5451-S2 AAS 4/14/93 S3256.1

2SSB 5451 - S AMD - 000768

By Senators Hargrove, A. Smith and Rinehart

                                                   ADOPTED 4/14/93

    Strike everything after the enacting clause and insert the following:

    "NEW SECTION. Sec. 1.  The legislature finds that crowded prisons are clearly one of the most pressing problems facing the criminal justice system today.  Even the most conservative estimates indicate that despite our aggressive prison construction plan we will not be able to build enough prison beds to keep pace with expected growth in the prison population over the next ten years.  The huge increase in our prison population is not only the result of more individuals committing serious crimes but also because most offenders released from prison will return again.  Our corrections system has become a high-cost institution that perpetually recycles inmates without deterring crime.  As a result of these conditions, serious concerns have been raised about our current corrections philosophy.  Attention must be directed towards implementing a long-range corrections strategy that focuses on inmate responsibility through work training, the development of mature and marketable job skills, and requiring inmates to pay for the cost of their incarceration.

    The combined cost of housing, maintaining, and supervising inmates in our state corrections facilities is increasing beyond our capability to pay.  The legislature recognizes that the responsibility for criminal activity must fall squarely on the criminal.  Society should not have to pay the price for crimes twice, once for the criminal act and then again by feeding, clothing, and housing the offender.  The corrections system must be the first place where criminal offenders are given the opportunity to be responsible for paying for their criminal activity, not just through the loss of their freedom, but also by working while in prison and contributing an appropriate portion of their wages to the cost of their incarceration.  Allowing offenders to become responsible through working in meaningful jobs for real wages can be a beneficial opportunity for corrections.  Everyone profits from a successful corrections industry program -- the prison system, taxpayers, the community, families, and the inmate.  Most important, an inmate who is drug-free and has mature job skills is significantly more likely not to return to prison.

    It is the purpose and intent of this act to outline a comprehensive strategy for reducing upwardly spiraling prison costs through an inmate work responsibility program, preserving scarce prison cell space for our most dangerous offenders, and providing judges with alternatives to incarceration, including drug rehabilitation, that must be used without jeopardizing public safety.

    Sec. 2.  RCW 9.94A.030 and 1992 c 145 s 6 and 1992 c 75 s 1 are each reenacted and amended to read as follows:

    Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

    (1) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department of corrections, means that the department is responsible for monitoring and enforcing the offender's sentence with regard to the legal financial obligation, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account.

    (2) "Commission" means the sentencing guidelines commission.

    (3) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions.

    (4) "Community custody" means that portion of an inmate's sentence of confinement in lieu of earned early release time or imposed under RCW 9.94A.120(7) served in the community subject to controls placed on the inmate's movement and activities by the department of corrections.

    (5) "Community placement" means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release.  Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

    (6) "Community service" means compulsory service, without compensation, performed for the benefit of the community by the offender.

    (7) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 46.61.524.  For first-time offenders, the supervision may include crime-related prohibitions and other conditions imposed pursuant to RCW 9.94A.120(5).  For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.

    (8) "Confinement" means total or partial confinement as defined in this section.

    (9) "Conviction" means an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.

    (10) "Court-ordered legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction.

    (11) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct.

    (12)(a) "Criminal history" means the list of a defendant's prior convictions, whether in this state, in federal court, or elsewhere.  The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.

    (b) "Criminal history" shall always include juvenile convictions for sex offenses and shall also include a defendant's other prior convictions in juvenile court if:  (i) The conviction was for an offense which is a felony or a serious traffic offense and is criminal history as defined in RCW 13.40.020(6)(a); (ii) the defendant was fifteen years of age or older at the time the offense was committed; and (iii) with respect to prior juvenile class B and C felonies or serious traffic offenses, the defendant was less than twenty-three years of age at the time the offense for which he or she is being sentenced was committed.

    (13) "Day fine" means a fine imposed by the sentencing judge that equals the difference between the offender's net daily income and the reasonable obligations that the offender has for the support of the offender and any dependents.

(14) "Day reporting" means reporting at least once per day to a specific location designated by the department or the sentencing judge together with the requirement that the offender's location throughout each day be reported to the department.

(15) "Department" means the department of corrections.

    (((14))) (16) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community service work, or dollars or terms of a legal financial obligation.  The fact that an offender through "earned early release" can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.

    (((15))) (17) "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of any amount required by law to be withheld.  For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.

    (((16))) (18) "Drug offense" means:

    (a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403);

    (b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or

    (c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection.

    (((17))) (19) "Escape" means:

    (a) Escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful failure to return from work release (RCW 72.65.070), or willful failure to be available for supervision by the department while in community custody (RCW 72.09.310); or

    (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection.

    (((18))) (20) "Felony traffic offense" means:

    (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4)); or

    (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection.

    (((19))) (21) "Fines" means the requirement that the offender pay a specific sum of money over a specific period of time to the court.

    (((20))) (22)(a) "First-time offender" means any person who is convicted of a felony (i) not classified as a violent offense or a sex offense under this chapter, or (ii) that is not the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in schedule I or II that is a narcotic drug or the selling for profit (([of])) of any controlled substance or counterfeit substance classified in schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana, and except as provided in (b) of this subsection, who previously has never been convicted of a felony in this state, federal court, or another state, and who has never participated in a program of deferred prosecution for a felony offense.

