H-4548.1  _______________________________________________

                          HOUSE BILL 3124

          _______________________________________________

State of Washington      56th Legislature     2000 Regular Session

By Representatives H. Sommers, Huff, Kessler, Ballasiotes, O'Brien and Alexander

Read first time 02/07/2000.  Referred to Committee on Appropriations.

Revising sentencing for sexually violent predators.

    AN ACT Relating to sentencing of sexually violent predators; amending RCW 9.94A.060, 9.94A.190, 9.94A.370, 9.94A.390, 9.95.900, 9A.28.020, 9A.36.021, 9A.40.030, and 9A.44.100; reenacting and amending RCW 9.94A.030 and 9.94A.120; adding new sections to chapter 9.94A RCW; creating new sections; repealing RCW 9.95.0011; prescribing penalties; and declaring an emergency.

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

    Sec. 1.  RCW 9.94A.030 and 1999 c 352 s 8, 1999 c 197 s 1, and 1999 c 196 s 2 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) "Board" means the indeterminate sentence review board created under RCW 9.95.001.

(2) "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, either directly or through a collection agreement authorized by RCW 9.94A.145, 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))) (3) "Commission" means the sentencing guidelines commission.

    (((3))) (4) "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))) (5) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.120 (5), (6), (7), (8), (10), or (11), or RCW 9.94A.383, served in the community subject to controls placed on the offender's movement and activities by the department of corrections.  For offenders placed on community custody for crimes committed on or after July 1, 2000, the department shall assess the offender's risk of reoffense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety.

    (((5))) (6) "Community custody range" means the minimum and maximum period of community custody included as part of a sentence under RCW 9.94A.120(11), as established by the sentencing guidelines commission or the legislature under RCW 9.94A.040, for crimes committed on or after July 1, 2000.

    (((6))) (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 release.  Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

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

    (((8))) (9) "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 16.52.200(6) or 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).  Where the court finds that any offender has a chemical dependency that has contributed to his or her offense, the conditions of supervision may, subject to available resources, include treatment.  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.

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

    (((10))) (11) "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.

    (((11))) (12) "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.

    (((12))) (13) "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.  However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.

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

    (((14))) (15) "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.

    (((15))) (16) "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.

    (((16))) (17) "Department" means the department of corrections.

    (((17))) (18) "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 release" can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.

    (((18))) (19) "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.

    (((19))) (20) "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.

    (((20))) (21) "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.

    (((21))) (22) "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.

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

    (((23))) (24) "First-time offender" means any person who is convicted of a felony (a) not classified as a violent offense or a sex offense under this chapter, or (b) 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 flunitrazepam classified in Schedule IV, nor the manufacture, delivery, or possession with intent to deliver methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2), nor 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, 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.

    (((24))) (25) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.

    (((25))) (26) "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;

    (v)(i) A prior conviction for indecent liberties under RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;

    (ii) A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988, if:  (A) The crime was committed against a child under the age of fourteen; or (B) the relationship between the victim and perpetrator is included in the definition of indecent liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through July 27, 1997.

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

    (((27))) (28) "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 is under superior court jurisdiction under RCW 13.04.030 or 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.

    (((28))) (29) "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.

    (((29))) (30) "Persistent offender" is an offender who:

    (a)(i) Has been convicted in this state of any felony considered a most serious offense; and

    (ii) 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; or

    (b)(i) Has been convicted of:  (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree, with a finding of sexual motivation; or (C) an attempt to commit any crime listed in this subsection (((29))) (30)(b)(i); and

    (ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection.  A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection (((29)(b)(i))) only when the offender was sixteen years of age or older when the offender committed the offense.  A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) of this subsection (((29)(b)(i))) only when the offender was eighteen years of age or older when the offender committed the offense.

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

    (((31))) (32) "Predatory crime of sexual violence" means an offense listed in subsection (30)(b)(i) of this section, which the court finds, at a sentencing hearing, was committed against a stranger or an individual with whom a relationship was established or promoted for the purpose of victimization.

(33) "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.

    (((32))) (34) "Risk assessment" means the application of an objective instrument supported by research and adopted by the department for the purpose of assessing an offender's risk of reoffense, taking into consideration the nature of the harm done by the offender, place and circumstances of the offender related to risk, the offender's relationship to any victim, and any information provided to the department by victims.  The results of a risk assessment shall not be based on unconfirmed or unconfirmable allegations.

    (((33))) (35) "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.

    (((34))) (36) "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, manslaughter in the first 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.

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

    (((36))) (38) "Sex offense" means:

    (a) A felony that is a violation of chapter 9A.44 RCW, other than RCW 9A.44.130(((10))) (11), or RCW 9A.64.020 or 9.68A.090 or a felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

    (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 sex offense in (a) of this subsection;

    (c) A felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135; or

    (d) 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.

    (((37))) (39) "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.

    (((38))) (40) "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.

    (((39))) (41) "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.

