AN ACT Relating to sentencing of serious or repeat sex offenders; amending RCW 9.94A.120, 9.94A.123, 9.94A.150, 9.94A.210, and 9.94A.390; adding a new chapter to Title 9 RCW; creating a new section; prescribing penalties; and providing an effective date.

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

NEW SECTION. Sec. 1. The legislature recognizes current limitations on predicting future assaultive behaviors of violent sex offenders. The best predictor of future violent behavior is past acts of violence. Serious or repeat sex offenders present an extreme threat to public safety beyond the period prescribed by existing sentencing guidelines. These offenders must be subject to review before release from prison in order to increase public safety and enhance accountability on the part of the criminal justice system to the citizens of the state of Washington whom it serves. Dangerous sex offenders should be in prison or closely supervised as long as they are subject to the maximum sentence allowable by law. Therefore, to realize and balance the purposes of the sentencing reform act (RCW 9.94A.010), including the protection of the public, the legislature finds that dangerous sex offenders should be subject to the provisions of this act.

Sec. 2. Section 4, chapter 252, Laws of 1989 and RCW 9.94A.120 are each amended to read as follows:

When a person is convicted of a felony, the court shall impose punishment as provided in this section.

(1) Except as authorized in subsections (2), (5), and (7) of this section, the court shall impose a sentence within the sentence range for the offense.

(2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

(3) Whenever a sentence, or a minimum term in the case of a sexually dangerous offender, outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard range shall be a determinate sentence except for sexually dangerous offenders, who shall be sentenced consistent with sections 2 through 39 of this act.

(4) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years. An offender convicted of the crime of assault in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years. ((An)) Any offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than three years, and shall not be eligible for furlough, work release or other authorized leave of absence from the correctional facility during such minimum three year term except for the purpose of commitment to ((an)) a secure inpatient treatment facility. The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section.

(5) In sentencing a first-time offender the court may waive the imposition of a sentence within the sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses. The sentence may also include up to two years of community supervision, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

(a) Devote time to a specific employment or occupation;

(b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;

(d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

(e) Report as directed to the court and a community corrections officer; or

(f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030 and/or perform community service work.

(6) If a sentence range has not been established for the defendant's crime, the court shall impose a determinate sentence which may include not more than one year of confinement, community service work, a term of community supervision not to exceed one year, and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement if the court finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

(7) (a) When an offender is convicted of a sex offense other than a violation of RCW 9A.44.040 or RCW 9A.44.050 and has no prior convictions for a sex offense or any other felony sexual offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.

After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative. If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years. As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:

(i) Devote time to a specific employment or occupation;

(ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment;

(iii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

(iv) Report as directed to the court and a community corrections officer;

(v) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030, perform community service work, or any combination thereof; or

(vi) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.

If the offender violates these sentence conditions the court may revoke the suspension and order execution of the sentence. All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.

(b) When an offender is convicted of any felony sexual offense committed before July 1, 1987, and is sentenced to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, order the offender committed for up to thirty days to the custody of the secretary of social and health services for evaluation and report to the court on the offender's amenability to treatment at these facilities. If the secretary of social and health services cannot begin the evaluation within thirty days of the court's order of commitment, the offender shall be transferred to the state for confinement pending an opportunity to be evaluated at the appropriate facility. The court shall review the reports and may order that the term of confinement imposed be served in the sexual offender treatment program at the location determined by the secretary of social and health services or the secretary's designee, only if the report indicates that the offender is amenable to the treatment program provided at these facilities. The offender shall be transferred to the state pending placement in the treatment program. Any offender who has escaped from the treatment program shall be referred back to the sentencing court.

If the offender does not comply with the conditions of the treatment program, the secretary of social and health services may refer the matter to the sentencing court. The sentencing court shall commit the offender to the department of corrections to serve the balance of the term of confinement.

If the offender successfully completes the treatment program before the expiration of the term of confinement, the court may convert the balance of confinement to community supervision and may place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:

(i) Devote time to a specific employment or occupation;

(ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

(iii) Report as directed to the court and a community corrections officer;

(iv) Undergo available outpatient treatment.

If the offender violates any of the terms of community supervision, the court may order the offender to serve out the balance of the community supervision term in confinement in the custody of the department of corrections.

After June 30, 1993, this subsection (b) shall cease to have effect.

(c) When an offender commits any felony sexual offense on or after July 1, 1987, ((~~and is sentenced to a term of confinement of more than one year but less than six years~~)) but before July 1, 1990, the sentencing court may, on its own motion or on the motion of the offender or the state, request the department of corrections to evaluate whether the offender is amenable to treatment and the department may place the offender in a treatment program within a correctional facility operated by the department.

Except for an offender who has been convicted of a violation of RCW 9A.44.040 or 9A.44.050, if the offender completes the treatment program before the expiration of his term of confinement, the department of corrections may request the court to convert the balance of confinement to community supervision and to place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:

(i) Devote time to a specific employment or occupation;

(ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

(iii) Report as directed to the court and a community corrections officer;

(iv) Undergo available outpatient treatment.

If the offender violates any of the terms of his community supervision, the court may order the offender to serve out the balance of his community supervision term in confinement in the custody of the department of corrections.

Nothing in (c) of this subsection shall confer eligibility for such programs for offenders convicted and sentenced for a sexual offense committed prior to July 1, 1987.