    (b) For purposes of (a) of this subsection, a juvenile adjudication for an offense committed before the age of fifteen years is not a previous felony conviction except for adjudications of sex offenses.

    (((21))) (23) "Home detention" means a program of partial confinement available to offenders in which the offender is confined in a private residence subject to electronic surveillance.  Home detention may not be imposed for offenders convicted of a violent offense, a sex offense, a drug offense, reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050, assault in the third degree as defined in RCW 9A.36.031, assault of a child in the third degree, unlawful imprisonment as defined in RCW 9A.40.040, or harassment as defined in RCW 9A.46.020.  Home detention may be imposed for offenders convicted of possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403) if the offender fulfills the participation conditions set forth in this subsection and is monitored for drug use by treatment alternatives to street crime (TASC) or a comparable court or agency-referred program.

(a) Home detention may be imposed for offenders convicted of burglary in the second degree as defined in RCW 9A.52.030 or residential burglary conditioned upon the offender:  (i) Successfully completing twenty-one days in a work release program, (ii) having no convictions for burglary in the second degree or residential burglary during the preceding two years and not more than two prior convictions for burglary or residential burglary, (iii) having no convictions for a violent felony offense during the preceding two years and not more than two prior convictions for a violent felony offense, (iv) having no prior charges of escape, and (v) fulfilling the other conditions of the home detention program.

(b) Participation in a home detention program shall be conditioned upon:  (i) The offender obtaining or maintaining current employment or attending a regular course of school study at regularly defined hours, or the offender performing parental duties to offspring or minors normally in the custody of the offender, (ii) abiding by the rules of the home detention program, and (iii) compliance with court-ordered legal financial obligations.  The home detention program may also be made available to offenders whose charges and convictions do not otherwise disqualify them if medical or health-related conditions, concerns, or treatment would be better addressed under the home detention program, or where the health and welfare of the offender, other inmates, or staff would be jeopardized by the offender's incarceration.  Participation in the home detention program for medical or health-related reasons is conditioned on the offender abiding by the rules of the home detention program and complying with court-ordered restitution.

(24) "Inpatient treatment" means participation in a treatment program certified by the state that requires the offender to be in residence at the facility.

(25) "Nonviolent offense" means an offense which is not a violent offense.

    (((22))) (26) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110.  Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.

    (((23))) (27) "Outpatient treatment" means participation in a treatment program certified by the state or recommended by the department that does not require the offender to be present for more than twelve hours per day.

(28) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community.  Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention as defined in this section.

    (((24))) (29) "Postrelease supervision" is that portion of an offender's community placement that is not community custody.

    (((25))) (30) "Restitution" means the requirement that the offender pay a specific sum of money over a specific period of time to the court as payment of damages.  The sum may include both public and private costs.  The imposition of a restitution order does not preclude civil redress.

    (((26))) (31) "Serious traffic offense" means:

    (a) Driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502), actual physical control while under the influence of intoxicating liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)); or

    (b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection.

    (((27))) (32) "Serious violent offense" is a subcategory of violent offense and means:

    (a) Murder in the first degree, homicide by abuse, murder in the second degree, assault in the first degree, kidnapping in the first degree, or rape in the first degree, assault of a child in the first degree, or an attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or

    (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection.

    (((28))) (33) "Sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.

    (((29))) (34) "Sex offense" means:

    (a) A felony that is a violation of chapter 9A.44 RCW or RCW 9A.64.020 or 9.68A.090 or that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

    (b) A felony with a finding of sexual motivation under RCW 9.94A.127; or

    (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.

    (((30))) (35) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.

    (((31))) (36) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.

    (((32))) (37) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.

    (((33))) (38) "Violent offense" means:

    (a) Any of the following felonies, as now existing or hereafter amended:  Any felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, kidnapping in the second degree, arson in the second degree, assault in the second degree, assault of a child in the second degree, extortion in the first degree, robbery in the second degree, vehicular assault, and vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

    (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and

    (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection.

    (((34))) (39) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community of not less than thirty-five hours per week that complies with RCW 9.94A.135.  The civic improvement tasks shall be performed on public property or on private property owned or operated by nonprofit entities, except that, for emergency purposes only, work crews may perform snow removal on any private property.  The civic improvement tasks shall have minimal negative impact on existing private industries or the labor force in the county where the service or labor is performed.  The civic improvement tasks shall not affect employment opportunities for people with developmental disabilities contracted through sheltered workshops as defined in RCW 82.04.385.  Only those offenders sentenced to a facility operated or utilized under contract by a county are eligible to participate on a work crew.  Offenders sentenced for a sex offense as defined in subsection (((29))) (34) of this section are not eligible for the work crew program.

    (((35))) (40) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school.  Participation in work release shall be conditioned upon the offender attending work or school at regularly defined hours and abiding by the rules of the work release facility.

    (((36) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.  Home detention may not be imposed for offenders convicted of a violent offense, any sex offense, any drug offense, reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050, assault in the third degree as defined in RCW 9A.36.031, assault of a child in the third degree, unlawful imprisonment as defined in RCW 9A.40.040, or harassment as defined in RCW 9A.46.020.  Home detention may be imposed for offenders convicted of possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403) if the offender fulfills the participation conditions set forth in this subsection and is monitored for drug use by treatment alternatives to street crime (TASC) or a comparable court or agency-referred program.

