Background: Swift and Certain. According to the Washington State Department of Corrections (DOC), the Legislature adopted the swift and certain (SAC) sanctioning model into law in 2012 in response to the continued economic downtown and the need to strategically cut costs without jeopardizing public safety. At the time, there was emerging research that SAC sanctioning programs increased compliance in the community and reduced costs associated with confining community violators. Basic principles of SAC are swiftness, certainty, proportionality, and fairness. Swiftness is achieved by the supervised individual's immediate arrest and confinement. Certainty is achieved by a clearly defined response applied for all violations. Proportionality is achieved by distinguishing low and high-level violations, identifying some behaviors as more serious than others, and by requiring the sixth and subsequent low-level violation result in a high-level response. Fairness is achieved by making the supervised individual aware of the rules and consequences, and by providing a consistent response for a defined set of violations.

Under SAC, an individual's first low level violation may be addressed with a stipulated agreement, unless a hearing process is required due to aggravated circumstances. Subsequent low-level violations, up to five, may be addressed through a short-term confinement sanction of one to three days in custody, unless a hearing process is required due to aggravated circumstances. After five low level violations, all violations will be considered high-level and addressed through a hearing process. A hearing process is a hearing with a DOC hearing officer. If the individual is found guilty, the individual will receive a sanction up to 30 days of confinement.

Aggravating factors include:

escalating aggression;
behavior during the commission of the violation that manifested deliberate harm, cruelty, or intimidation of the victim;
physical resistance;
posing a significant risk to public safety while failing to comply with electronic monitoring; and
offense cycle behavior that indicates potential harm or threat or harm to a previous or potential victim.

High level violations include:

sixth low level violation;
low level violations with validated aggravating factor;
weapons use or possession;
contact with a prohibited business, location, or person;
domestic violence related violation behavior;
threatening or assaultive behavior towards employees or their families;
search refusal;
use of devices or adulterants to interfere with or alter the urinalysis process;
unauthorized possession of ammunition or explosives;
absconding from supervision;
unapproved residence for a sex offender;
failure to submit to a scheduled polygraph test;
violation of the drug offender sentencing alternative; and
any behavior resulting in a new misdemeanor, gross misdemeanor, or felony conviction for active underlying 21 designation cases.

According to DOC policy, in lieu of arrest or prior to the detaining facility assuming custody of the individual, the violation process may be mitigated with community corrections supervisor approval when the individual is enrolled or participating in a therapeutic court, or is known to have medical or mental health issues and confinement would interfere with stability in medications, inpatient substance use disorder treatment, other medical or mental health treatment, employment, or housing. If mitigated, the violation will be addressed through a stipulated agreement.

Underlying 21 Designation. Generally, an offender who commits a new crime is held in confinement for not more than three days. If the offender's underlying offense is one of the underlying 21 designation, or U21, and the violation behavior constitutes a new misdemeanor, gross misdemeanor, or felony, the offender shall be held in total confinement pending a sanction hearing, and until the sanction expires, for up to 30 days, or until a prosecuting attorney files new charges against the offender, whichever occurs first. The following felonies fall under the U21 designation:

assault in the first degree;
assault of a child in the first degree;
assault of a child in the second degree;
burglary in the first degree;
child molestation in the first degree;
commercial sexual abuse of a minor;
dealing in depictions of a minor engaged in sexually explicit conduct;
homicide by abuse;
indecent liberties with forcible compulsion;
indecent liberties with a person capable of consent;
kidnapping in the first degree;
murder in the first degree;
murder in the second degree;
promoting commercial sexual abuse of a minor;
rape in the first degree;
rape in the second degree;
rape of a child in the first degree;
rape of a child in the second degree;
robbery in the first degree;
sexual exploitation of a minor; and
vehicular homicide while under the influence of intoxicating liquor or any drug.

The Department of Corrections' Proposal. In 2019, DOC proposed changes to SAC and U21 designation cases to the Sentencing Guidelines Commission and the Washington Criminal Sentencing Task Force. According to DOC, current policy requires an individual's sixth low-level violation to be considered high-level, regardless of the seriousness of the violation, the impact jail confinement will have on the individual's stability in the community, and the likelihood the sanction will prevent future violation behavior. The additional requirements for addressing violations that constitute new crimes by individuals on supervision for one of the U21 offenses increase complexity for staff and require sanctions that are not based on the violation behavior.

DOC proposed changes to allow sanctions for low-level violations to be guided by the violation behavior and the individual's unique risk, needs, and responsivity factors rather than a rigid SAC count requirement. Staff will be able to identify the most appropriate response to target identified risk or need areas, limit disruption to prosocial activities and influences, address criminogenic need through meaningful and impactful sanction, and choose sanctions commensurate with the violation behavior.