AN
ACT Relating to criminal sentencing; amending RCW 9.94A.140 and 9.94A.145;
reenacting and amending RCW 9.94A.142 and 9.94A.390; and prescribing penalties.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
9.94A.140 and 1995 c 231 s 1 are each amended to read as follows:
(1)
If restitution is ordered, the court shall determine the amount of restitution
due at the sentencing hearing or within one hundred eighty days. The court may
continue the hearing beyond the one hundred eighty days for good cause. The
court shall then set a minimum monthly payment that the offender is required to
make towards the restitution that is ordered. The court should take into
consideration the total amount of the restitution owed, the offender's present,
past, and future ability to pay, as well as any assets that the offender may
have. During the period of supervision, the community corrections officer may
examine the offender to determine if there has been a change in circumstances
that warrants an amendment of the monthly payment schedule. The community
corrections officer may recommend a change to the schedule of payment and shall
inform the court of the recommended change and the reasons for the change. The
sentencing court may then reset the monthly minimum payments based on the report
from the community corrections officer of the change in circumstances. Except
as provided in subsection (3) of this section, restitution ordered by a
court pursuant to a criminal conviction shall be based on easily ascertainable
damages for injury to or loss of property, actual expenses incurred for
treatment for injury to persons, and lost wages resulting from injury.
Restitution shall not include reimbursement for damages for mental anguish,
pain and suffering, or other intangible losses, but may include the costs of
counseling reasonably related to the offense. The amount of restitution shall
not exceed double the amount of the offender's gain or the victim's loss from
the commission of the crime. For the purposes of this section, the offender shall
remain under the court's jurisdiction for a maximum term of ten years following
the offender's release from total confinement or ten years subsequent to the
entry of the judgment and sentence, whichever period is longer. The portion of
the sentence concerning restitution may be modified as to amount, terms and
conditions during the ten-year period, regardless of the expiration of the
offender's term of community supervision and regardless of the statutory
maximum for the crime. The court may not reduce the total amount of
restitution ordered because the offender may lack the ability to pay the total
amount. The offender's compliance with the restitution shall be supervised by
the department of corrections.
(2)
Restitution may be ordered whenever the offender is convicted of an offense
which results in injury to any person or damage to or loss of property or as
provided in subsection (3) of this section. In addition, restitution may
be ordered to pay for an injury, loss, or damage if 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)
Restitution for the crime of rape of a child in the first, second, or third
degree, in which the victim becomes pregnant, shall include: (a) All of the
victim's medical expenses that are associated with the rape and resulting
pregnancy; and (b) child support for any child born as a result of the rape if
child support is ordered pursuant to a civil superior court or administrative
order for support for that child. The clerk must forward any restitution
payments made on behalf of the victim's child to the Washington state child
support registry under chapter 26.23 RCW. Identifying information about the
victim and child shall not be included in the order. The defendant shall
receive a credit against any obligation owing under the administrative or
superior court order for support of the victim's child. For the purposes of
this subsection, the offender shall remain under the court's jurisdiction until
the defendant has satisfied support obligations under the superior court or
administrative order but not longer than a maximum term of twenty-five years
following the offender's release from total confinement or twenty-five years
subsequent to the entry of the judgment and sentence, whichever period is
longer. The court may not reduce the total amount of restitution ordered
because the offender may lack the ability to pay the total amount. The
department shall supervise the offender's compliance with the restitution
ordered under this subsection.
(4)
In addition to any sentence that may be imposed, a defendant who has been found
guilty of an offense involving fraud or other deceptive practice or an
organization which has been found guilty of any such offense may be ordered by
the sentencing court to give notice of the conviction to the class of persons
or to the sector of the public affected by the conviction or financially
interested in the subject matter of the offense by mail, by advertising in
designated areas or through designated media, or by other appropriate means.