    (((40))) (42) "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.

    (((41))) (43) "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, drive-by shooting, 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.

    (((42))) (44) "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, or sanctioned under RCW 9.94A.205, are eligible to participate on a work crew.  Offenders sentenced for a sex offense as defined in subsection (((36))) (38) of this section are not eligible for the work crew program.

    (((43))) (45) "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.

    (((44))) (46) "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.

    Sec. 2.  RCW 9.94A.120 and 1999 c 324 s 2, 1999 c 197 s 4, 1999 c 196 s 5, and 1999 c 147 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), (6), and (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 unless it is imposed on a sexually violent predator offender eligible to be sentenced under subsection (12) of this section.  An exceptional sentence imposed on an offender eligible for sentencing under subsection (12) of this section shall be to a minimum term set by the court and a maximum term equal to the statutory maximum sentence for the offense of conviction.

    (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 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))) (6), (8), or (9), 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:  (a) In the case of an offender in need of emergency medical treatment; (b) 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; or (c) for an extraordinary medical placement when authorized under RCW 9.94A.150(4).

    (5)(a) 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 a term of community supervision or community custody as specified in (b) of this subsection, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

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

    (ii) Undergo available outpatient treatment for up to the period specified in (b) of this subsection, or inpatient treatment not to exceed the standard range of confinement for that offense;

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

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

    (v) Report as directed to a community corrections officer; or

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

    (b) The terms and statuses applicable to sentences under (a) of this subsection are:

    (i) For sentences imposed on or after July 25, 1999, for crimes committed before July 1, 2000, up to one year of community supervision.  If treatment is ordered, the period of community supervision may include up to the period of treatment, but shall not exceed two years; and

    (ii) For crimes committed on or after July 1, 2000, up to one year of community custody unless treatment is ordered, in which case the period of community custody may include up to the period of treatment, but shall not exceed two years.  Any term of community custody imposed under this subsection (5) is subject to conditions and sanctions as authorized in this subsection (5) and in subsection (11)(b) and (c) of this section.

    (c) The department shall discharge from community supervision any offender sentenced under this subsection (5) before July 25, 1999, who has served at least one year of community supervision and has completed any treatment ordered by the court.

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

    (i) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.310 (3) or (4);

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

    (iii) For a violation of the uniform controlled substances act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; and

    (iv) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order.

    (b) If the standard range is greater than one year and 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.  During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender.  The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.

    The court shall also impose:

    (i) The remainder of the midpoint of the standard range as a term of community custody which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services;

    (ii) Crime-related prohibitions including a condition not to use illegal controlled substances; and

    (iii) A requirement to submit to urinalysis or other testing to monitor that status.

    The court may prohibit the offender from using alcohol or controlled substances and may require that the monitoring for controlled substances be conducted by the department or by a treatment alternatives to street crime program or a comparable court or agency-referred program.  The offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring.  In addition, the court shall impose three or more of the following conditions:

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

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

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

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

    (E) Perform community service work;

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

    (G) Such other conditions as the court may require such as affirmative conditions.

    (c) If the offender violates any of the sentence conditions in (b) of this subsection, a violation hearing shall be held by the department unless waived by the offender.  If the department finds that conditions have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence.

    (d) 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.

    (e) An offender who fails to complete the special drug offender sentencing alternative program or who is administratively terminated from the program shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing judge and shall be subject to all rules relating to earned early release time.  An offender who violates any conditions of supervision as defined by the department shall be sanctioned.  Sanctions may include, but are not limited to, reclassifying the offender to serve the unexpired term of his or her sentence as ordered by the sentencing judge.  If an offender is reclassified to serve the unexpired term of his or her sentence, the offender shall be subject to all rules relating to earned early release time.

    (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; until July 1, 2000, a term of community supervision not to exceed one year and on and after July 1, 2000, a term of community custody not to exceed one year, subject to conditions and sanctions as authorized in subsection (11)(b) and (c) of this section; 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.

    (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 sex 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:

(A) Then impose a sentence within the sentence range unless the offender is eligible to be sentenced under subsection (12) of this section; or

(B) If the offender is eligible to be sentenced under subsection (12) of this section, then impose a sentence to a maximum term equal to the statutory maximum sentence for the offense of conviction and a minimum term within the standard range for the offense of conviction.

    If ((this)) the sentence imposed under (a)(ii)(A) of this subsection is less than eleven years of confinement, the court may suspend the execution of the sentence ((and)).  If the sentence is imposed under (a)(ii)(B) of this subsection and is less than eleven years, the court may suspend both the minimum and the maximum terms.  If the sentence is imposed under either (a)(ii)(A) or (B) of this subsection, the court may impose the following conditions of suspension:

    (((A))) (I) The court shall place the defendant on community custody for the length of the suspended sentence or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department of corrections under subsection (((15))) (16) of this section;

    (((B))) (II) 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; and

    (((C))) (III) Sex offenders sentenced under this special sex offender sentencing alternative are not eligible to accrue any earned release time while serving a suspended sentence.