(8) (a) When a court sentences a person, other than a sexually dangerous offender, to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense, a serious violent offense, assault in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 1988, the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement beginning either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.150(1). When the court sentences an offender under this section to the statutory maximum period of confinement then the community placement portion of the sentence shall consist entirely of such community custody to which the offender may become eligible, in accordance with RCW 9.94A.150(1). Any period of community custody actually served shall be credited against the community placement portion of the sentence.

(b) When a court sentences a person, other than a sexually dangerous offender, to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense, a serious violent offense, assault in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 1988, unless a condition is waived by the court, the sentence shall include, in addition to the other terms of the sentence, a one-year term of community placement on the following conditions:

(i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;

(ii) The offender shall work at department of corrections-approved education, employment, and/or community service;

(iii) The offender shall not consume controlled substances except pursuant to lawfully issued prescriptions;

(iv) An offender in community custody shall not unlawfully possess controlled substances; and

(v) The offender shall pay supervision fees as determined by the department of corrections.

(i) The offender shall remain within, or outside of, a specified geographical boundary;

(ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;

(iii) The offender shall participate in crime-related treatment or counseling services;

(iv) The offender shall not consume alcohol;

(v) The residence location and living arrangements of a sex offender shall be subject to the prior approval of the department of corrections; or

(vi) The offender shall comply with any crime-related prohibitions.

(d) Prior to transfer to, or during, community placement, any conditions of community placement may be removed or modified so as not to be more restrictive by the sentencing court, upon recommendation of the department of corrections.

For the sexually dangerous offender, decisions regarding release, conditions of supervision, revocation of supervision, and sanctions within the confines of the maximum sentence or sentences shall be made by the sexually dangerous offender sentence review board as established by sections 7 through 38 of this act.

(e) After July 1, 1990, when a person is convicted of a class A sex offense, or a class A or capital offense with intent to commit a sex offense, or is convicted of a felony sex offense having previously been convicted of any sex offense, the court shall declare the offender to be a sexually dangerous offender. The court shall commit the sexually dangerous offender to the custody of the department of corrections for the maximum sentence provided in RCW 9A.20.021 (5 years, class C; 10 years, class B; Life, class A).

(i) If the law does not provide a maximum term for the crime for which the offender is convicted, then the court shall fix such maximum sentence, which may be for any number of years up to and including life imprisonment, but in any case where the maximum sentence is fixed by the court, it shall be fixed at not less than twenty years. The court shall also impose the minimum duration of confinement for each count consistent with the purposes, standards, sentence ranges, and procedures adopted pursuant to RCW 9.94A.040. Such minimum term or terms shall conform to the sentence requirements of subsections (2), (3), (4), (9), (10), (11), (13), (14), (15), (16), and (18) of this section, and RCW 9.94A.125, 9.94A.130, 9.94A.140, 9.94A.142, 9.94A.350, 9.94A.360, 9.94A.370, 9.94A.390, 9.94A.400, 9.94A.410, and 9.94A.420. The minimum term or terms shall be appealable subject to the provisions of RCW 9.94A.210. The entire minimum term or terms set by the court including any extensions of the minimum duration of confinement made by the sexually dangerous offender sentence review board shall be served in total confinement.

(ii) Once the maximum sentence(s) and minimum term(s) is pronounced, the sexually dangerous person shall be committed to the secretary of corrections. Authority to determine release of sexually dangerous offenders or otherwise execute the sentence imposed shall be vested in the executive branch of government pursuant to sections 7 through 38 of this act.

(iii) The department of corrections may place sexually dangerous offenders in available diagnostic/treatment programs within a correctional facility operated by the department. Nothing in this subsection shall confer eligibility for such programs for offenders convicted and sentenced for sexual offenses committed prior to July 1, 1987.

(9) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days. A sentence requiring more than thirty days of confinement shall be served on consecutive days. Local jail administrators may schedule court-ordered intermittent sentences as space permits.

(10) If a sentence imposed includes payment of a legal financial obligation, the sentence shall specify the total amount of the legal financial obligation owed, and shall require the offender to pay a specified monthly sum toward that legal financial obligation. Restitution to victims shall be paid prior to any other payments of monetary obligations. Any legal financial obligation that is imposed by the court may be collected by the department, which shall deliver the amount paid to the county clerk for credit. The offender's compliance with payment of legal financial obligations shall be supervised by the department. All monetary payments ordered shall be paid no later than ten years after the last date of release from confinement pursuant to a felony conviction or the date the sentence was entered. Independent of the department, the party or entity to whom the legal financial obligation is owed shall have the authority to utilize any other remedies available to the party or entity to collect the legal financial obligation. Nothing in this section makes the department, the state, or any of its employees, agents, or other persons acting on their behalf liable under any circumstances for the payment of these legal financial obligations. If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order.

(11) Except as provided under RCW 9.94A.140(1) and 9.94A.142(1), a court may not impose a sentence providing for a term of confinement or community supervision or community placement which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.

(12) All offenders sentenced to terms involving community supervision, community service, or legal financial obligation shall be under the supervision of the secretary of the department of corrections or such person as the secretary may designate and shall follow explicitly the instructions of the secretary including reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, and notifying the community corrections officer of any change in the offender's address or employment.

(13) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

(14) A departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210(2) through (6).

(15) The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement, or sentenced as a sexually dangerous offender, or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court's judgment. The court shall set forth the extraordinary circumstances in the record if it does not order restitution.

(16) As a part of any sentence, the court may impose and enforce an order that relates directly to the circumstances of the crime for which the offender has been convicted, prohibiting the offender from having any contact with other specified individuals or a specific class of individuals for a period not to exceed the maximum allowable sentence for the crime, regardless of the expiration of the offender's term of community supervision.