(((4)))
(5) This section does not limit civil remedies or defenses available to
the victim or defendant including support enforcement remedies for support
ordered under subsection (3) of this section for a child born as a result of a
rape of a child victim. The court shall identify in the judgment and sentence
the victim or victims entitled to restitution and what amount is due each
victim. The state or victim may enforce the court-ordered restitution in the
same manner as a judgment in a civil action. Restitution collected through
civil enforcement must be paid through the registry of the court and must be
distributed proportionately according to each victim's loss when there is more
than one victim.
Sec.
2. RCW
9.94A.142 and 1995 c 231 s 2 and 1995 c 33 s 4 are each reenacted and amended
to read as follows:
(1)
When restitution is ordered, the court shall determine the amount of
restitution due at the sentencing hearing or within one hundred eighty days
except as provided in subsection (((3))) (4) of this section.
The court may continue the hearing beyond the one hundred eighty days for good
cause. The court shall then set a minimum monthly payment that the offender is
required to make towards the restitution that is ordered. The court should
take into consideration the total amount of the restitution owed, the
offender's present, past, and future ability to pay, as well as any assets that
the offender may have. During the period of supervision, the community
corrections officer may examine the offender to determine if there has been a
change in circumstances that warrants an amendment of the monthly payment
schedule. The community corrections officer may recommend a change to the
schedule of payment and shall inform the court of the recommended change and
the reasons for the change. The sentencing court may then reset the monthly
minimum payments based on the report from the community corrections officer of
the change in circumstances. Except as provided in subsection (3) of this
section, restitution ordered by a court pursuant to a criminal conviction
shall be based on easily ascertainable damages for injury to or loss of
property, actual expenses incurred for treatment for injury to persons, and
lost wages resulting from injury. Restitution shall not include reimbursement
for damages for mental anguish, pain and suffering, or other intangible losses,
but may include the costs of counseling reasonably related to the offense. The
amount of restitution shall not exceed double the amount of the offender's gain
or the victim's loss from the commission of the crime. For the purposes of
this section, the offender shall remain under the court's jurisdiction for a
maximum term of ten years following the offender's release from total
confinement or ten years subsequent to the entry of the judgment and sentence,
whichever period is longer. The portion of the sentence concerning restitution
may be modified as to amount, terms and conditions during the ten-year period,
regardless of the expiration of the offender's term of community supervision
and regardless of the statutory maximum for the crime. The court may not
reduce the total amount of restitution ordered because the offender may lack
the ability to pay the total amount. The offender's compliance with the
restitution shall be supervised by the department of corrections.
(2)
Restitution shall be ordered whenever the offender is convicted of an offense
which results in injury to any person or damage to or loss of property or as
provided in subsection (3) of this section unless extraordinary
circumstances exist which make restitution inappropriate in the court's
judgment and the court sets forth such circumstances in the record. In
addition, restitution shall be ordered to pay for an injury, loss, or damage if
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)
Restitution for the crime of rape of a child in the first, second, or third
degree, in which the victim becomes pregnant, shall include: (a) All of the
victim's medical expenses that are associated with the rape and resulting
pregnancy; and (b) child support for any child born as a result of the rape if
child support is ordered pursuant to a civil superior court or administrative
order for support for that child. The clerk must forward any restitution
payments made on behalf of the victim's child to the Washington state child
support registry under chapter 26.23 RCW. Identifying information about the
victim and child shall not be included in the order. The defendant shall
receive a credit against any obligation owing under the administrative or
superior court order for support of the victim's child. For the purposes of
this subsection, the offender shall remain under the court's jurisdiction until
the defendant has satisfied support obligations under the superior court or
administrative order but not longer than a maximum term of twenty-five years
following the offender's release from total confinement or twenty-five years
subsequent to the entry of the judgment and sentence, whichever period is
longer. The court may not reduce the total amount of restitution ordered
because the offender may lack the ability to pay the total amount. The
department shall supervise the offender's compliance with the restitution
ordered under this subsection.
(4)
Regardless of the provisions of subsections (1) ((and)), (2),
and (3) of this section, the court shall order restitution in all cases
where the victim is entitled to benefits under the crime victims' compensation
act, chapter 7.68 RCW. If the court does not order restitution and the victim
of the crime has been determined to be entitled to benefits under the crime
victims' compensation act, the department of labor and industries, as
administrator of the crime victims' compensation program, may petition the
court within one year of entry of the judgment and sentence for entry of a
restitution order. Upon receipt of a petition from the department of labor and
industries, the court shall hold a restitution hearing and shall enter a
restitution order.