    (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 custody, and either (B) terminate treatment, or (C) extend treatment for up to the remaining period of community custody.

    (v) If a violation of conditions occurs during community custody, the department shall either impose sanctions as provided for in RCW 9.94A.205(2)(a) or refer the violation to the court and recommend revocation of the suspended sentence as provided for in (a)(vi) of this subsection.

    (vi) The court may revoke the suspended sentence at any time during the period of community custody 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 custody shall be credited to the offender if the suspended sentence is revoked.  If the sentence of an offender sentenced under subsection (12) of this section is revoked pursuant to this subsection, the offender shall thereafter be released only pursuant to subsection (12) of this section.

    (vii) Except as provided in (a)(viii) 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.

    (viii) A sex offender therapist who examines or treats a sex offender pursuant to this subsection (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 (8) and the rules adopted by the department of health.

    (ix) For purposes of this subsection (8), "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.

    (x) If the defendant was less than eighteen years of age when the charge was filed, the state shall pay for the cost of initial evaluation and treatment.

    (b) 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 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 (8)(b) does not apply to any crime committed after July 1, 1990.

    (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.

    (d) Within the funds available for this purpose, the department shall develop and monitor transition and relapse prevention strategies, including risk assessment and release plans, to reduce risk to the community after sex offenders' terms of confinement in the custody of the department.

    (9)(a)(i) 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 not sentenced under subsection (6) of this section, committed on or after July 1, 1988, but before July 25, 1999, 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 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.

    (ii) Except for persons sentenced under (b) of this subsection or subsection (10)(a) of this section, when a court sentences a person to a term of total confinement to the custody of the department of corrections for a violent offense, any crime against a person under RCW 9.94A.440(2), or any felony offense under chapter 69.50 or 69.52 RCW not sentenced under subsection (6) of this section, committed on or after July 25, 1999, but before July 1, 2000, 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 release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences the offender under this subsection (9)(a)(ii) 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 committed on or after July 1, 1990, but before June 6, 1996, or a serious violent offense, vehicular homicide, or vehicular assault, committed on or after July 1, 1990, but before July 1, 2000, 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 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 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 possess or consume controlled substances except pursuant to lawfully issued prescriptions;

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

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

    (vi) The offender shall submit to affirmative acts necessary to monitor compliance with the orders of the court as required by the department.

    (c) As a part of any sentence imposed under (a) or (b) of this subsection, 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;

    (v) The offender shall comply with any crime-related prohibitions; or

    (vi) For an offender convicted of a felony sex offense against a minor victim after June 6, 1996, the offender shall comply with any terms and conditions of community placement imposed by the department of corrections relating to contact between the sex offender and a minor victim or a child of similar age or circumstance as a previous victim.

    (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.

    (10)(a) When a court sentences a person to the custody of the department of corrections for an offense categorized as a sex offense committed on or after June 6, 1996, but before July 1, 2000, the court shall, in addition to other terms of the sentence, sentence the offender to community custody for three years or up to the period of earned release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.  The community custody 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 release in accordance with RCW 9.94A.150 (1) and (2).

    (b) Unless a condition is waived by the court, the terms of community custody shall be the same as those provided for in subsection (9)(b) of this section and may include those provided for in subsection (9)(c) of this section.  As part of any sentence that includes a term of community custody imposed under this subsection, the court shall also require the offender to comply with any conditions imposed by the department of corrections under subsection (((15))) (16) of this section.

    (c) At any time prior to the completion of a sex offender's term of community custody, if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the expiration of the offender's term of community custody.  If a violation of a condition extended under this subsection occurs after the expiration of the offender's term of community custody, it shall be deemed a violation of the sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of court as provided for in RCW 7.21.040.

    (11)(a) When a court sentences a person to the custody of the department of corrections for a sex offense not sentenced under subsection (12) of this section, a violent offense, any crime against a person under RCW 9.94A.440(2), or a felony offense under chapter 69.50 or 69.52 RCW not sentenced under subsection (6) of this section, committed on or after July 1, 2000, the court shall in addition to the other terms of the sentence, sentence the offender to community custody for the community custody range or up to the period of earned release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.  The community custody 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 release in accordance with RCW 9.94A.150 (1) and (2).

    (b) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in subsection (9)(b)(i) through (vi) of this section.  The conditions may also include those provided for in subsection (9)(c)(i) through (vi) of this section.  The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community, and the department shall enforce such conditions pursuant to (f) of this subsection.  As part of any sentence that includes a term of community custody imposed under this subsection, the court shall also require the offender to comply with any conditions imposed by the department of corrections under subsection (((15))) (16) of this section.  The department shall assess the offender's risk of reoffense and may establish and modify additional conditions of the offender's community custody based upon the risk to community safety.  The department may not impose conditions that are contrary to those ordered by the court and may not contravene or decrease court imposed conditions.  The department shall notify the offender in writing of any such conditions or modifications.  In setting, modifying, and enforcing conditions of community custody, the department shall be deemed to be performing a quasi-judicial function.