(17) In any sentence of partial confinement, the court may require the defendant to serve the partial confinement in work release or in a program of home detention.

(18) All court-ordered legal financial obligations collected by the department and remitted to the county clerk shall be credited and paid where restitution is ordered. Restitution shall be paid prior to any other payments of monetary obligations.

Sec. 3. Section 1, chapter 301, Laws of 1986 as amended by section 2, chapter 402, Laws of 1987 and RCW 9.94A.123 are each amended to read as follows:

The legislature finds that the sexual offender treatment programs at western and eastern state hospitals, while not proven to be totally effective, may be of some benefit in positively affecting the behavior of certain sexual offenders. Given the significance of the problems of sexual assault and sexual abuse of children, it is therefore appropriate to review and revise these treatment efforts.

At the same time, concerns regarding the lack of adequate security at the existing programs must be satisfactorily addressed. In an effort to promote public safety, it is the intent of the legislature to transfer the responsibility for felony sexual offenders from the department of social and health services to the department of corrections.

Therefore, no person committing a felony sexual offense on or after July 1, 1987, may be committed under RCW 9.94A.120(7)(b) to the department of social and health services at eastern state hospital or western state hospital. Any person committed to the department of social and health services under RCW 9.94A.120(7)(b) for an offense committed before July 1, 1987, and still in the custody of the department of social and health services on June 30, 1993, shall be transferred to the custody of the department of corrections. Any person eligible for evaluation or treatment under RCW 9.94A.120(7)(b) shall be committed to the department of corrections.

Any person eligible for evaluation or treatment under RCW 9.94A.120(7)(e) shall be committed to the department of corrections.

Sec. 4. Section 2, chapter 248, Laws of 1989 and RCW 9.94A.150 are each amended to read as follows:

No person serving a sentence imposed pursuant to this chapter shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows:

(1) Except for persons convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW, the terms of the sentence of an offender committed to a county jail facility, or a correctional facility operated by the department, may be reduced by earned early release time in accordance with procedures that shall be developed and promulgated by the correctional facility in which the offender is confined. The earned early release time shall be for good behavior and good performance, as determined by the correctional facility. Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration. If an offender is transferred from a county jail to the department of corrections, the county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned early release time. In no case shall the aggregate earned early release time exceed one-third of the total sentence. Persons convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW may become eligible for community custody in lieu of earned early release time in accordance with the program developed by the department;

(2) Except for a sexually dangerous offender, when a person convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW is eligible for transfer to community custody status in lieu of earned early release time pursuant to subsection (1) of this section, as computed by the department of corrections, the offender shall be transferred to community custody.

(3) Except for a sexually dangerous offender, an offender may leave a correctional facility pursuant to an authorized furlough or leave of absence. In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers;

(4) The governor, upon recommendation from the clemency and pardons board, may grant an extraordinary release for reasons of serious health problems, senility, advanced age, extraordinary meritorious acts, or other extraordinary circumstances;

(5) No more than the final six months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing him or herself in the community;

(6) The governor may pardon any offender;

(7) The department of corrections may release an offender from confinement any time within ten days before a release date calculated under this section; ((~~and~~))

(8) An offender may leave a correctional facility prior to completion of his sentence if the sentence has been reduced as provided in RCW 9.94A.160; and

(9) A sexually dangerous offender may leave a correctional facility prior to the expiration of the maximum sentence only upon an order of community release issued by the sexually dangerous offender sentence review board pursuant to its authority under sections 7 through 38 of this act, or a pardon issued by the governor.

Sec. 5. Section 21, chapter 137, Laws of 1981 as last amended by section 1, chapter 214, Laws of 1989 and RCW 9.94A.210 are each amended to read as follows:

(1) A sentence within the standard range for the offense shall not be appealed. For purposes of this section, a sentence imposed on a first offender under RCW 9.94A.120(5) shall also be deemed to be within the standard range for the offense and shall not be appealed.

(2) A sentence outside the sentence range for the offense is subject to appeal by the defendant or the state. The appeal shall be to the court of appeals in accordance with rules adopted by the supreme court.

(3) Pending review of the sentence, the sentencing court or the court of appeals may order the defendant confined or placed on conditional release, including bond.

(4) To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

(5) A review under this section shall be made solely upon the record that was before the sentencing court. Written briefs shall not be required and the review and decision shall be made in an expedited manner according to rules adopted by the supreme court.

(6) The court of appeals shall issue a written opinion in support of its decision whenever the judgment of the sentencing court is reversed and may issue written opinions in any other case where the court believes that a written opinion would provide guidance to sentencing judges and others in implementing this chapter and in developing a common law of sentencing within the state.

(7) The department may petition for a review of a sentence committing an offender to the custody or jurisdiction of the department. The review shall be limited to errors of law. Such petition shall be filed with the court of appeals no later than ninety days after the department has actual knowledge of terms of the sentence. The petition shall include a certification by the department that all reasonable efforts to resolve the dispute at the superior court level have been exhausted.

(8) Any minimum term of confinement pronounced for a sexually dangerous offender shall be subject to review to the same extent as any sentence issued pursuant to this act.

Sec. 6. Section 10, chapter 115, Laws of 1983 as last amended by section 1, chapter 408, Laws of 1989 and RCW 9.94A.390 are each amended to read as follows:

If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4).

The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.

(1) Mitigating Circumstances

(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

(b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.

(c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

(d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

(e) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, was significantly impaired (voluntary use of drugs or alcohol is excluded).