(((4)))
(5) In addition to any sentence that may be imposed, a defendant who has
been found guilty of an offense involving fraud or other deceptive practice or
an organization which has been found guilty of any such offense may be ordered
by the sentencing court to give notice of the conviction to the class of
persons or to the sector of the public affected by the conviction or
financially interested in the subject matter of the offense by mail, by
advertising in designated areas or through designated media, or by other
appropriate means.
(((5)))
(6) This section does not limit civil remedies or defenses available to
the victim, survivors of the victim, or defendant including support
enforcement remedies for support ordered under subsection (3) of this section
for a child born as a result of a rape of a child victim. The court shall
identify in the judgment and sentence the victim or victims entitled to
restitution and what amount is due each victim. The state or victim may
enforce the court-ordered restitution in the same manner as a judgment in a
civil action. Restitution collected through civil enforcement must be paid
through the registry of the court and must be distributed proportionately
according to each victim's loss when there is more than one victim.
(((6)))
(7) This section shall apply to offenses committed after July 1, 1985.
Sec.
3. RCW
9.94A.145 and 1995 c 231 s 3 are each amended to read as follows:
(1)
Whenever a person is convicted of a felony, the court may order the payment of
a legal financial obligation as part of the sentence. The court must on either
the judgment and sentence or on a subsequent order to pay, designate the total
amount of a legal financial obligation and segregate this amount among the
separate assessments made for restitution, costs, fines, and other assessments
required by law. On the same order, the court is also to set a sum that the
offender is required to pay on a monthly basis towards satisfying the legal
financial obligation. If the court fails to set the offender monthly payment
amount, the department shall set the amount. Upon receipt of an offender's
monthly payment, after restitution is satisfied, the county clerk shall
distribute the payment proportionally among all other fines, costs, and
assessments imposed, unless otherwise ordered by the court.
(2)
If the court determines that the offender, at the time of sentencing, has the
means to pay for the cost of incarceration, the court may require the offender
to pay for the cost of incarceration at a rate of fifty dollars per day of
incarceration. Payment of other court-ordered financial obligations, including
all legal financial obligations and costs of supervision shall take precedence
over the payment of the cost of incarceration ordered by the court. All funds
recovered from offenders for the cost of incarceration in the county jail shall
be remitted to the county and the costs of incarceration in a prison shall be
remitted to the department of corrections.
(3)
The court may add to the judgment and sentence or subsequent order to pay a
statement that a notice of payroll deduction is to be immediately issued. If
the court chooses not to order the immediate issuance of a notice of payroll
deduction at sentencing, the court shall add to the judgment and sentence or
subsequent order to pay a statement that a notice of payroll deduction may be
issued or other income-withholding action may be taken, without further notice
to the offender if a monthly court-ordered legal financial obligation payment
is not paid when due, and an amount equal to or greater than the amount payable
for one month is owed.
If
a judgment and sentence or subsequent order to pay does not include the
statement that a notice of payroll deduction may be issued or other
income-withholding action may be taken if a monthly legal financial obligation
payment is past due, the department may serve a notice on the offender stating
such requirements and authorizations. Service shall be by personal service or
any form of mail requiring a return receipt.
(4)
All legal financial obligations that are ordered as a result of a conviction
for a felony, may also be enforced in the same manner as a judgment in a civil
action by the party or entity to whom the legal financial obligation is owed.