    (a) Home detention may be imposed for offenders convicted of burglary in the second degree as defined in RCW 9A.52.030 or residential burglary conditioned upon the offender:  (i) Successfully completing twenty-one days in a work release program, (ii) having no convictions for burglary in the second degree or residential burglary during the preceding two years and not more than two prior convictions for burglary or residential burglary, (iii) having no convictions for a violent felony offense during the preceding two years and not more than two prior convictions for a violent felony offense, (iv) having no prior charges of escape, and (v) fulfilling the other conditions of the home detention program.

    (b) Participation in a home detention program shall be conditioned upon:  (i) The offender obtaining or maintaining current employment or attending a regular course of school study at regularly defined hours, or the offender performing parental duties to offspring or minors normally in the custody of the offender, (ii) abiding by the rules of the home detention program, and (iii) compliance with court-ordered legal financial obligations.  The home detention program may also be made available to offenders whose charges and convictions do not otherwise disqualify them if medical or health-related conditions, concerns or treatment would be better addressed under the home detention program, or where the health and welfare of the offender, other inmates, or staff would be jeopardized by the offender's incarceration.  Participation in the home detention program for medical or health-related reasons is conditioned on the offender abiding by the rules of the home detention program and complying with court-ordered restitution.))

    Sec. 3.  RCW 9.94A.120 and 1992 c 145 s 7 and 1992 c 75 s 2 are each reenacted and 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), (4), (5), ((and)) (7), (8), and (21) 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 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.

    (4)(a) 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.

(b) An offender convicted of the crime of assault in the first degree or assault of a child 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.

(c) An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than five years, and shall not be eligible for furlough, work release or other authorized leave of absence from the correctional facility during such minimum five-year term except for the purpose of commitment to an inpatient treatment facility.

(d) An offender shall be sentenced to a minimum term of confinement of not less than fifteen years if the offender (i) while committed to a state correctional facility for murder in the first or second degree, homicide by abuse, assault in the first or second degree, rape in the first or second degree, kidnapping in the first degree, robbery in the first degree, arson in the first degree, or burglary in the first degree; (ii) commits the crime of murder in the second degree, assault in the first or second degree, rape in the first or second degree, arson in the first or second degree, or robbery in the first or second degree.  The sentence shall be served consecutive to any term of confinement remaining on the offense or offenses for which the offender was committed to the state institution as provided in RCW 9.94A.400 (2) and (5).  An offender who commits murder in the first degree while committed to a state institution for the conviction of one of the offenses listed in (d)(ii) of this subsection shall serve his or her sentence consecutive to any term of confinement remaining on the offense or offenses for which the offender was committed to the state institution.  RCW 9A.20.021(1)(b), which provides that the statutory maximum for class B felonies is ten years, does not apply to the crimes identified in (d)(ii) of this subsection when committed in a state correctional facility by an offender who is committed to the state institution for a crime listed in (d)(i) of this subsection.  In these circumstances, the statutory maximum is a term of life imprisonment.

    The foregoing minimum terms of total confinement, specified in (a), (b), (c), and (d) of this subsection, 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)) one year((s)) 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)) one year, or inpatient treatment not to exceed the standard range of confinement for that offense;

    (c) Pursue a prescribed, secular course of study or vocational training;

    (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) An offender is eligible for the special drug offender sentencing alternative if:

(i) The offender is convicted of the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in schedule I or II that is a narcotic drug and the violation does not involve a sentence enhancement under RCW 9.94A.310(3);

(ii) The offender has no prior or other current convictions for a felony in this state, another state, or the United States;

(iii) The offender has not previously been sentenced under this special drug offender sentencing alternative;

(iv) The offense involved only a small quantity of the particular controlled substance, as determined by the sentencing judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance.

(b) If the sentencing judge determines that the offender is eligible for this option and that the offender and the community will benefit from the use of the special drug offender sentencing alternative, the judge may waive imposition of a sentence within the standard range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard range.  No more than three months of the sentence may be served in a work release status.  The court shall also impose one year of community custody that must include crime-related prohibitions, a condition to not use illegal controlled substances, and to submit to urinalysis or other testing to monitor that status.  In addition, the court may impose any of the following conditions:

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

(ii) Participate in outpatient substance abuse treatment;

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

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

(v) Pay all court-ordered legal financial obligations;

(vi) Perform community service work;

(vii) Pay a day fine;

(viii) Stay out of areas designated by the sentencing judge;

(ix) Undergo day reporting.

(c) If the offender violates any of the sentence conditions in (b) of this subsection, the department shall impose sanctions administratively, with notice to the prosecuting attorney and the sentencing court.  Upon motion of the court or the prosecuting attorney, a violation hearing shall be held by the court.  If the court finds that conditions have been willfully violated, the court may impose confinement consisting of the remaining one-half of the midpoint of the standard range.  All total confinement served during the period of community custody shall be credited to the offender, regardless of whether the total confinement is served as a result of the original sentence, as a result of a sanction imposed by the department of corrections, or as a result of a violation found by the court.

(8)(a)(i) When an offender is convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious violent offense and has no prior convictions for a sex offense or any other felony sex 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.

    The report of the examination shall include at a minimum the following:  The defendant's version of the facts and the official version of the facts, the defendant's offense history, an assessment of problems in addition to alleged deviant behaviors, the offender's social and employment situation, and other evaluation measures used.  The report shall set forth the sources of the evaluator's information.