(f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.

(g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

(h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

(2) Aggravating Circumstances

(a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.

(b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.

(c) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

(i) The current offense involved multiple victims or multiple incidents per victim;

(ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;

(iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

(iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

(d) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:

(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; or

(ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or

(iii) The current offense involved the manufacture of controlled substances for use by other parties; or

(iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or

(v) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or

(vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional); or

(e) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time; or

(f) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010; or

(g) The offense is a sex offense or sexually motivated offense and the offender has demonstrated that he or she is unwilling or unable to benefit from treatment for conditions or characteristics that led to the commission of the offense.

NEW SECTION. Sec. 7. (1) There is created a sexually dangerous offenders sentence review board (the board).

(2) The board shall have authority to determine:

(a) Actual duration of confinement;

(b) Community release;

(d) Revocation of community release;

(e) Establishment of new duration of confinement;

(f) Discharge from maximum sentence or sentences;

(g) Adoption of time credits;

(h) Transfer of time start between consecutive sentences;

(i) Sanctions for rules infractions;

(j) Recommendation authority for gubernatorial pardon;

(k) Suspension of community release; and

(l) All other powers, duties, and functions relating to the duration of confinement and community releases of persons committed to the department of corrections as sexually dangerous offenders after July 1, 1990, pursuant to RCW 9.94A.120.

(3) The board is established as an agency of state government and is specifically exempted in the exercise of its duties under this chapter from the provisions of chapter 34.05 RCW, as now existing or hereinafter amended.

NEW SECTION. Sec. 8. (1) The board shall consist of three voting members, one of whom the governor shall designate as chairperson. The voting members of the board shall be appointed by the governor, subject to confirmation by the senate.

(2) Each member shall hold office for a term of five years, and until his or her successor is appointed and qualified. The terms shall expire on April 15 of the expiration year. Vacancies in the membership of the board shall be filled by appointments by the governor with the consent of the senate. In the event of the inability of any member to act, the governor shall appoint a competent person to act in his or her stead during the continuance of disability. The members may not be removed from office during their respective terms except for cause as determined by the superior court of Thurston county.

(3) The members of the board, its officers, and employees shall not engage in any other business or profession or hold any other public office; nor shall they, at the time of appointment or employment or during their incumbency, serve as the representative of any political party on an executive committee or other governing body thereof, or as an executive officer or employee of any political committee or association. The members of the board shall each severally receive salaries fixed by the governor in accordance with the provisions of RCW 43.03.040, and in addition, shall receive travel expenses incurred in the discharge of their official duties in accordance with RCW 43.03.050 and 43.03.060.

(4) The board may employ, and with the approval of the governor, fix the compensation and prescribe the duties of a secretary and such officers, employees, and assistants as may be necessary for the operation of the board, and provide necessary quarters, supplies, and equipment.

NEW SECTION. Sec. 9. The board may meet and transact business in panels. Each board panel shall consist of at least two members of the board. In all matters concerning the internal affairs of the board and policy-making decisions, a majority of the full board must concur in such matters. The chairperson of the board, with the consent of a majority of the board, may designate any two members to exercise all the powers and duties of the board in connection with any hearing before the board. If the two members so designated cannot unanimously agree as to the disposition of the hearing assigned to them, such hearing shall be reheard by the full board. All actions of the full board shall be by concurrence of a majority of the board members. To the extent practicable and consistent with security needs, the board shall conduct its hearings in a manner which may be monitored by the public.

NEW SECTION. Sec. 10. (1) When deciding on community release under this chapter, the board shall consider the purposes of the sentencing reform act in RCW 9.94A.010, the report and recommendations of the sentencing judge and prosecuting attorney, and shall attempt to make decisions reasonably consistent with those purposes and recommendations. Whenever a duration of confinement or community release decision is outside the sentencing ranges adopted pursuant to RCW 9.94A.040 or the initial term set by the sentencing court, the board shall provide adequate written reasons. When determining appropriateness of community release under this chapter, the board shall take into consideration that the retributive portion of the sentence has been substantially satisfied when the offender has served the court-set minimum duration of confinement minus any earned time credits. In making decisions under this chapter, the board shall focus on the protecting the public and offering the offender an opportunity to improve him or herself. Moreover, the board shall emphasize in its review the actual behavior of the offender, whether the offender's behavior was observed, admitted, or threatened. The board may consider other relevant information.

(2) The board shall be empowered to implement policies and procedures that will enable it to perform its duties under this chapter, giving due regard to the need for its policies and procedures to be predictable, equitable, and accountable to the offender population over which it has jurisdiction, as well as to the citizens of the state of Washington.

NEW SECTION. Sec. 11. When the court commits a sexually dangerous offender to the department of corrections after July 1, 1990, the court shall, at the time of sentencing, fix the initial minimum duration of confinement for each offense. The terms so fixed shall not exceed the maximum sentence provided by law for the offense of which the person is convicted.

(1) The court shall expressly state on the face of the judgment and sentence and warrant of commitment the consecutive nature of all sentences and minimum durations of confinement consistent with section 38 of this act. Any unexpired portions of community supervision or community release on nonsexual sentences shall be served concurrent with community release.

(2) Thereafter, the expiration of the minimum duration(s) of confinement set by the court minus any time credits earned under sections 18 and 21 of this act constitutes the community release eligibility review date, at which time the board may consider the sexually dangerous offender for community release under sections 20 and 21 of this act. Nothing in this section affects the board's authority to increase the minimum duration of confinement once set by the court under this chapter.

