Z-0969.3 _______________________________________________
HOUSE BILL 2374
_______________________________________________
State of Washington 53rd Legislature 1994 Regular Session
By Representatives R. Meyers, Ballasiotes, Wineberry, Johanson, Campbell, Basich, Quall, Jones, King and H. Myers; by request of Sentencing Guidelines Commission
Read first time 01/14/94. Referred to Committee on Corrections.
AN ACT Relating to punishment options for offenders convicted of nonviolent crimes with a sentence of twelve months or less; amending RCW 9.94A.200; reenacting and amending RCW 9.94A.030, 9.94A.120, and 9.94A.380; adding a new section to chapter 9.94A RCW; adding a new section to chapter 2.56 RCW; creating new sections; prescribing penalties; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. (1) It is the intent of the legislature to increase the effectiveness of punishment, improve public safety, deter future criminal conduct, and enhance the capacity of offenders to acquire appropriate social and work skills, by maximizing the ability of the judiciary to exercise discretion in imposing punishment options for nonviolent offenders who are not sex offenders with a sentence of twelve months or less.
(2) The legislature finds that confinement is often ineffective punishment for nonviolent offenders, and therefore encourages the use of nonincarcerative punishment options. It is the intent of the legislature that these punishment options be used in lieu of, not in addition to confinement that might be otherwise imposed. It is also the intent of the legislature that the imposition of punishment options not be based on the gender or ethnicity of the offender.
Sec. 2. RCW 9.94A.030 and 1994 c 1 s 3 (Initiative Measure No. 593), 1993 c 338 s 2, 1993 c 251 s 4, and 1993 c 164 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) "Approved adult education" means a formal program of adult education that has state certification.
(2) "Approved vocational-technical training" means coursework and/or on-the-job training in a vocational-technical training program certified by the state.
(3) "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))) (4)
"Commission" means the sentencing guidelines commission.
(((3))) (5)
"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))) (6)
"Community custody" means that portion of an inmate's sentence of
confinement in lieu of earned early release time served in the community
subject to controls placed on the inmate's movement and activities by the
department of corrections.
(((5))) (7)
"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))) (8)
"Community rehabilitation center" means a residential facility for
offenders.
(9) "Community service" means compulsory service, without compensation, performed for the benefit of the community by the offender.
(((7))) (10)
"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))) (11)
"Confinement" means total or partial confinement as defined in this
section.
(((9))) (12)
"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))) (13)
"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. Upon conviction for vehicular
assault while under the influence of intoxicating liquor or any drug, RCW
46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense of an
emergency response to the incident resulting in the conviction, subject to the
provisions in RCW 38.52.430.
(((11))) (14)
"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))) (15)(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))) (9)(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))) (16)
"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.
(17) "Day reporting" means a program of enhanced supervision designed to monitor the defendant's daily activities and compliance with sentence conditions, and in which the defendant is required to report daily to a specific location designated by the department or the sentencing judge.
(18) "Department" means the department of corrections.
(((14))) (19)
"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))) (20)
"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))) (21)
"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))) (22)
"Drug or alcohol monitoring" means the obligation to remain free of
any nonprescribed controlled substance or any alcoholic beverage and to submit
to periodic testing to monitor that status such as drug monitoring under a
treatment alternatives to street crime (TASC) or comparable program.
(23) "Electronic community activity monitoring" means that the offender's location throughout the day is monitored through electronic means.
(24) "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))) (25)
"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))) (26)
"Fines" means the requirement that the offender pay a specific sum of
money over a specific period of time to the court.
(((20))) (27)(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 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))) (28)
"Home detention" means a program of partial confinement available to
offenders wherein the offender is confined in a private residence subject to
electronic surveillance.
(29) "Inpatient treatment" means a treatment program certified by the state that requires the offender to be in residence at the treatment facility.
