2319-S2.E AMS NELS S5599.2

2319-S2.E AMS NELS S5599.2

E2SHB 2319 - S AMD TO S AMD (S-5375.4/94) - 501

By Senators Nelson, Roach, Schow, Anderson, L. Smith and McDonald

On page 26, after line 14 of the amendment, insert the following:

"NEW SECTION. Sec. 401. The legislature finds that treatment of the emotional problems of victims and families of victims of sex offenses and victims of violent offenses may be impaired by lengthy delay in trial of the accused and the resulting delay in testimony of the victim or the victim's representative. The trauma of the abusive or violent incident is likely to be exacerbated by requiring testimony from a victim who has substantially completed therapy and is forced to relive the incident. The legislature finds that it is necessary to prevent, to the extent reasonably possible, lengthy and unnecessary delays in trial of a person charged with a sex offense or of a violent offense.

NEW SECTION. Sec. 402. A new section is added to chapter 10.46 RCW to read as follows:

When a defendant is charged with a violent offense as defined in RCW 9.94A.030 which constitutes a violation of RCW 9A.64.020 or chapter 9.68, 9.68A, 9A.32, 9A.36, 9A.40, 9A.42, 9A.44, or 9A.46 RCW, neither the defendant nor the prosecuting attorney may agree to extend the originally scheduled trial date unless, after a hearing, the court finds that there are substantial and compelling reasons for a continuance of the trial date and that the benefit of the postponement outweighs the detriment to the victim or, if the victim is deceased, to the victim's family. At the hearing the court shall consider the testimony of lay witnesses and of expert witnesses, if available, regarding the impact of the continuance on the victim. Whenever the court grants the request for a continuance, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.

Sec. 403. RCW 9.94A.390 and 1990 c 3 s 603 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 current offense included a finding of sexual motivation pursuant to RCW 9.94A.127;

(f) 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))

(g) 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

(h) The current offense is a sexually violent offense as defined by RCW 9.94A.030 and either:

(i) The offender committed the current offense within twenty-four months of a conviction or convictions for a sexually violent offense or offenses, whether the offender was an adult or juvenile, when the offender committed the prior sexually violent offense or offenses. The twenty-four month period shall be tolled during any time period the offender is confined in jail, prison, a mental institution, or a juvenile detention or correctional facility, and is not in the community; or

(ii) The offender's criminal history includes two prior convictions for sexually violent offenses, whether the offender was an adult or a juvenile when the offender committed the prior sexually violent offenses.

When the court imposes an exceptional sentence under subsection (2)(h)(i) or (ii) of this section, the court may sentence the offender to a prison term up to life imprisonment as provided in RCW 9.94A.120. This subsection (2)(h) shall be effective only if the supreme court of Washington in a final decision holds that chapter 71.09 RCW is invalid.

Sec. 404. RCW 13.40.030 and 1989 c 407 s 3 are each amended to read as follows:

(1)(a) The juvenile disposition standards commission shall recommend to the legislature no later than November 1st of each year disposition standards for all offenses. The standards shall establish, in accordance with the purposes of this chapter, ranges which may include terms of confinement and/or community supervision established on the basis of a youth's age, the instant offense, and the history and seriousness of previous offenses, but in no case may the period of confinement and supervision exceed that to which an adult may be subjected for the same offense(s). Standards recommended for offenders listed in RCW 13.40.020(1) shall include a range of confinement which may not be less than thirty days. No standard range may include a period of confinement which includes both more than thirty, and thirty or less, days. Disposition standards recommended by the commission shall provide that in all cases where a youth is sentenced to a term of confinement in excess of thirty days the department may impose an additional period of parole not to exceed eighteen months, except that in the case of a juvenile sentenced for rape in the first or second degree, rape of a child in the first or second degree, child molestation in the first degree, or indecent liberties with forcible compulsion, the parole period shall be twenty-four months. Standards of confinement which may be proposed may relate only to the length of the proposed terms and not to the nature of the security to be imposed. In developing recommended disposition standards, the commission shall consider the capacity of the state juvenile facilities and the projected impact of the proposed standards on that capacity.

(b) The secretary shall submit guidelines pertaining to the nature of the security to be imposed on youth placed in his or her custody based on the age, offense(s), and criminal history of the juvenile offender. Such guidelines shall be submitted to the legislature for its review no later than November 1st of each year. At the same time the secretary shall submit a report on security at juvenile facilities during the preceding year. The report shall include the number of escapes from each juvenile facility, the most serious offense for which each escapee had been confined, the number and nature of offenses found to have been committed by juveniles while on escape status, the number of authorized leaves granted, the number of failures to comply with leave requirements, the number and nature of offenses committed while on leave, and the number and nature of offenses committed by juveniles while in the community on minimum security status; to the extent this information is available to the secretary. The department shall include security status definitions in the security guidelines it submits to the legislature pursuant to this section.

(2) In developing recommendations for the permissible ranges of confinement under this section the commission shall be subject to the following limitations:

(a) Where the maximum term in the range is ninety days or less, the minimum term in the range may be no less than fifty percent of the maximum term in the range;

(b) Where the maximum term in the range is greater than ninety days but not greater than one year, the minimum term in the range may be no less than seventy-five percent of the maximum term in the range; and

(c) Where the maximum term in the range is more than one year, the minimum term in the range may be no less than eighty percent of the maximum term in the range."

Renumber the remaining sections consecutively and correct internal references accordingly.

E2SHB 2319 - S AMD TO S AMD (S-5375.4/94)

By Senator

On page 159, line 21 of the title amendment, after "70.190.900," insert "9.94A.390, 13.40.030,"

E2SHB 2319 - S AMD TO S AMD (S-5375.4/94)

By Senator

On page 160, line 2 of the title amendment, after "43.20A RCW;" insert "adding a new section to chapter 10.46 RCW;"