    (c) If an offender violates conditions imposed by the court or the department pursuant to this subsection during community custody, the department may transfer the offender to a more restrictive confinement status and impose other available sanctions as provided in RCW 9.94A.205 and 9.94A.207.

    (d) Except for terms of community custody under subsection (8) of this section, the department shall discharge the offender from community custody on a date determined by the department, which the department may modify, based on risk and performance of the offender, within the range or at the end of the period of earned release, whichever is later.

    (e) At any time prior to the completion or termination of a sex offender's term of community custody, if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the expiration of the offender's term of community custody.  If a violation of a condition extended under this subsection occurs after the expiration of the offender's term of community custody, it shall be deemed a violation of the sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of court as provided for in RCW 7.21.040.  If the court extends a condition beyond the expiration of the term of community custody, the department is not responsible for supervision of the offender's compliance with the condition.

    (f) Within the funds available for community custody, the department shall determine conditions and duration of community custody on the basis of risk to community safety, and shall supervise offenders during community custody on the basis of risk to community safety and conditions imposed by the court.  The secretary shall adopt rules to implement the provisions of this subsection (11)(f).

    (g) By the close of the next business day after receiving notice of a condition imposed or modified by the department, an offender may request an administrative review under rules adopted by the department.  The condition shall remain in effect unless the reviewing officer finds that it is not reasonably related to any of the following:  (i) The crime of conviction; (ii) the offender's risk of reoffending; or (iii) the safety of the community.

    (12)(a) An offender who has been convicted of a sex offense committed on or after July 1, 2000, shall be sentenced as a sexually violent predator if the offender is not a persistent offender and the court finds that the current offense, or any prior offense of which the offender was convicted, was a predatory crime of sexual violence.

(b) Upon a finding at the sentencing hearing that the offender is a sexually violent predator, the court shall impose one of the following sentences:

(i) A sentence under subsection (8) of this section if the offender is otherwise eligible for such a sentence;

(ii) A sentence outside the standard range pursuant to subsection (2) of this section and RCW 9.94A.390, if the offender is otherwise eligible for such a sentence; or

(iii) A sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term within the standard sentence range for the offense.

(c) A sexually violent predator sentenced under (b)(ii) or (iii) of this subsection, or whose suspended sentence under subsection (8) of this subsection has been revoked and ordered executed, shall serve the sentence in a facility or institution operated, or utilized under contract, by the state.

(d) The department shall provide the offender with the opportunity for sex offender treatment during incarceration.  Before the expiration of the minimum term, as part of the end of sentence review process under RCW 72.09.340 and 72.09.345, the department shall conduct, and the offender shall participate in, an examination of the offender, incorporating methodologies that are recognized by experts in the prediction of sexual dangerousness, and including a prediction of the probability that the offender will engage in predatory crimes of sexual violence if released.  The indeterminate sentence review board may contract for an additional, independent examination, subject to the standards in this subsection.

(e) No later than ninety days before expiration of the minimum term, the indeterminate sentence review board shall conduct a hearing to determine whether it is likely that the offender will engage in predatory crimes of sexual violence if released on conditions set by the board.  The board may consider an offender's failure to participate in an evaluation under (d) of this subsection in determining whether to release the offender.  The board shall order the offender released, under such conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit predatory crimes of sexual violence if released.  If the board does not order the offender released, the board shall establish a new minimum term, not to exceed the remainder of the maximum term.

(f) An offender released by the board under this subsection shall be subject to the supervision of the department until the expiration of the maximum term of the sentence.  The department shall monitor the offender's compliance with release conditions set by the board, and promptly report any violations to the board.  The department may recommend conditions of release, subject to board approval.  The board may modify conditions of release at any time.  Any violation of release conditions established or modified by the board shall be subject to the provisions of sections 3 through 8 of this act.

(g) If the department finds that an emergency exists requiring the immediate imposition of conditions of release in addition to those set by the board under (e) and (f) of this subsection in order to prevent the offender from committing a crime, the department may impose additional conditions.  The department may not impose conditions that are contrary to those set by the board and may not contravene or decrease board-imposed conditions.  Conditions imposed under this subsection (12)(g) shall take effect immediately, but shall not remain in effect longer than seven working days unless approved by the board under (f) of this subsection within seven working days.  The board and the secretary shall adopt rules to implement the provisions of this subsection (12)(g).

(13) 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.

    (((13))) (14) 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 for ten years following the entry of the judgment and sentence or ten years following the offender's release from total confinement.  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 unless the superior court extends the criminal judgment an additional ten years.  If the legal financial obligations including crime victims' assessments are not paid during the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional ten years as provided in RCW 9.94A.140, 9.94A.142, and 9.94A.145.  If jurisdiction under the criminal judgment is extended, the department is not responsible for supervision of the offender during the subsequent period.  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.