(30) "Intensive supervision" means a supervision program implemented by the department that involves closer monitoring of the defendant's compliance with sentence conditions and more frequent contacts with the community corrections officer than would occur under standard community supervision.
(31) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended:
(a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;
(b) Assault in the second degree;
(c) Assault of a child in the second degree;
(d) Child molestation in the second degree;
(e) Controlled substance homicide;
(f) Extortion in the first degree;
(g) Incest when committed against a child under age fourteen;
(h) Indecent liberties;
(i) Kidnapping in the second degree;
(j) Leading organized crime;
(k) Manslaughter in the first degree;
(l) Manslaughter in the second degree;
(m) Promoting prostitution in the first degree;
(n) Rape in the third degree;
(o) Robbery in the second degree;
(p) Sexual exploitation;
(q) Vehicular assault;
(r) 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;
(s) Any other class B felony offense with a finding of sexual motivation, as "sexual motivation" is defined under this section;
(t) Any other felony with a deadly weapon verdict under RCW 9.94A.125;
(u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection.
(((22))) (32)
"Nonviolent offense" means an offense which is not a violent offense.
(((23))) (33)
"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.
(((24))) (34)
"Outpatient treatment" means a treatment program certified by the
state or recommended by the department that does not require that the offender
be in residence at the treatment facility.
(35) "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.
(((25))) (36)
"Persistent offender" is an offender who:
(a) Has been convicted in this state of any felony considered a most serious offense; and
(b) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted.
(((26))) (37)
"Postrelease supervision" is that portion of an offender's community
placement that is not community custody.
(((27))) (38)
"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.
(((28))) (39)
"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.
(((29))) (40)
"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.
(((30))) (41)
"Sentence range" means the sentencing court's discretionary range in
imposing a nonappealable sentence.
(((31))) (42)
"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.
(((32))) (43)
"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.
(((33))) (44)
"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.
(((34))) (45)
"Transition training" means written and verbal instructions and
assistance provided by the department to the offender during the two weeks
prior to the offender's successful completion of the work ethic camp program.
The transition training shall include instructions in the offender's
requirements and obligations during the offender's period of community custody.
(((35))) (46)
"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.
(((36))) (47)
"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.
(((37))) (48)
"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 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 or the state are eligible to participate on
a work crew. Offenders sentenced for a sex offense as defined in subsection (((31)))
(42) of this section are not eligible for the work crew program.
(((38))) (49)
"Work ethic camp" means an alternative incarceration program designed
to reduce recidivism and lower the cost of corrections by requiring offenders
to complete a comprehensive array of real-world job and vocational experiences,
character-building work ethics training, life management skills development,
substance abuse rehabilitation, counseling, literacy training, and basic adult
education.
(((39))) (50)
"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.
(((40) "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.))
NEW SECTION. Sec. 3. A new section is added to chapter 9.94A RCW to read as follows:
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 as defined in RCW 9A.36.140, 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 section and is monitored for drug use by treatment alternatives to street crime (TASC) or a comparable court or agency-referred program.
(1) Home detention may be imposed for offenders convicted of burglary in the second degree as defined in RCW 9A.52.030 or residential burglary as defined in RCW 9A.52.025 conditioned upon the offender: (a) Successfully completing twenty-one days in a work release program, (b) 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, (c) 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, (d) having no prior charges of escape, and (e) fulfilling the other conditions of the home detention program.
(2) Participation in a home detention program is conditioned upon: (a) 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, (b) abiding by the rules of the home detention program, and (c) 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. 4. RCW 9.94A.120 and 1994 c 1 s 2 (Initiative Measure No. 593) and 1993 c 31 s 3 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) 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 persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death, notwithstanding the maximum sentence under any other law. An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years. An offender convicted of the crime of assault in the first degree 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. 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. The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section. In addition, all offenders subject to the provisions of this subsection shall not be eligible for community custody, earned early release time, furlough, home detention, partial confinement, work crew, work release, or any other form of early release as defined under RCW 9.94A.150 (1), (2), (3), (5), (7), or (8), or any other form of authorized leave of absence from the correctional facility while not in the direct custody of a corrections officer or officers during such minimum terms of total confinement except in the case of an offender in need of emergency medical treatment or for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree.