(3) The minimum duration of confinement set by the court including any extensions made by the board shall be served in total confinement.

NEW SECTION. Sec. 12. The board shall cause to be prepared a semiannual report to the governor and the legislature identifying the demographics of the offender population under its jurisdiction. The board shall also identify in the report its specific criteria for establishing or extending duration of confinement and monitoring; length of community release; establishing conditions of community release; reasons for revocation of community release; establishing new duration of confinement following revocation of community release; discharge of sexually dangerous offender from sentence. The report may also contain recommendations for any statutory changes needed for the board to effect public safety.

NEW SECTION. Sec. 13. The secretary of corrections shall receive all persons committed as sexually dangerous offenders and imprison such persons until released under the provisions of this chapter or through the action of the governor.

NEW SECTION. Sec. 14. To expedite the inmate classification process of the department of corrections and to fully inform the board of the perspectives of the prosecuting attorney and sentencing judge pertaining to the sexually dangerous offender, the prosecuting attorney shall draft a report with his or her recommendations together with comments or recommendations of the sentencing judge and make it available to the department of corrections at the time the convicted person is placed into custody of the department. The prosecuting attorney's report should contain a statement of all the facts concerning the convicted person's crime or crimes and any other relevant information regarding the offender. The report may include any pertinent information or recommendations that the sentencing judge and prosecuting attorney believe would benefit the board in the exercise of its sound and informed discretion regarding the sexually dangerous offender's sentence.

NEW SECTION. Sec. 15. (1) The department of corrections shall make available to the board a complete copy of all sentencing documents and information in the possession of the department, including those materials forwarded to the department pursuant to RCW 9.94A.110, together with the prosecuting attorney and judge's statement and recommendations.

(2) The department of corrections shall, upon request, provide the board any additional information in its possession to assist the board in fulfilling its duties and functions under this chapter.

NEW SECTION. Sec. 16. At any time after the sexually dangerous offender begins to serve the sentence that is subject to the jurisdiction of the board, the board may request the secretary of corrections to conduct a full review of the person's prospects for rehabilitation and report to the board the facts and resulting findings of such review. Upon the basis of this report and any other information and investigation that the board deems appropriate, the board may increase such sexually dangerous offender's minimum duration of confinement, or if reduction of the duration of confinement appears appropriate, the board may recommend a reduction to the governor for his or her consideration. Any recommendation for reduction forwarded to the governor must be accompanied by the most recent institutional conduct, progress, and classification reports maintained by the department of corrections.

NEW SECTION. Sec. 17. When a sexually dangerous offender appeals his or her conviction and is at liberty on bond pending the determination of the appeal by the supreme court or court of appeals, credit on his or her minimum duration of confinement and maximum sentence will begin from the date the convicted person is returned to custody. The date of return to custody shall be certified by the sheriff of the county to the department of corrections, the board, and the prosecuting attorney of the county in which the sexually dangerous offender was convicted and sentenced. If the convicted person does not appeal from his or her conviction, but is at liberty for a period of time subsequent to the signing of the judgment and sentence, or becomes a fugitive, credit on his or her sentence will begin from the date the convicted person is returned to custody. The date of return to custody shall be certified as provided in this section. In all other cases, credit on a sentence will begin from the date the judgment and sentence is signed by the court.

NEW SECTION. Sec. 18. Every sexually dangerous offender who has a favorable record of conduct and who performs in a faithful, diligent, industrious, orderly, and peaceful manner the work, duties, and tasks assigned to him or her to the satisfaction of the superintendent of the institution where he or she is incarcerated and in whose behalf the superintendent files a report certifying that his or her conduct and work have been meritorious and recommending allowance of time credits to him or her, shall only upon the adoption of such recommendations by the board, be allowed time credit reductions from the minimum duration of confinement fixed by the court for a sexually dangerous offender.

NEW SECTION. Sec. 19. If a sexually dangerous offender undergoing sentence commits any infractions of the rules and regulations of the institution, the board may revoke any previously issued order that determined the length of time the sexually dangerous offender was to be imprisoned, including the forfeiture of all or a portion of the credits earned or to be earned, pursuant to the provisions of section 18 of this act and make a new order determining the minimum duration of confinement the offender shall serve, not exceeding the maximum penalty provided by law for the crime or crimes for which he or she was convicted, or the maximum fixed by the court. The board may revoke and redetermine a sentence only after conducting a hearing on the matter. At the hearing, the convicted person shall be present, shall have the right to be heard, and to present evidence and witnesses on his or her behalf.

NEW SECTION. Sec. 20. A sexually dangerous offender sentenced to the department of corrections, and not released earlier under the provisions of this chapter, shall be discharged from custody on serving the maximum punishment provided by law for the offense for which the person was convicted, or the maximum sentence fixed by the court where the law does not provide for a maximum sentence. However, the board shall not release a sexually dangerous offender until his or her maximum sentence expires, unless in the board's opinion, the offender's rehabilitation is complete, the offender is an acceptable risk to be monitored in the community, and he or she is a fit subject for release.

NEW SECTION. Sec. 21. The board may permit a sexually dangerous offender to leave the total confinement by the secretary of corrections, after the convicted person has served a period of the minimum duration of confinement fixed by the court, as adjusted by the board, less earned time credits for good behavior and diligence in work. However, in no case shall an inmate be credited with more than one-third of his or her minimum duration of confinement as fixed by the court and adjusted by the board.

The board may establish rules and regulations under which a sexually dangerous offender may be allowed to be monitored in the community under community release and may return such person to total confinement in an institution from which he or she was released at its discretion during the period of the maximum sentence.