    (((14))) (15) 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, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.

    (((15))) (16) All offenders sentenced to terms involving community supervision, community service, community placement, community custody, or legal financial obligation shall be under the supervision of the department of corrections and shall follow explicitly the instructions and conditions of the department of corrections.  The department may require an offender to perform affirmative acts it deems appropriate to monitor compliance with the conditions of the sentence imposed.

    (a) The instructions shall include, at a minimum, 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.

    (b) For offenders sentenced to terms involving community custody for crimes committed on or after June 6, 1996, the department may include, in addition to the instructions in (a) of this subsection, any appropriate conditions of supervision, including but not limited to, prohibiting the offender from having contact with any other specified individuals or specific class of individuals.  For offenders sentenced to terms of community custody for crimes committed on or after July 1, 2000, the department may additionally require the offender to participate in rehabilitative programs or otherwise perform affirmative conduct, and to obey all laws.

    The conditions authorized under this subsection (((15))) (16)(b) may be imposed by the department prior to or during an offender's community custody term.  If a violation of conditions imposed by the court or the department pursuant to subsection (10) of this section occurs during community custody, it shall be deemed a violation of community placement for the purposes of RCW 9.94A.207 and shall authorize the department to transfer an offender to a more restrictive confinement status as provided in RCW 9.94A.205.  At any time prior to the completion of an offender's term of community custody, the department may recommend to the court that any or all of the conditions imposed by the court or the department pursuant to subsection (10) or (11) of this section be continued beyond the expiration of the offender's term of community custody as authorized in subsection (10)(c) or (11)(e) of this section.

    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.

    (((16))) (17) All offenders sentenced to terms involving community supervision, community service, community custody, 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.

    (((17))) (18) 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.

    (((18))) (19) 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).

    (((19))) (20) 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.

    (((20))) (21) 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.

    (((21))) (22) The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense.  An order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender's competency or eligibility for a defense of insanity.  The court may order additional evaluations at a later date if deemed appropriate.

    (((22))) (23) 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.

    (((23))) (24) 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.

    (((24))) (25) In sentencing an offender convicted of a crime of domestic violence, as defined in RCW 10.99.020, if the offender has a minor child, or if the victim of the offense for which the offender was convicted has a minor child, the court may, as part of any term of community supervision, order the offender to participate in a domestic violence perpetrator program approved under RCW 26.50.150.

    (((25))) (26)(a) Sex offender examinations and treatment ordered as a special condition of community placement or community custody under this section shall be conducted only by sex offender treatment providers certified by the department of health under chapter 18.155 RCW unless the court finds that:  (i) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (ii) no certified providers are available for treatment within a reasonable geographic distance of the offender's home, as determined in rules adopted by the secretary; (iii) the evaluation and treatment plan comply with the rules adopted by the department of health; or (iv) the treatment provider is employed by the department.  A treatment provider selected by an offender who is not certified by the department of health shall consult with a certified provider during the offender's period of treatment to ensure compliance with the rules adopted by the department of health.  The frequency and content of the consultation shall be based on the recommendation of the certified provider.

    (b) A sex offender's failure to participate in treatment required as a condition of community placement or community custody is a violation that will not be excused on the basis that no treatment provider was located within a reasonable geographic distance of the offender's home.

NEW SECTION. Sec. 3.  Whenever the board or a community corrections officer of this state has reason to believe an offender released under RCW 9.94A.120(12) has violated a release condition or the laws of this state, any community corrections officer may arrest or cause the arrest and detention of the offender pending a determination by the board whether the offender's release should be revoked.  The community corrections officer shall report all facts and circumstances surrounding the alleged violation to the board, with recommendations.  On the basis of the community corrections officer's report, the board may revise or modify the conditions of release, or order the arrest and detention of the offender by peace officers until arrangements can be made by the board to return the offender to state correctional facilities.  Any modifications or revisions of the conditions of release or the order suspending release status shall be personally served upon the offender.

NEW SECTION. Sec. 4.  Any offender released under RCW 9.94A.120(12) who is arrested and detained in physical custody by the authority of a community corrections officer, or upon the written order of the board, shall not be released from custody on bail or personal recognizance, except upon approval of the board and the issuance by the board of an order reinstating the offender's release on the same or modified conditions.  All chiefs of police, marshals of cities and towns, sheriffs of counties, and all police, prison, and peace officers and constables shall execute any such order in the same manner as any ordinary criminal process.

NEW SECTION. Sec. 5.  Whenever an offender released by the board under RCW 9.94A.120(12) is accused of violating a condition of release, other than the commission of, and conviction for, a felony or misdemeanor under the laws of this state, the laws of any state where the offender may then be, or federal law, the offender shall be entitled to a fair and impartial hearing of such charges within thirty days from the time that the offender is served with charges of the violation of conditions of release after arrest and detention.  The hearing shall be held before one or more members of the board at a place or places within the state, reasonably near the site of the alleged violation or violations.