(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 shall be imposed in accordance with subsection (6) of this section.
The sentence may also include up to ((two years)) one year of
community supervision, which, in addition to crime-related prohibitions, may
include ((requirements)) conditions that the offender ((perform
any one or more of the following)):
(a) ((Devote time to
a specific employment or occupation;
(b) Undergo
available outpatient treatment for up to two years, or inpatient treatment not
to exceed the standard range of confinement for that offense;
(c) Pursue a
prescribed, secular course of study or vocational training;
(d))) Refrain from committing new offenses;
(b) 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))) (c)
Report as directed to the court and a community corrections officer; or
(((f))) (d)
Pay all court-ordered legal financial obligations as provided in RCW ((9.94A.030
and/or perform community service work)) 9.94A.145.
(6)(a) When sentencing a first-time offender, or an offender who is not a violent offender or a sex offender and whose sentence is twelve months or less, the court shall first determine an appropriate sentence within the standard range. It is appropriate that such sentence be served primarily or exclusively under one or more of the punishment options set forth in (c) of this subsection. If the court determines that a period of total confinement is appropriate in order to adequately punish the offender and to serve the best interest of society, the court shall order the confinement for the minimum time necessary to carry out the goals of this chapter.
(b) For the purposes of this subsection, if a first-time offender is being sentenced under subsection (5) of this section, zero to ninety days shall be considered to be the standard range. Punishment options that are imposed under this section may be used in any combination and may also be combined with total confinement. Conversions of total confinement to punishment options shall be clearly indicated on the judgment and sentence.
(c) Punishment options available to a court include:
(i) Approved adult education at the rate of five hours of education for one day of total confinement;
(ii) Approved vocational-technical training at the rate of five hours of training for one day of total confinement;
(iii) Community rehabilitation center at the rate of one day of residence for one day of total confinement;
(iv) Community service at the rate of eight hours of community service for one day of total confinement;
(v) Day fines at the rate one day of day fine for one day of total confinement;
(vi) Day reporting at the rate of two days of day reporting for one day of total confinement;
(vii) Drug or alcohol monitoring at the rate of five days of monitoring for one day of total confinement;
(viii) Electronic community activity monitoring at the rate of one day of monitoring for one day of total confinement;
(ix) Home detention at the rate of one day of home detention for one day of total confinement;
(x) Inpatient treatment at the rate of one day of treatment for one day of total confinement;
(xi) Intensive supervision at the rate of four days of supervision for one day of total confinement;
(xii) Outpatient treatment at the rate of two days of treatment for one day of total confinement;
(xiii) Partial confinement at the rate of one day of partial confinement for one day of total confinement;
(xiv) Work crew at the rate of seven hours of work crew for one day of total confinement; and
(xv) Work release at the rate of one day of work release for one day of total confinement.
(d) An offender may also be placed on a term of community supervision not to exceed one year. At any time after the successful completion of punishment options and other conditions imposed, the offender or the department may petition the court to terminate community supervision.
(e) The department shall determine the rules for calculating the value of a day fine based on the offender's income and reasonable obligations which the offender has for the support of the offender and any dependents. These rules shall be developed in consultation with the administrator for the courts, the office of financial management, and the commission.
(7) 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 shall consider conversion of any total confinement to punishment options
in accordance with subsection (6) of this section. At any time after the
successful completion of punishment options and other conditions imposed, the
offender or the department may petition the court to terminate community
supervision. 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))) (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 or her community supervision term in confinement in the custody of the department of corrections.