NEW SECTION. Sec. 22. (1) Whenever the board or a community corrections officer of this state has reason to believe a sexually dangerous offender has breached a condition of his or her community release, violated the law of any state where he or she may then be, or violated the rules and regulations of the board, a law enforcement officer or community corrections officer of this state may arrest, or cause the arrest, detention, and suspension of community release of the sexually dangerous person, pending a determination by the board as to whether the community release of the sexually dangerous person shall be revoked. All facts and circumstances surrounding the violation by the sexually dangerous person shall be reported to the board by the community corrections officer, with recommendations. The board, after consultation with the secretary of corrections, shall make all rules and regulations concerning procedural matters, including the time in which state community corrections officers shall file reports with the board required by this section, procedures pertaining to the reports, and the filing of information as necessary for the board to perform its functions. Based on the community corrections officer's report, or on its own discretion at any time, the board may revise or modify the conditions of community release, or order the suspension of community release by issuing a written order bearing its seal. The order shall be a sufficient warrant for all peace officers to take a sexually dangerous offender who may be on community release into custody and retain the offender in custody until the board can arrange for the offender's return to a state correctional institution operated under the direction of the secretary of corrections. Any revision or modification of the conditions of community release or the order suspending community release shall be personally served upon the sexually dangerous offender.

(2) Any sexually dangerous offender arrested and detained in physical custody by the authority of the state community corrections officer or law enforcement 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 of an order of reinstatement on parole by the board on the same or modified conditions of parole.

(3) The Washington state patrol, 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 criminal process.

(4) Whenever a sexually dangerous offender on community release is accused of a violation of the conditions of that release, other than for the commission or the conviction of a felony or misdemeanor in this or any state, the offender shall be entitled to a fair and impartial hearing of the charges within thirty days from the time that he or she is served with the charges of the violation of conditions of community release after his or her arrest and detention. The hearing shall be held before one or more members of the board at a place or places within the state, reasonably near the site of the alleged violation or violations of community release.

(5) If the board suspends a community release because of an alleged violation or pending the disposition of a new criminal charge, the board shall have the power to nullify the order of suspension and reinstate the individual to community release under the previous conditions or any new conditions that the board may determine advisable. Before the board shall nullify an order of suspension and reinstate a sexually dangerous offender on community release, it shall determine that the best interests of society and the individual shall be best served by reinstatement, rather than by returning the person to a penal institution.

NEW SECTION. Sec. 23. (1) Within fifteen days from the date of notice to the department of corrections of the arrest and detention of the alleged violator of community release, the alleged violator shall be personally served by a state community corrections officer with a copy of the factual allegations of the violation of conditions of community release, and, at the same time, shall be advised of his or her right to an on-site community release revocation hearing and of his or her rights and privileges as provided in sections 22 through 29 of this act. The alleged parole violator, after being served with the allegations of violations of the conditions of community release and the advice of rights, may waive the on-site community release revocation hearing as provided in this section and admit one or more of the alleged violations of the conditions of community release. If the board accepts the waiver, it shall either (a) reinstate the sexually dangerous offender on community release under the same or modified conditions, or (b) revoke the community release of the sexually dangerous offender and enter an order of community release revocation and return to state custody. A determination of a new minimum duration of confinement shall be made within thirty days of return to state custody and shall not exceed the maximum sentence for the crime for which the sexually dangerous offender was originally convicted or the maximum sentence fixed by the court.

(2) If the waiver made by the sexually dangerous offender is rejected by the board, it shall hold an on-site community release revocation hearing under the provisions of sections 22 through 29 of this act.

NEW SECTION. Sec. 24. At any on-site community release revocation hearing, the alleged violator shall be entitled to be represented by an attorney of his or her own choosing and at his or her own expense. However, upon presentation of satisfactory evidence of indigency and the request for the appointment of an attorney by the alleged violator, an attorney may be appointed to represent the alleged violator at state expense. The board may assume all or such other expenses in the presentation of evidence on behalf of the alleged violator as it may have authorized if funds are available for the payment of attorneys' fees and expenses. Attorneys for the representation of alleged violators in on-site hearings shall be appointed by the superior courts of the county in which the on-site revocation hearing is to be held. The attorney shall be compensated in a manner and amount as fixed in a fee schedule adopted by rule of the board.

NEW SECTION. Sec. 25. In conducting on-site revocation hearings, the board shall have the authority to administer oaths and affirmations, examine witnesses, receive evidence, and issue subpoenas for compulsory attendance of witnesses and for the production of evidence. Subpoenas issued by the board shall be effective throughout the state. Witnesses in attendance at any revocation hearing shall be paid the same fees and allowances, in the same manner and under the same conditions as provided for witnesses in courts of this state in accordance with chapter 2.40 RCW, as now or hereinafter amended. If any person fails or refuses to obey a subpoena issued by the board, or obeys a subpoena but refuses to testify concerning any matter under examination at the hearing, the board may petition the superior court of the county where the hearing is being conducted for enforcement of the subpoena if an offer to pay statutory fees and mileage has been made to the witness at the time of service of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, and shall state in what specific manner the subpoena has not been complied with, and shall ask an order of the court to compel the witness to appear and testify before the board. Upon receiving such a petition, the court shall enter an order directing the witness to appear before the court at a time and place to be fixed in the order and to show cause why he has not responded to the subpoena or has refused to testify. A copy of the order shall be served upon the witness. If it appears to the court that the subpoena was properly issued and that the particular questions which the witness refuses to answer are reasonable and relevant, the court shall order the witness to appear at the time and place fixed in the order and testify or produce the required papers, and on failing to obey said order, the witness shall be dealt with as for a contempt of court.