NEW SECTION. Sec. 6.  In the event the board suspends release status of an offender released under RCW 9.94A.120(12) by reason of an alleged violation of a condition of release, or pending disposition of a new criminal charge, the board may nullify the suspension order and reinstate release under previous conditions or any new conditions the board determines advisable.  Before the board may nullify a suspension order and reinstate release, it shall determine that the best interests of society and the offender shall be served by such reinstatement rather than return to confinement.

NEW SECTION. Sec. 7.  (1) Within fifteen days from the date of notice to the department of the arrest and detention of an offender released under RCW 9.94A.120(12) who is alleged to have violated a condition of release, the offender shall be personally served by a state community corrections officer with a copy of the factual allegations of the violation of the conditions of release, and at the same time shall be advised of rights pertaining to an on-site revocation hearing and the rights and privileges provided in this section.  The alleged violator, after service of the allegations of violations of the conditions and advice of rights, may waive the on-site revocation hearing and admit one or more of the alleged violations.  If the board accepts the waiver it shall either:  (a) Reinstate the offender's release status under the same or modified conditions; or (b) revoke release and enter an order of revocation and return to state custody.  The board shall determine a new minimum sentence, not to exceed the unserved portion of the statutory maximum sentence, within thirty days of return to state custody.  If the board rejects the waiver made by the offender, it shall hold an on-site revocation hearing under the provisions of this subsection.

    (2) At any on-site revocation hearing the alleged violator shall be entitled to be represented by an attorney of the alleged violator's own choosing and at the alleged violator's own expense.  Upon the alleged violator's presentation of satisfactory evidence of indigency and request for the appointment of an attorney, the board may cause the appointment of an attorney to represent the alleged violator, to be paid for at state expense, and the board may assume all or such other expenses in the presentation of evidence on behalf of the alleged violator as it may have authorized.  Attorneys to represent alleged violators in on-site hearings shall be appointed by the superior courts for the counties wherein the on-site hearing is to be held and shall be compensated in such manner and in such amount as shall be fixed in a schedule of fees adopted by the board.

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

    (4) At all on-site revocation hearings the community corrections officer of the department, having made the allegations of the violations of the conditions of release, may be represented by the attorney general.  The attorney general may make independent recommendations to the board about whether the violations constitute sufficient cause for the revocation of release status and return of the offender to a state correctional facility.  The hearings shall be open to the public unless the board for specifically stated reasons closes the hearing in whole or in part.  The hearings shall be recorded on audiotape.  An alleged violator of release conditions may be requested to testify and any such testimony shall be used against the offender in any criminal prosecution.  The board shall adopt rules governing the formal and informal procedures authorized by this chapter and make rules of practice before the board in on-site community custody revocation hearings, together with forms and instructions.

    (5) After the on-site revocation hearing has been concluded, the members of the board having heard the matter shall enter their decision of record within ten days, and make findings and conclusions upon the allegations of the violations of the conditions of release.  If the member or members having heard the matter should conclude that the allegations have not been proven by a preponderance of the evidence, or that those which have been proven by a preponderance of the evidence are not sufficient cause for the revocation of release, then the offender shall be reinstated on release status on the same or modified conditions.  For violations of release conditions not resulting in new convictions, modified conditions may include sanctions based on an administrative grid.  If the member or members having heard the matter should conclude that the allegations have been proven by a preponderance of the evidence and constitute sufficient cause for revocation of release, then the member or members shall enter an order of revocation and return the offender to state custody.  Within thirty days of the offender's return to a state correctional facility the board shall enter an order determining a new minimum sentence, not to exceed the remaining unserved portion of the statutory maximum sentence.

    (6) All officers and employees of the state, counties, cities, and political subdivisions of the state shall cooperate with the board in making available suitable facilities for conducting revocation hearings.

NEW SECTION. Sec. 8.  To assist it in fixing a new minimum sentence and in fixing the conditions for an offender's release from confinement under RCW 9.94A.120(12), it shall be the duty of the board not only to inform itself thoroughly as to the facts of the offender's crime but also to inform itself as thoroughly as possible of the offender's personality.  The department and the institutions under its control shall make available to the board on request its case investigations, any file, or other record in order to assist the board in developing information for carrying out the purposes of this section.

    Sec. 9.  RCW 9.94A.060 and 1996 c 232 s 3 are each amended to read as follows:

    (1) The commission consists of twenty voting members, one of whom the governor shall designate as chairperson.  With the exception of ex officio voting members, the voting members of the commission shall be appointed by the governor, subject to confirmation by the senate.

