for an earlier review if circumstances change or the board receives new information that would warrant an earlier review.

NEW SECTION.  Sec. 4   A new section is added to chapter 9.95 RCW to read as follows:
     (1)(a) Except as provided in (b) of this subsection, before the expiration of the minimum term, the department shall conduct, and the offender shall participate in, an examination of the offender.
     (b) If at the time the sentence is imposed by the superior court the offender's minimum term has expired or will expire within one hundred twenty days of the sentencing hearing, the department shall conduct, within ninety days of the offender's arrival at a department of corrections facility, and the offender shall participate in, an examination of the offender.
     (2) The board shall impose the conditions and instructions provided for in RCW 9.94A.704. The board shall consider the department's recommendations and may impose conditions in addition to those recommended by the department. The board may impose or modify conditions of community custody following notice to the offender.

Sec. 5   RCW 9.95.425 and 2009 c 28 s 30 are each amended to read as follows:
     (1) Whenever the board or a community corrections officer of this state has reason to believe an offender released under RCW 9.95.420 or section 4 of this act has violated a condition of community custody or the laws of this state, any community corrections officer may arrest or cause the arrest and detention of the offender pending a determination by the board whether sanctions should be imposed or the offender's community custody should be revoked. The community corrections officer shall report all facts and circumstances surrounding the alleged violation to the board, with recommendations.
     (2) If the board or the department causes the arrest or detention of an offender for a violation that does not amount to a new crime and the offender is arrested or detained by local law enforcement or in a local jail, the board or department, whichever caused the arrest or detention, shall be financially responsible for local costs. Jail bed costs shall be allocated at the rate established under RCW 9.94A.740.

Sec. 6   RCW 9.95.430 and 2001 2nd sp.s. c 12 s 308 are each amended to read as follows:
     Any offender released under RCW 9.95.420 or section 4 of this act who is arrested and detained in physical custody by the authority of a community corrections officer, or upon the written order of the board, shall not be released from custody on bail or personal recognizance, except upon approval of the board and the issuance by the board of an order reinstating the offender's release on the same or modified conditions. All chiefs of police, marshals of cities and towns, sheriffs of counties, and all police, prison, and peace officers and constables shall execute any such order in the same manner as any ordinary criminal process.

Sec. 7   RCW 9.95.435 and 2007 c 363 s 3 are each amended to read as follows:
     (1) If an offender released by the board under RCW 9.95.420 or section 4 of this act violates any condition or requirement of community custody, the board 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 (2) of this section.
     (2) Following the hearing specified in subsection (3) of this section, the board 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, or may suspend the release and sanction up to sixty days' confinement in a local correctional facility for each violation, or revoke the release to community custody whenever an offender released by the board under RCW 9.95.420 or section 4 of this act violates any condition or requirement of community custody.
     (3) If an offender released by the board under RCW 9.95.420 or section 4 of this act is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the board or a designee of the board 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 board shall develop hearing procedures and a structure of graduated sanctions consistent with the hearing procedures and graduated sanctions developed pursuant to RCW 9.94A.737. The board may suspend the offender's release to community custody and confine the offender in a correctional institution owned, operated by, or operated under contract with the state prior to the hearing unless the offender has been arrested and confined for a new criminal offense.
     (4) The hearing procedures required under subsection (3) of this section shall be developed by rule and include the following:
     (a) Hearings shall be conducted by members or designees of the board unless the board enters into an agreement with the department to use the hearing officers established under RCW 9.94A.737;
     (b) The board shall provide the offender with findings and conclusions which include the evidence relied upon, and the reasons the particular sanction was imposed. The board shall notify the offender of the right to appeal the sanction and the right to file a personal restraint petition under court rules after the final decision of the board;
     (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 thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. For offenders in total confinement, the hearing shall be held within thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. The board or its designee shall make a determination whether probable cause exists to believe the violation or violations occurred. The determination shall be made within forty-eight hours of receipt of the allegation;
     (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 presiding hearing officer if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and present documentary evidence; (v) question witnesses who appear and testify; and (vi) be represented by counsel if revocation of the release to community custody upon a finding of violation is a probable sanction for the violation. The board may not revoke the release to community custody of any offender who was not represented by counsel at the hearing, unless the offender has waived the right to counsel; and
     (e) The sanction shall take effect if affirmed by the presiding hearing officer.
     (5) Within seven days after the presiding hearing officer's decision, the offender may appeal the decision to the full board or to a panel of three reviewing examiners designated by the chair of the board or by the chair'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: (a) The crime of conviction; (b) the violation committed; (c) the offender's risk of reoffending; or (d) the safety of the community.
     (6) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations.

Sec. 8   RCW 9.95.440 and 2008 c 231 s 45 are each amended to read as follows:
     In the event the board suspends the release status of an offender released under RCW 9.95.420 or section 4 of this act by reason of an alleged violation of a condition of release, or pending disposition of a new criminal charge, the board may nullify the suspension order and reinstate release under previous conditions or any new conditions the board determines advisable under RCW 9.94A.704. Before the board may nullify a suspension order and reinstate release, it shall determine that the best interests of society and the offender shall be served by such reinstatement rather than return to confinement.