NEW SECTION. Sec. 26. At all on-site revocation proceedings the community corrections officer of the department of corrections, having made the allegations of the violations of the conditions of community release, may be represented by the attorney general. The attorney general may make independent recommendations to the board about whether the violations constitute sufficient cause for the revocation of the community release and return of the sexually dangerous offender to the state correctional institution. The hearing shall be open to the public unless the board for specifically stated reasons closes the hearing in whole or in part. The hearing shall be recorded, either manually or by a mechanical recording device. The alleged violator may be requested to testify but no such testimony may be used against him or her in any criminal prosecution. The board shall adopt rules governing formal and informal procedures authorized by this chapter and make rules of practice before the board in revocation hearings, together with forms and instructions.

NEW SECTION. Sec. 27. After the on-site revocation hearing has been concluded, the members of the board who heard the matter shall enter the decision of record within ten days, and make findings and conclusions on the allegations of the violations of the conditions of community release. If the member or members who heard the matter conclude that the allegations of violations of the conditions of community supervision have not been proven by preponderance of the evidence, or that those that have been proven by preponderance of the evidence are not sufficient cause for the revocation of community release, then the sexually dangerous offender shall be reinstated on community release on the same or modified conditions of community release. If the member or members who heard the matter conclude that the allegations of violation of the conditions of community release have been proven by a preponderance of the evidence and constitute sufficient cause for the revocation of community release, then the member or members shall enter an order of community release revocation and return the violator to state custody. Within thirty days of the return of the violator to a state correctional institution for convicted felons, the board shall enter an order determining a new minimum duration of confinement not exceeding the maximum sentence or sentences for the crime or crimes for which the parole violator was originally convicted or the maximum sentence or sentences fixed by the court.

NEW SECTION. Sec. 28. All officers and employees of the state, counties, cities, and political subdivisions of this state shall cooperate with the board in making available suitable facilities for conducting community release revocation hearings.

NEW SECTION. Sec. 29. From and after the suspension, cancellation, or revocation of the order of community release of any sexually dangerous offender until his or her return to custody in the state of Washington, he or she shall be deemed an escapee and a fugitive from justice, and no part of the time during which he or she is an escapee and fugitive from justice shall be part of his or her maximum sentence or adjusted minimum term.

NEW SECTION. Sec. 30. (1) The board shall cause a complete record to be kept of every sexually dangerous offender under its jurisdiction, whether in an institution or on community release. Such records shall be organized in accordance with the most modern methods of filing and indexing so that there will be always immediately available complete information about each such sexually dangerous offender.

(2) The board may make rules regarding the privacy of such records and their use by others than the board and its staff. The board shall make such records available to prosecutorial and law enforcement agencies upon request.

(3) The secretary of corrections, all officers and employees of the department, and all other public officials shall at all times cooperate with the board and furnish to the board, its officers, and employees such information as may be necessary to enable it to perform its functions, and such superintendents and other employees shall at all times give the members of the board, its officers, and employees free access to all sexually dangerous offenders confined in penal institutions of the state.

NEW SECTION. Sec. 31. The board shall make all rules necessary to carry out the provisions of this chapter, and provide the forms of all documents necessary for its hearing procedures.

NEW SECTION. Sec. 32. This chapter shall not limit or circumscribe the powers of the governor to commute the sentence of or grant a pardon to, any convicted person, and the governor may cancel or revoke the community release granted to any sexually dangerous offender by the board. The written order of the governor cancelling or revoking such community release shall have the same force and effect and be executed in like manner as an order of the board.

NEW SECTION. Sec. 33. To assist the board in exercising its duties under this chapter, it shall be the duty of the board to thoroughly inform itself of the facts of the sexually dangerous offender's crime or crimes and of the offender as a personality. The department of corrections and the institutions under its control shall make available to the board on request its case investigations, any file or other record, in order to assist the board in developing information for carrying out the purpose of this section.

NEW SECTION. Sec. 34. Sexually dangerous offenders shall be eligible for out-of-state community release supervision to the same extent as probationers and parolees under RCW 9.95.270.

NEW SECTION. Sec. 35. (1) The board is authorized to deputize any person regularly employed by another state to act as an officer and agent of this state in effecting the return of any person who has violated the conditions of community release as granted by the state. In any matter relating to the return of such person, any agent so deputized shall have all the powers of a police officer of this state.

(2) Deputization under this section shall be in writing. A person who has been deputized under this section shall carry formal evidence of his or her deputization which shall be produced upon demand.

NEW SECTION. Sec. 36. (1) Whenever a sexually dangerous offender has performed the obligation of his or her release for the time that shall satisfy the board that the offender's final release is not incompatible with the best interests of society and the welfare of the offender, the board may make a final order of discharge and issue a certificate of discharge to the sexually dangerous offender. The board retains the jurisdiction to issue a certificate of discharge after the expiration of the prisoner's maximum statutory sentence. However, no order of discharge shall be made in any case within a period of eighteen months after the board has released a sexually dangerous offender on community release or the offender is released by the secretary due to expiration of the maximum sentence.

(2) The discharge, regardless of when issued, shall have the effect of restoring all civil rights lost by operation of law upon conviction and the certification of discharge shall so state. Sexually dangerous offenders subject to discharge shall continue to be subject to any sex offender registration requirements now or later enacted into law.