    (2) The voting membership consists of the following:

    (a) The head of the state agency having general responsibility for adult correction programs, as an ex officio member;

    (b) The director of financial management or designee, as an ex officio member;

    (c) ((Until the indeterminate sentence review board ceases to exist pursuant to RCW 9.95.0011,)) The chair of the indeterminate sentence review board, as an ex officio member;

    (d) The head of the state agency, or the agency head's designee, having responsibility for juvenile corrections programs, as an ex officio member;

    (e) Two prosecuting attorneys;

    (f) Two attorneys with particular expertise in defense work;

    (g) Four persons who are superior court judges;

    (h) One person who is the chief law enforcement officer of a county or city;

    (i) Four members of the public who are not prosecutors, defense attorneys, judges, or law enforcement officers, one of whom is a victim of crime or a crime victims' advocate;

    (j) One person who is an elected official of a county government, other than a prosecuting attorney or sheriff;

    (k) One person who is an elected official of a city government;

    (l) One person who is an administrator of juvenile court services.

    In making the appointments, the governor shall endeavor to assure that the commission membership includes adequate representation and expertise relating to both the adult criminal justice system and the juvenile justice system.  In making the appointments, the governor shall seek the recommendations of Washington prosecutors in respect to the prosecuting attorney members, of the Washington state bar association in respect to the defense attorney members, of the association of superior court judges in respect to the members who are judges, of the Washington association of sheriffs and police chiefs in respect to the member who is a law enforcement officer, of the Washington state association of counties in respect to the member who is a county official, of the association of Washington cities in respect to the member who is a city official, of the office of crime victims advocacy and other organizations of crime victims in respect to the member who is a victim of crime or a crime victims' advocate, and of the Washington association of juvenile court administrators in respect to the member who is an administrator of juvenile court services.

    (3)(a) All voting members of the commission, except ex officio voting members, shall serve terms of three years and until their successors are appointed and confirmed.

    (b) The governor shall stagger the terms of the members appointed under subsection (2)(j), (k), and (l) of this section by appointing one of them for a term of one year, one for a term of two years, and one for a term of three years.

    (4) The speaker of the house of representatives and the president of the senate may each appoint two nonvoting members to the commission, one from each of the two largest caucuses in each house.  The members so appointed shall serve two-year terms, or until they cease to be members of the house from which they were appointed, whichever occurs first.

    (5) The members of the commission shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.  Legislative members shall be reimbursed by their respective houses as provided under RCW 44.04.120((, as now existing or hereafter amended)).  Members shall be compensated in accordance with RCW 43.03.250.

    Sec. 10.  RCW 9.94A.190 and 1995 c 108 s 4 are each amended to read as follows:

    (1) A sentence that includes a term or terms of confinement totaling more than one year shall be served in a facility or institution operated, or utilized under contract, by the state.  Except as provided for in subsection (3) of this section, a sentence of not more than one year of confinement shall be served in a facility operated, licensed, or utilized under contract, by the county, or if home detention or work crew has been ordered by the court, in the residence of either the defendant or a member of the defendant's immediate family.

    (2) If a county uses a state partial confinement facility for the partial confinement of a person sentenced to confinement for not more than one year, the county shall reimburse the state for the use of the facility as provided for in this subsection. The office of financial management shall set the rate of reimbursement based upon the average per diem cost per offender in the facility.  The office of financial management shall determine to what extent, if any, reimbursement shall be reduced or eliminated because of funds provided by the legislature to the department of corrections for the purpose of covering the cost of county use of state partial confinement facilities.  The office of financial management shall reestablish reimbursement rates each even-numbered year.

    (3) A person who is sentenced for a felony to a term of not more than one year, and who is committed or returned to incarceration in a state facility on another felony conviction, either under the indeterminate sentencing laws, chapter 9.95 RCW, or under this chapter shall serve all terms of confinement, including a sentence of not more than one year, in a facility or institution operated, or utilized under contract, by the state, consistent with the provisions of RCW 9.94A.400.

    (4) For sentences imposed pursuant to RCW 9.94A.120(6) which have a sentence range of over one year, notwithstanding any other provision of this section all such sentences regardless of length shall be served in a facility or institution operated, or utilized under contract, by the state.

(5) Sentences imposed pursuant to RCW 9.94A.120(12) shall be served in a facility or institution operated, or utilized under contract, by the state.

    Sec. 11.  RCW 9.94A.370 and 1999 c 143 s 16 are each amended to read as follows:

    (1) The intersection of the column defined by the offender score and the row defined by the offense seriousness score determines the presumptive sentencing range (see RCW 9.94A.310, (Table 1)).  The additional time for deadly weapon findings or for those offenses enumerated in RCW 9.94A.310(4) that were committed in a state correctional facility or county jail shall be added to the entire presumptive sentence range.  The court may impose any sentence within the range that it deems appropriate.  All presumptive sentence ranges are expressed in terms of total confinement.

    (2) In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.  Acknowledgement includes not objecting to information stated in the presentence reports.  Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.  The facts shall be deemed proved at the hearing by a preponderance of the evidence.  Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in RCW 9.94A.390(2) (d), (e), (g), ((and)) (h), (m), and (n).