    The examiner shall assess and report regarding the defendant's amenability to treatment and relative risk to the community.  A proposed treatment plan shall be provided and shall include, at a minimum:

    (A) Frequency and type of contact between offender and therapist;

    (B) Specific issues to be addressed in the treatment and description of planned treatment modalities;

    (C) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others;

    (D) Anticipated length of treatment; and

    (E) Recommended crime-related prohibitions.

    The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment.  The evaluator shall be selected by the party making the motion.  The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

    (ii) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this special sexual offender sentencing alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this subsection.  If the court determines that this special sex offender sentencing alternative is appropriate, the court shall then impose a sentence within the sentence range.  If this sentence is less than eight years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension:

    (A) The court shall place the defendant on community supervision for the length of the suspended sentence or three years, whichever is greater; and

    (B) The court shall order treatment for any period up to three years in duration.  The court in its discretion shall order outpatient sex offender treatment or inpatient sex offender treatment, if available.  A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment.  The offender shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the community corrections officer, and the court, and shall not change providers without court approval after a hearing if the prosecutor or community corrections officer object to the change.  In addition, as conditions 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) 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) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030, perform community service work, or any combination thereof; or

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

    (iii) The sex offender therapist shall submit quarterly reports on the defendant's progress in treatment to the court and the parties.  The report shall reference the treatment plan and include at a minimum the following:  Dates of attendance, defendant's compliance with requirements, treatment activities, the defendant's relative progress in treatment, and any other material as specified by the court at sentencing.

    (iv) At the time of sentencing, the court shall set a treatment termination hearing for three months prior to the anticipated date for completion of treatment.  Prior to the treatment termination hearing, the treatment professional and community corrections officer shall submit written reports to the court and parties regarding the defendant's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment, including proposed community supervision conditions.  Either party may request and the court may order another evaluation regarding the advisability of termination from treatment.  The defendant shall pay the cost of any additional evaluation ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.  At the treatment termination hearing the court may:  (A) Modify conditions of community supervision, and either (B) terminate treatment, or (C) extend treatment for up to the remaining period of community supervision.

    (v) The court may revoke the suspended sentence at any time during the period of community supervision and order execution of the sentence if:  (A) The defendant violates the conditions of the suspended sentence, or (B) the court finds that the defendant is failing to make satisfactory progress in treatment.  All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.

    (vi) Except as provided in (a)(vii) of this subsection, after July 1, 1991, examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW.

    (vii) A sex offender therapist who examines or treats a sex offender pursuant to this subsection (((7))) (8) does not have to be certified by the department of health pursuant to chapter 18.155 RCW if the court finds that:  (A) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (B) no certified providers are available for treatment within a reasonable geographical distance of the offender's home; and (C) the evaluation and treatment plan comply with this subsection (((7))) (8) and the rules adopted by the department of health.

    For purposes of this subsection, "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a result of the crime charged.  "Victim" also means a parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

    (b) When an offender is convicted of any felony sex 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 sex 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, 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 or her 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 or her 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 sex offense committed prior to July 1, 1987.  This subsection (c) does not apply to any crime committed after July 1, 1990.

    (d) Offenders convicted and sentenced for a sex offense committed prior to July 1, 1987, may, subject to available funds, request an evaluation by the department of corrections to determine whether they are amenable to treatment.  If the offender is determined to be amenable to treatment, the offender may request placement in a treatment program within a correctional facility operated by the department.  Placement in such treatment program is subject to available funds.

    (((8))) (9)(a) When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense or a serious violent offense committed after July 1, 1988, but before July 1, 1990, assault in the second degree, assault of a child 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) and (2).  When the court sentences an offender under this subsection 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) and (2).  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 to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense or serious violent offense committed on or after July 1, 1990, the court shall in addition to other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned early release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.  The community placement shall begin 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) and (2).  When the court sentences an offender under this subsection to the statutory maximum period of confinement then the community placement portion of the sentence shall consist entirely of the community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).  Any period of community custody actually served shall be credited against the community placement portion of the sentence.  Unless a condition is waived by the court, the terms of community placement for offenders sentenced pursuant to this section shall include 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;

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

    (vi) The residence location and living arrangements are subject to the prior approval of the department of corrections during the period of community placement.

    (c) The court may also order any of the following special conditions:

    (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; or

    (v) 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.

    (((9))) (10) 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))) (11) 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))) (12) 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))) (13) All offenders sentenced to terms involving community supervision, community service, community placement, 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, notifying the community corrections officer of any change in the offender's address or employment, and paying the supervision fee assessment.

    (((13))) (14) All offenders sentenced to terms involving community supervision, community service, or community placement under the supervision of the department of corrections shall not own, use, or possess firearms or ammunition.  Offenders who own, use, or are found to be in actual or constructive possession of firearms or ammunition shall be subject to the appropriate violation process and sanctions.  "Constructive possession" as used in this subsection means the power and intent to control the firearm or ammunition.  "Firearm" as used in this subsection means a weapon or device from which a projectile may be fired by an explosive such as gunpowder.

    (((14))) (15) 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.

    (((15))) (16) 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).

    (((16))) (17) 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 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.

    (((17))) (18) 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 or community placement.

    (((18))) (19) In any sentence of partial confinement, the court may require the defendant to serve the partial confinement in work release, in a program of home detention, on work crew, or in a combined program of work crew and home detention.

    (((19))) (20) 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.