(3) The discharge provided for in this section shall be considered as a part of the sentence of the convicted person and shall not in any manner be construed as affecting the powers of the governor to pardon any such person. The order of final discharge shall contain a statement as to the prohibitions placed on convicted felons from possessing firearms under state and federal law and the requirement to register as a sex offender in the state of Washington.

NEW SECTION. Sec. 37. Each sexually dangerous offender released on community release shall be subject to the supervision of the department of corrections. Community corrections officers of the department shall be charged with the preparation of progress reports regarding such persons on community release and with the provision of guidance and supervision for such sexually dangerous offenders within the conditions of their release from custody. Copies of all progress reports prepared by the community corrections officer shall be supplied to the board for its files and records.

NEW SECTION. Sec. 38. (1) The secretary of corrections shall cause to be prepared plans and recommendations for the conditions of supervision under which each sexually dangerous offender who is eligible for community release may be released from custody. These plans and recommendations shall be submitted to the board which may, at its discretion, approve, reject, revise, or amend such plans and recommendations for the conditions of supervision of community release of sexually dangerous offenders from total confinement. In addition, the board may stipulate any special conditions of supervision to be carried out by the community corrections officer. The board shall have total discretion to maintain a sexually dangerous offender in total confinement for failure to develop an adequate community release plan. The plan shall contain an adequate provision for residence and employment, or educational training program.

(2) The conditions of supervision shall include:

(a) At no time have contact or communication of any kind with persons under the age of eighteen years without the prior written specific approval of the offender's community corrections officer;

(b) Obey all laws and court orders;

(c) At no time have contact or communication of any kind with prior victims of the offender's criminal acts, the victims' families or associates without the prior written permission of the offender's community corrections officer;

(d) At no time seek employment or association with organizations or employers if such employment or association would likely bring the offender into unsupervised contact with persons under the age of eighteen years or who are otherwise vulnerable to assaultive acts.

(3) The board may identify, impose, and enforce all other conditions of community release reasonably designed to protect the community and enhance the offender's likelihood of success in community release, including, but not limited to: (a) Prohibition of the use of nonprescription drugs and alcohol; (b) prohibition from frequenting places where children congregate; (c) prohibition of hitchhiking or picking up hitchhikers; (d) prohibition of possession of sexually explicit or pornographic materials; (e) submission to a polygraph; (f) maintaining a verified log of daily activities; and (g) geographic restrictions.

Sec. 39. Section 11, chapter 115, Laws of 1983 as last amended by section 24, chapter 143, Laws of 1988 and by section 5, chapter 157, Laws of 1988 and RCW 9.94A.400 are each reenacted and amended to read as follows:

(1) (a) Except as provided in (b) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.120 and 9.94A.390(2)(e) or any other provision of RCW 9.94A.390. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition does not apply in cases involving vehicular assault or vehicular homicide if the victims occupied the same vehicle. However, the sentencing judge may consider multiple victims in such instances as an aggravating circumstance under RCW 9.94A.390.

(b) Whenever a person is convicted of three or more serious violent offenses, as defined in RCW 9.94A.030, arising from separate and distinct criminal conduct, the sentence range for the offense with the highest seriousness level under RCW 9.94A.320 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the sentence range for other serious violent offenses shall be determined by using an offender score of zero. The sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.

(2) Whenever a person while under sentence of felony commits another felony and is sentenced to another term of confinement, the latter term shall not begin until expiration of all prior terms.

(3) Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.

(4) Whenever any person granted probation under RCW 9.95.210 or 9.92.060, or both, has the probationary sentence revoked and a prison sentence imposed, that sentence shall run consecutively to any sentence imposed pursuant to this chapter, unless the court pronouncing the subsequent sentence expressly orders that they be served concurrently.

(5) However, in the case of consecutive sentences, all periods of total confinement shall be served before any partial confinement, community service, community supervision, or any other requirement or conditions of any of the sentences. Except for exceptional sentences as authorized under RCW 9.94A.120(2), if two or more sentences that run consecutively include periods of community supervision, the aggregate of the community supervision period shall not exceed twenty-four months.

(6) For individuals committed to prison as sexually dangerous offenders under sections 7 through 38 of this act, who have multiple sentences, the following shall apply:

(a) All sexual offenses shall run consecutive to one another and consecutive to nonsexual offenses;

(b) The minimum and maximum sentences for sexual offenses shall not begin to run until all previous sentences for nonsexual offenses have expired;

(c) The sexually dangerous offenders sentence review board shall have authority to transfer time starts from the immediately preceding sentence for a nonsexual offense onto a sentence or sentences for which it has jurisdiction over a sexually dangerous offender. No subsequent consecutive sentence for a sexual offense for a sexually dangerous offender shall begin until the board has determined that a transfer of time start is in the best interests of the sexually dangerous offender and the community pursuant to section 20 of this act;

(d) Any sentence requiring community supervision or community custody on nonsexual offenses for sexually dangerous offenders shall be served concurrent with the offender's community release as sexually dangerous offenders. Discharge under RCW 9.94A.220 of any sentence for a nonsexual offense shall have no effect upon sentences, either the maximum and minimum, imposed by the court on sexually dangerous offenders except to give the board jurisdiction to determine the time start for sentences for sex offenses.

NEW SECTION. Sec. 40. Sections 7 through 38 of this act shall constitute a new chapter in Title 9 RCW.

NEW SECTION. Sec. 41. This act shall take effect July 1, 1990.

NEW SECTION. Sec. 42. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.