    Sec. 12.  RCW 9.94A.390 and 1999 c 330 s 1 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 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.

    (l) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization.

(m) The defendant has been convicted of a predatory crime of sexual violence, has a history of similar acts, and lacks amenability to treatment.

(n) The defendant has been convicted of a predatory crime of sexual violence and the defendant's conduct involved multiple incidents of cruelty or sexual deviance, directed at the victim over a prolonged period of time.

    Sec. 13.  RCW 9.95.900 and 1981 c 137 s 32 are each amended to read as follows:

    The following sections of law do not apply to any felony offense committed on or after July 1, 1984, except offenses committed on or after the effective date of this section and sentenced under RCW 9.94A.120(11):  RCW 9.95.003, 9.95.005, 9.95.007, 9.95.010, 9.95.015, 9.95.020, 9.95.030, 9.95.031, 9.95.032, 9.95.040, 9.95.052, 9.95.070, 9.95.080, 9.95.090, 9.95.100, 9.95.110, 9.95.115, 9.95.120, 9.95.121, 9.95.122, 9.95.123, 9.95.124, 9.95.125, 9.95.126, 9.95.130, 9.95.140, 9.95.150, 9.95.160, 9.95.170, 9.95.190, 9.95.200, 9.95.210, 9.95.220, 9.95.230, 9.95.240, 9.95.250, 9.95.260, 9.95.265, 9.95.350, and 9.95.360.

    Sec. 14.  RCW 9A.28.020 and 1994 c 271 s 101 are each amended to read as follows:

    (1) A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.

    (2) If the conduct in which a person engages otherwise constitutes an attempt to commit a crime, it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission.

    (3) An attempt to commit a crime is a:

    (a) Class A felony when the crime attempted is murder in the first degree, murder in the second degree, ((or)) arson in the first degree, child molestation in the first degree, indecent liberties by forcible compulsion, rape in the first degree, rape in the second degree, rape of a child in the first degree, or rape of a child in the second degree;

    (b) Class B felony when the crime attempted is a class A felony other than murder in the first degree, murder in the second degree, ((or)) arson in the first degree, child molestation in the first degree, indecent liberties by forcible compulsion, rape in the first degree, rape in the second degree, rape of a child in the first degree, or rape of a child in the second degree;

    (c) Class C felony when the crime attempted is a class B felony;

    (d) Gross misdemeanor when the crime attempted is a class C felony;

    (e) Misdemeanor when the crime attempted is a gross misdemeanor or misdemeanor.

    Sec. 15.  RCW 9A.36.021 and 1997 c 196 s 2 are each amended to read as follows:

    (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

    (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or

    (b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or

    (c) Assaults another with a deadly weapon; or

    (d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or

    (e) With intent to commit a felony, assaults another; or

    (f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.

    (2) Assault in the second degree is a class B felony, except that assault in the second degree with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135 is a class A felony.

    Sec. 16.  RCW 9A.40.030 and 1975 1st ex.s. c 260 s 9A.40.030 are each amended to read as follows:

    (1) A person is guilty of kidnapping in the second degree if he or she intentionally abducts another person under circumstances not amounting to kidnapping in the first degree.

    (2) In any prosecution for kidnapping in the second degree, it is a defense if established by the defendant by a preponderance of the evidence that (a) the abduction does not include the use of or intent to use or threat to use deadly force, and (b) the actor is a relative of the person abducted, and (c) the actor's sole intent is to assume custody of that person.  Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, any other crime.

    (3) Kidnapping in the second degree is a class B felony, except that kidnapping in the second degree with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135 is a class A felony.

    Sec. 17.  RCW 9A.44.100 and 1997 c 392 s 515 are each amended to read as follows:

    (1) A person is guilty of indecent liberties when he or she knowingly causes another person who is not his or her spouse to have sexual contact with him or her or another:

    (a) By forcible compulsion;

    (b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless;

    (c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

    (d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination.  It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment;

    (e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or

    (f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

    (2) Indecent liberties is a class B felony, except that indecent liberties by forcible compulsion is a class A felony.

NEW SECTION. Sec. 18.  RCW 9.95.0011 (Indeterminate sentence review board--Report--Recommendation of governor) and 1997 c 350 s 1, 1989 c 259 s 4, & 1986 c 224 s 12 are each repealed.

NEW SECTION. Sec. 19.  The secretary of corrections and the indeterminate sentence review board may adopt rules to implement sections 2 through 8 of this act.

NEW SECTION. Sec. 20.  Sections 3 through 8 of this act are each added to chapter 9.94A RCW.

NEW SECTION. Sec. 21.  This act shall not affect the validity of any sentence imposed under any other law for any offense committed before, on, or after the effective date of this act.

NEW SECTION. Sec. 22.  This act shall apply to offenses committed on or after the effective date of this act.

NEW SECTION. Sec. 23.  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 takes effect immediately.

NEW SECTION. Sec. 24.  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.

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