Restitution collected through civil enforcement must be paid through the
registry of the court and must be distributed proportionately according to each
victim's loss when there is more than one victim. The judgment and sentence
shall identify the party or entity to whom restitution is owed so that the
state, party, or entity may enforce the judgment. ((These)) If
restitution is ordered pursuant to RCW 9.94A.140(3) or 9.94A.142(3) to a victim
of rape of a child and the victim's child born from the rape, the Washington
state child support registry shall be identified as the party to whom payments
must be made. Restitution obligations arising from the rape of a child in the
first, second, or third degree that result in the pregnancy of the victim may
be enforced for the time periods provided under RCW 9.94A.140(3) and
9.94A.142(3). All other legal financial obligations may be enforced at any
time during the ten-year period following the offender's release from total
confinement or within ten years of entry of the judgment and sentence,
whichever period is longer. 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.
(5)
In order to assist the court in setting a monthly sum that the offender must
pay during the period of supervision, the offender is required to report to the
department for purposes of preparing a recommendation to the court. When
reporting, the offender is required, under oath, to truthfully and honestly
respond to all questions concerning present, past, and future earning
capabilities and the location and nature of all property or financial assets.
The offender is further required to bring any and all documents as requested by
the department.
(6)
After completing the investigation, the department shall make a report to the
court on the amount of the monthly payment that the offender should be required
to make towards a satisfied legal financial obligation.
(7)
During the period of supervision, the department may make a recommendation to
the court that the offender's monthly payment schedule be modified so as to
reflect a change in financial circumstances. If the department sets the
monthly payment amount, the department may modify the monthly payment amount
without the matter being returned to the court. Also, during the period of supervision,
the offender may be required at the request of the department to report to the
department for the purposes of reviewing the appropriateness of the collection
schedule for the legal financial obligation. During this reporting, the
offender is required under oath to truthfully and honestly respond to all
questions concerning earning capabilities and the location and nature of all
property or financial assets. Also, the offender is required to bring any and
all documents as requested by the department in order to prepare the collection
schedule.
(8)
After the judgment and sentence or payment order is entered, the department
shall for any period of supervision be authorized to collect the legal
financial obligation from the offender. Any amount collected by the department
shall be remitted daily to the county clerk for the purposes of disbursements.
The department is authorized to accept credit cards as payment for a legal
financial obligation, and any costs incurred related to accepting credit card
payments shall be the responsibility of the offender.
(9)
The department or any obligee of the legal financial obligation may seek a
mandatory wage assignment for the purposes of obtaining satisfaction for the
legal financial obligation pursuant to RCW 9.94A.2001.
(10)
The requirement that the offender pay a monthly sum towards a legal financial
obligation constitutes a condition or requirement of a sentence and the
offender is subject to the penalties as provided in RCW 9.94A.200 for
noncompliance.
(11)
The county clerk shall provide the department with individualized monthly
billings for each offender with an unsatisfied legal financial obligation and
shall provide the department with notice of payments by such offenders no less
frequently than weekly.
Sec.
4. RCW
9.94A.390 and 1996 c 248 s 2 and 1996 c 121 s 1 are each reenacted and 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 violent offense, and the defendant knew that the
victim of the current offense was pregnant.
(d)
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; or
(iv)
The defendant used his or her position of trust, confidence, or fiduciary
responsibility to facilitate the commission of the current offense.
(e)
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;
(ii)
The current offense involved an attempted or actual sale or transfer of
controlled substances in quantities substantially larger than for personal use;
(iii)
The current offense involved the manufacture of controlled substances for use
by other parties;
(iv)
The circumstances of the current offense reveal the offender to have occupied a
high position in the drug distribution hierarchy;
(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).
(f)
The current offense included a finding of sexual motivation pursuant to RCW
9.94A.127.
(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.
(h)
The current offense involved domestic violence, as defined in RCW 10.99.020 and
one or more of the following was present:
(i)
The offense was part of an ongoing pattern of psychological, physical, or
sexual abuse of the victim manifested by multiple incidents over a prolonged
period of time;
(ii)
The offense occurred within sight or sound of the victim's or the offender's
minor children under the age of eighteen years; or
(iii)
The offender's conduct during the commission of the current offense manifested
deliberate cruelty or intimidation of the victim.
(i)
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.
(j)
The defendant's prior unscored misdemeanor or prior unscored foreign criminal
history 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.
(k) The offense resulted in the pregnancy of a child victim of
rape.