(21) An offender shall be sentenced to a minimum term of confinement of not less than fifteen years or a determinate term within the standard range, whichever is greater, if the offender (a) while committed to a state correctional facility for murder in the first or second degree, homicide by abuse, assault in the first or second degree, rape in the first or second degree, kidnapping in the first degree, robbery in the first degree, arson in the first degree, or burglary in the first degree; (b) commits the crime of murder in the second degree, assault in the first or second degree, rape in the first or second degree, arson in the first or second degree, or robbery in the first or second degree.  The court may impose an exceptional sentence above the mandatory minimum term or the standard range for the offense based on the existence of aggravating factors as provided in RCW 9.94A.390, but may not impose an exceptional sentence below the mandatory minimum or standard range.  The term imposed shall be served consecutive to any term of confinement remaining on the offense or offenses for which the offender was committed to the state institution as provided in RCW 9.94A.400 (2) and (5).  An offender who commits murder in the first degree while committed to a state institution for the conviction of one of the offenses listed in (b) of this subsection shall serve his or her sentence consecutive to any term of confinement remaining on the offense or offenses for which the offender was committed to the state institution.  RCW 9A.20.021(1)(b), which provides that the statutory maximum for class B felonies is ten years, does not apply to the crimes identified in (b) of this subsection when committed in a state correctional facility by an offender who is committed to the state institution for a crime listed in (a) of this subsection.  In these circumstances, the statutory maximum is a term of life imprisonment.

    Sec. 4.  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 or her conduct or to conform his or her 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 defendant is being sentenced for an offense involving the use or threatened use of physical violence and poses a future danger of violent behavior that will not be sufficiently mitigated by a period of incarceration within the standard range.  This finding may be made upon conviction of any violent offense and must be supported by:

(i) A history of similar misconduct.  This history may be established by prior criminal convictions or other competent evidence; and

(ii) A finding that the defendant is not amenable to treatment.  The following are among the factors the court may consider in making such a finding:

(A) The opinion of a mental health professional that the defendant would likely not be amenable to treatment;

(B) The defendant has been refused treatment at all available facilities;

(C) The defendant refuses to cooperate with necessary evaluations to determine the usefulness of treatment; or

(D) The current offense was committed less than six months after the defendant was released from incarceration for a similar offense.

(f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.127((;)).

    (((f))) (g) 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))) (h) 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.

    Sec. 5.  RCW 9.94A.440 and 1992 c 145 s 11 and 1992 c 75 s 5 are each reenacted and amended to read as follows:

    (1) Decision not to prosecute.

    STANDARD:  A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.

    GUIDELINE/COMMENTARY:

    Examples

    The following are examples of reasons not to prosecute which could satisfy the standard.

    (a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute.

    (b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that:

    (i) It has not been enforced for many years; and

    (ii) Most members of society act as if it were no longer in existence; and

    (iii) It serves no deterrent or protective purpose in today's society; and

    (iv) The statute has not been recently reconsidered by the legislature.

    This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce.

    (c) De Minimus Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution.

    (d) Confinement on Other Charges - Except for crimes committed by prisoners in state correctional facilities as provided in RCW 9.94A.120(21), it may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and

    (i) Conviction of the new offense would not merit any additional direct or collateral punishment;

    (ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and

    (iii) Conviction of the new offense would not serve any significant deterrent purpose.

    (e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and

    (i) Conviction of the new offense would not merit any additional direct or collateral punishment;

    (ii) Conviction in the pending prosecution is imminent;

    (iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and

    (iv) Conviction of the new offense would not serve any significant deterrent purpose.

    (f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question.  This reason should be limited to minor cases and should not be relied upon in serious cases.

    (g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.

    (h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused's information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest.

    (i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations:

    (i) Assault cases where the victim has suffered little or no injury;

    (ii) Crimes against property, not involving violence, where no major loss was suffered;

    (iii) Where doing so would not jeopardize the safety of society.

    Care should be taken to insure that the victim's request is freely made and is not the product of threats or pressure by the accused.

    The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced.

    Notification

    The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute.

    (2) Decision to prosecute.

    STANDARD:

    Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact-finder.  With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW 9.94A.120(((7)))(8).

    Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact-finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised.

    See table below for the crimes within these categories.

        CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS

    CRIMES AGAINST PERSONS

    Aggravated Murder

    1st Degree Murder

    2nd Degree Murder

    1st Degree Kidnaping

    1st Degree Assault

    1st Degree Assault of a Child

    1st Degree Rape

    1st Degree Robbery

    1st Degree Rape of a Child

    1st Degree Arson

    2nd Degree Kidnaping

    2nd Degree Assault

    2nd Degree Assault of a Child

    2nd Degree Rape

    2nd Degree Robbery

    1st Degree Burglary

    1st Degree Manslaughter

    2nd Degree Manslaughter

    1st Degree Extortion

    Indecent Liberties

    Incest

    2nd Degree Rape of a Child

    Vehicular Homicide

    Vehicular Assault

    3rd Degree Rape

    3rd Degree Rape of a Child

    1st Degree Child Molestation

    2nd Degree Child Molestation

    3rd Degree Child Molestation

    2nd Degree Extortion

    1st Degree Promoting Prostitution

    Intimidating a Juror

    Communication with a Minor

    Intimidating a Witness

    Intimidating a Public Servant

    Bomb Threat (if against person)

    3rd Degree Assault

    3rd Degree Assault of a Child

    Unlawful Imprisonment

    Promoting a Suicide Attempt

    Riot (if against person)