Nothing in (((c) of))
this subsection (8)(b) shall confer eligibility for such programs for
offenders convicted and sentenced for a sex offense committed prior to July 1,
1987. This subsection (((c))) (8)(b) does not apply to any crime
committed after July 1, 1990.
(((d))) (c)
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. The department may require offenders to
pay for special services rendered on or after July 25, 1993, including
electronic monitoring, day reporting, and telephone reporting, dependent upon
the offender's ability to pay. The department may pay for these services for
offenders who are not able to pay.
(((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.
Sec. 5. RCW 9.94A.200 and 1989 c 252 s 7 are each amended to read as follows:
(1) If an offender violates any condition or requirement of a sentence, the court may modify its order of judgment and sentence and impose further punishment in accordance with this section.
(2) If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply:
(a) The court, upon the motion of the state, or upon its own motion, shall require the offender to show cause why the offender should not be punished for the noncompliance. The court may issue a summons or a warrant of arrest for the offender's appearance;
(b) The state has the
burden of showing noncompliance by a preponderance of the evidence. If the
court finds that the violation has occurred, it may order the offender to be
confined for a period not to exceed sixty days for each violation, and may convert
any or all of this confinement order to the punishment options listed in RCW
9.94A.120(6)(c). In addition, the court may (i) convert any punishment
options ordered under RCW 9.94A.120(6) to any combination of other punishment
options or total confinement, (ii) convert a term of partial confinement to
total confinement, (((ii))) (iii) convert community service
obligation to total or partial confinement, or (((iii))) (iv)
convert monetary obligations, except restitution and the crime victim penalty
assessment, to community service hours at the rate of the state minimum wage as
established in RCW 49.46.020 for each hour of community service. Any time
served in confinement awaiting a hearing on noncompliance shall be credited
against any confinement order by the court; and
(c) If the court finds that the violation was not willful, the court may modify its previous order regarding payment of legal financial obligations and regarding community service obligations.
(3) Nothing in this section prohibits the filing of escape charges if appropriate.
Sec. 6. RCW 9.94A.380 and 1988 c 157 s 4 and 1988 c 155 s 3 are each reenacted and amended to read as follows:
Alternatives to total
confinement are available for offenders with sentences of one year or less.
These alternatives include the following sentence conditions that the court may
order as substitutes for total confinement: (1) One day of partial confinement
may be substituted for one day of total confinement; (2) in addition, for
offenders convicted of nonviolent offenses only, eight hours of community
service may be substituted for one day of total confinement((, with a
maximum conversion limit of two hundred forty hours or thirty days)).
Community service hours must be completed within the period of community
supervision or a time period specified by the court, which shall not exceed
twenty-four months, pursuant to a schedule determined by the department.
For sentences of nonviolent offenders for one year or less, the court shall consider and give priority to available alternatives to total confinement and shall state its reasons in writing on the judgment and sentence form if the alternatives are not used.
NEW SECTION. Sec. 7. A new section is added to chapter 2.56 RCW to read as follows:
The administrator for the courts shall provide as part of its education and training programs for judges a curriculum that emphasizes the availability, effectiveness, and role nonincarcerative punishment options have in a sound correctional policy for the state. The curriculum shall include information from other states on the advances and innovations other courts have determined to be effective as punishment, as well as encouraging rehabilitation and discouraging repeat criminal offenses. The curriculum shall include awareness training on implementing punishment options to promote impartiality and equity and avoid racial, ethnic, or sexual discrimination.
NEW SECTION. Sec. 8. The sentencing guidelines commission shall evaluate the impact of implementing the punishment options provided for in RCW 9.94A.120(6). The commission shall submit preliminary findings to the legislature by December 1, 1995, and shall submit the final report to the legislature by December 1, 1996. The report shall describe the changes in sentencing practices related to the use of punishment options for nonviolent offenders and include the impact of sentencing alternatives on county jail populations, the savings in state and local resources, and the impact on recidivism rates.
NEW SECTION. Sec. 9. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.
--- END ---