    CRIMES AGAINST PROPERTY/OTHER CRIMES

    2nd Degree Arson

    1st Degree Escape

    2nd Degree Burglary

    1st Degree Theft

    1st Degree Perjury

    1st Degree Introducing Contraband

    1st Degree Possession of Stolen Property

    Bribery

    Bribing a Witness

    Bribe received by a Witness

    Bomb Threat (if against property)

    1st Degree Malicious Mischief

    2nd Degree Theft

    2nd Degree Escape

    2nd Degree Introducing Contraband

    2nd Degree Possession of Stolen Property

    2nd Degree Malicious Mischief

    1st Degree Reckless Burning

    Taking a Motor Vehicle without Authorization

    Forgery

    2nd Degree Perjury

    2nd Degree Promoting Prostitution

    Tampering with a Witness

    Trading in Public Office

    Trading in Special Influence

    Receiving/Granting Unlawful Compensation

    Bigamy

    Eluding a Pursuing Police Vehicle

    Willful Failure to Return from Furlough

    Escape from Community Custody

    Riot (if against property)

    Thefts of Livestock

    ALL OTHER UNCLASSIFIED FELONIES

    Selection of Charges/Degree of Charge

    (1) The prosecutor should file charges which adequately describe the nature of defendant's conduct.  Other offenses may be charged only if they are necessary to ensure that the charges:

    (a) Will significantly enhance the strength of the state's case at trial; or

    (b) Will result in restitution to all victims.

    (2) The prosecutor should not overcharge to obtain a guilty plea.  Overcharging includes:

    (a) Charging a higher degree;

    (b) Charging additional counts.

    This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant's criminal conduct, but to decline to charge crimes which are not necessary to such an indication.  Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged.

    GUIDELINES/COMMENTARY:

    Police Investigation

    A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute.  The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made.  In ordinary circumstances the investigation should include the following:

    (1) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible;

    (2) The completion of necessary laboratory tests; and

    (3) The obtaining, in accordance with constitutional requirements, of the suspect's version of the events.

    If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.

    Exceptions

    In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if:

    (1) Probable cause exists to believe the suspect is guilty; and

    (2) The suspect presents a danger to the community or is likely to flee if not apprehended; or

    (3) The arrest of the suspect is necessary to complete the investigation of the crime.

    In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner.  If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed.

    Investigation Techniques

    The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including:

    (1) Polygraph testing;

    (2) Hypnosis;

    (3) Electronic surveillance;

    (4) Use of informants.

    Pre-Filing Discussions with Defendant

    Discussions with the defendant or ((his/her)) a representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached.

    Sec. 6.  RCW 9.95.0011 and 1989 c 259 s 4 are each amended to read as follows:

    (1) The indeterminate ((sentencing)) sentence review board shall cease to exist on June 30, 1998.  Prior to June 30, 1998, the board shall review each inmate convicted of crimes committed before July 1, 1984, and prepare a report.  This report shall include a recommendation regarding the offender's suitability for parole, appropriate parole conditions, and, for those persons committed under a mandatory life sentence, duration of confinement.

    (2) ((The governor, through the office of financial management, shall recommend to the legislature alternatives for carrying out the duties of)) To facilitate termination of the board on June 30, 1998, the board shall prepare a detailed plan and recommendations for the transfer of jurisdiction over inmates and parolees remaining subject to the indeterminate sentencing system.  The plan shall consider ex post facto issues and public safety concerns.  In developing recommendations, the ((office of financial management)) board shall consult with the ((indeterminate sentence review board)) office of financial management, the attorney general, the Washington association of prosecuting attorneys, the Washington defender association, the department of corrections, and the administrator for the courts.  Recommendations shall include an indication of to whom jurisdiction over the inmates and parolees should be transferred, a detailed fiscal analysis, and if necessary, recommended formulas and procedures for the reimbursement of costs to local governments ((if necessary)).  The plan and recommendations shall be presented to the ((1997)) legislature no later than December 1, 1995.

    Sec. 7.  RCW 9.95.210 and 1992 c 86 s 1 are each amended to read as follows:

    In granting probation, the court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer.

     In the order granting probation and as a condition thereof, the court may in its discretion imprison the defendant in the county jail for a period not exceeding one year and may fine the defendant any sum not exceeding the statutory limit for the offense committed, and court costs.  As a condition of probation, the court shall require the payment of the penalty assessment required by RCW 7.68.035.  The court may also require the defendant to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary (1) to comply with any order of the court for the payment of family support, (2) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement, (3) to pay such fine as may be imposed and court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, (4) following consideration of the financial condition of the person subject to possible electronic monitoring, to pay for the costs of electronic monitoring if that monitoring was required by the court as a condition of release from custody or as a condition of probation, and (5) to contribute to a county or interlocal drug fund, and may require bonds for the faithful observance of any and all conditions imposed in the probation.  In the case of felony offense, the court shall order the probationer to report to the secretary of corrections or such officer as the secretary may designate and as a condition of the probation to follow implicitly the instructions of the secretary.  Misdemeanants shall be assigned to the county for probation.  If the probationer has been ordered to make restitution, the officer supervising the probationer shall make a reasonable effort to ascertain whether restitution has been made.  If restitution has not been made as ordered, the officer shall inform the prosecutor of that violation of the terms of probation not less than three months prior to the termination of the probation period.  The secretary of corrections will promulgate rules and regulations for the conduct of the person during the term of probation.  For defendants found guilty in district court, like functions as the secretary performs in regard to probation may be performed by probation officers employed for that purpose by the county legislative authority of the county wherein the court is located.

    Sec. 8.  RCW 9.96.050 and 1980 c 75 s 1 are each amended to read as follows:

    When a prisoner on parole has performed the obligations of his or her release for such time as shall satisfy the indeterminate sentence review board ((of prison terms and paroles)) that his or her final release is not incompatible with the best interests of society and the welfare of the paroled individual, the board may make a final order of discharge and issue a certificate of discharge to the prisoner.  The board retains the jurisdiction to issue a certificate of discharge after the expiration of the prisoner's or parolee's maximum statutory sentence((:  PROVIDED, That no such order of discharge shall be made in any case within a period of less than one year from the date on which the board has conditionally discharged the parolee from active supervision by a probation and parole officer, except where the parolee's maximum statutory sentence expires earlier)).  If not granted earlier, the board shall make a final order of discharge three years from the date of parole unless the parolee is on suspended or revoked status at the expiration of the three years.  Such 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.  This restoration of civil rights does not restore the right to receive, possess, own, or transport firearms.

    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.

    Sec. 9.  RCW 9A.20.021 and 1982 c 192 s 10 are each amended to read as follows:

    (1) Felony.  No person convicted of a classified felony shall be punished by confinement or fine exceeding the following:

    (a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine;

    (b) Except as provided in RCW 9.94A.120(4)(d) and (21) for a class B felony, by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by both such confinement and fine;

    (c) For a class C felony, by confinement in a state correctional institution for five years, or by a fine in an amount fixed by the court of ten thousand dollars, or by both such confinement and fine.

    (2) Gross Misdemeanor.  Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine.

    (3) Misdemeanor.  Every person convicted of a misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, or by both such imprisonment and fine.

    (4) This section applies to only those crimes committed on or after July 1, 1984.

    Sec. 10.  RCW 43.19.534 and 1986 c 94 s 2 are each amended to read as follows:

    State agencies, the legislature, and departments shall purchase for their use all ((articles or products)) goods and services required by the legislature, agencies, or departments ((which)) that are produced or provided in whole or in part from class II inmate work programs operated by the department of corrections through state contract.  These ((articles and products)) goods and services shall not be purchased from any other source unless, upon application by the department or agency:  (1) The department of general administration finds that the articles or products do not meet the reasonable requirements of the agency or department, (2) are not of equal or better quality, or (3) the price of the product or service is higher than that produced by the private sector.  However, the criteria contained in (1), (2), and (3) of this section for purchasing goods and services from sources other than correctional industries do not apply to goods and services produced by correctional industries that primarily replace goods manufactured or services obtained from outside the state.  The department of corrections and department of general administration shall adopt administrative rules that implement this section.

NEW SECTION. Sec. 11.  A new section is added to chapter 72.09 RCW to read as follows:

    (1) The secretary shall increase inmate participation in class I and class II correctional industries work programs incrementally until a combined total of fifteen percent of all eligible physically and mentally able inmates are employed in class I and class II programs by December 30, 1998, and thirty percent by December 30, 2001.  "Eligible physically and mentally able inmates" includes all inmates in department facilities except inmates determined to be incapable of working in correctional industries work programs due to one of the following reasons only:

    (a) The inmate has a chronic mental deficiency or is mentally retarded and participation in work programs is impossible;

    (b) The inmate has a physical disability or illness making participation in work programs impossible;

    (c) The inmate is housed in an intensive management unit.

    (2) The department shall deduct at least fifty percent from the gross wages of each inmate working in correctional industries.  This amount shall be first used to pay any court-ordered legal financial obligations the defendant is required to pay.  Upon full payment of legal financial obligations, the deduction shall be deposited into a department personal inmate savings account until the account reaches at least two hundred fifty dollars.  Thereafter, all inmates working in class I, class II, class III, and class IV correctional industries programs shall pay fifty percent of their gross wages earned, up to six dollars per hour, toward the cost of incarceration so long as the inmate has retained at least two hundred fifty dollars in a department personal inmate savings account.

    (3) The department shall explore other methods of recovering a portion of the cost of the inmate's incarceration and for encouraging participation in work programs, including development of incentive programs that offer inmates benefits and amenities paid for only from wages earned while working in a correctional industries work program.

    (4) The department shall develop the necessary administrative structure to recover inmates' wages and keep records of the amount inmates pay for the costs of incarceration and amenities.  All funds gained from this section shall be deposited in a dedicated fund with the department and shall be used only for the purpose of enhancing and maintaining the correctional industries program until December 31, 2000, and thereafter all funds shall be deposited in the general fund.

    (5) The expansion of inmate employment in class I and class II correctional industries shall be limited to the expanded use of existing correctional industry facilities and any new facilities funded in the 1993-95 budget, and any expansions funded from the recovery of inmate wages described in subsection (4) of this section.  The department shall maximize the use of existing facilities to the fullest possible extent, including the addition of second and third shifts of workers where possible.

    Sec. 12.  RCW 72.09.070 and 1989 c 185 s 4 are each amended to read as follows:

    (1) There is created a correctional industries board of directors which shall have the composition provided in RCW 72.09.080.

    (2) Consistent with general department of corrections policies and procedures pertaining to the general administration of correctional facilities, the board shall establish and implement policy for correctional industries programs designed to:

    (a) Offer inmates meaningful employment, work experience, and training in vocations ((which may provide)) that are specifically designed to reduce recidivism and thereby enhance public safety by providing opportunities for legitimate means of livelihood upon their release from custody;

    (b) Provide industries which will reduce the tax burden of corrections and save taxpayers money through production of goods and services for sale and use;

    (c) Operate correctional work programs in an effective and efficient manner which are as similar as possible to those provided by the private sector;

    (d) Encourage the development of and provide for selection of, contracting for, and supervision of work programs with participating private enterprise firms;

    (e) Develop and design correctional industries work programs;

    (f) Invest available funds in correctional industries enterprises and meaningful work programs that minimize the impact on in-state jobs and businesses.

    (3) The board of directors shall at least annually review the work performance of the director of correctional industries division with the secretary.

    (4) The director of correctional industries division shall review and evaluate the productivity, funding, and appropriateness of all correctional work programs and report on their effectiveness to the board and to the secretary.

    (5) The board of directors shall have the authority to identify and establish trade advisory or apprenticeship committees to advise them on correctional industries work programs.  The secretary shall appoint the members of the committees.

    Where a labor management trade advisory and apprenticeship committee has already been established by the department pursuant to RCW 72.62.050 the existing committee shall also advise the board of directors.

    Sec. 13.  RCW 72.09.080 and 1989 c 185 s 5 are each amended to read as follows:

    (1) The correctional industries board of directors shall consist of nine voting members, appointed by the governor ((upon recommendation by the secretary)).  Each member shall serve a three-year staggered term.  Initially, the governor shall appoint three members to one-year terms, three members to two-year terms, and three members to three-year terms.  The speaker of the house of representatives and the president of the senate shall each appoint one member from each of the two largest caucuses in their respective houses.  The legislators so appointed shall be nonvoting members and shall serve two-year terms, or until they cease to be members of the house from which they were appointed, whichever occurs first.  The nine members appointed by the governor shall include three representatives from ((both)) labor ((and industry)), three representatives from business representing cross-sections of industries and all sizes of employers, and three members from the general public.

    (2) The board of directors shall elect a chair and such other officers as it deems appropriate from among the voting members.

    (3) The voting members of the board of directors shall serve with compensation pursuant to RCW 43.03.240 and shall be reimbursed by the department for travel expenses and per diem under RCW 43.03.050 and 43.03.060, as now or hereafter amended.  Legislative members shall be reimbursed under RCW 44.04.120, as now or hereafter amended.

    (4) The secretary shall provide such staff services, facilities, and equipment as the board shall require to carry out its duties.

    Sec. 14.  RCW 72.09.110 and 1991 c 133 s 1 are each amended to read as follows:

    All inmates working in prison industries shall participate in the cost of corrections, including costs to develop and implement correctional industries programs((.  The secretary shall develop a formula which can be used to determine the extent to which the wages of these inmates will be deducted for this purpose.  The amount so deducted shall be placed in the general fund and shall be a reasonable amount which will not unduly discourage the incentive to work)), by means of deductions from their gross wages.  The secretary may direct the state treasurer to deposit a portion of these moneys in the crime victims compensation account.  ((Except)) The secretary shall direct that all moneys received by an inmate((,)) for testifying in any judicial proceeding((, go)) shall be deposited into the crime victims compensation account.

    When the secretary finds it appropriate and not unduly destructive of the work incentive, the secretary ((shall)) may also provide deductions for ((restitution,)) savings((,)) and family support.

    Sec. 15.  RCW 72.60.160 and 1981 c 136 s 103 are each amended to read as follows:

    All articles, materials, services, and supplies ((herein)) authorized by this chapter to be produced or manufactured in correctional institutions ((may)) shall be purchased from the institution producing or manufacturing the same by any state agency ((or political subdivision of the state)) through state contract as set forth in RCW 43.19.534, and the secretary shall require those institutions under his direction to give preference to the purchasing of their needs of such articles as are so produced.

NEW SECTION. Sec. 16.  By January 1, 1994, the secretary of corrections shall submit a report to the chief clerk of the house of representatives and secretary of the senate containing an identification and description of any impediments which the secretary believes might prevent the department from achieving compliance with the inmate work participation percentages specified in section 11 of this act.  The secretary also shall include, in the report, alternative ways to remove any identified impediments.  The chief clerk and secretary shall distribute the report to the appropriate standing committees.

NEW SECTION. Sec. 17.  The following acts or parts of acts are each repealed:

(1) RCW 72.09.102 and 1986 c 94 s 1; and

(2) RCW 72.60.190 and 1981 c 136 s 104, 1979 ex.s. c 160 s 4, & 1959 c 28 s 72.60.190.

NEW SECTION. Sec. 18.  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."

2SSB 5451 - S AMD

By Senators Hargrove, A. Smith and Rinehart

                                                   ADOPTED 4/14/93

    In line 1 of the title, after "felonies;" strike the remainder of the title and insert "amending RCW 9.94A.390, 9.95.0011, 9.95.210, 9.96.050, 9A.20.021, 43.19.534, 72.09.070, 72.09.080, 72.09.110, and 72.60.160; reenacting and amending RCW 9.94A.030, 9.94A.120, and 9.94A.440; adding new a section to chapter 72.09 RCW; creating new sections; repealing RCW 72.09.102 and 72.60.190; and prescribing penalties."

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