AN
ACT Relating to the supervision of offenders in the community; amending RCW
9.94A.010, 9.94A.030, 9.94A.110, 9.94A.120, 9.94A.170, 9.94A.205, 9.94A.207,
9.94A.383, 9.94A.440, and 9A.44.135; reenacting and amending RCW 9.94A.040 and
9.94A.145; adding new sections to chapter 72.09 RCW; creating new sections;
prescribing penalties; providing an effective date; and providing an expiration
date.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
9.94A.010 and 1981 c 137 s 1 are each amended to read as follows:
The
purpose of this chapter is to make the criminal justice system accountable to
the public by developing a system for the sentencing of felony offenders which
structures, but does not eliminate, discretionary decisions affecting
sentences, and to ((add a new chapter to Title 9 RCW designed to)):
(1)
Ensure that the punishment for a criminal offense is proportionate to the
seriousness of the offense and the offender's criminal history;
(2)
Promote respect for the law by providing punishment which is just;
(3)
Be commensurate with the punishment imposed on others committing similar
offenses;
(4)
Protect the public;
(5)
Offer the offender an opportunity to improve him or herself; ((and))
(6)
Make frugal use of the state's and local governments' resources; and
(7)
Reduce the risk of reoffending by offenders in the community.
Sec.
2. RCW
9.94A.030 and 1998 c 290 s 3 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Collect," or any derivative thereof, "collect and remit,"
or "collect and deliver," when used with reference to the department
of corrections, means that the department, 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)
"Commission" means the sentencing guidelines commission.
(3)
"Community corrections officer" means an employee of the department
who is responsible for carrying out specific duties in supervision of sentenced
offenders and monitoring of sentence conditions.
(4)
"Community custody" means that portion of an ((inmate's)) offender's
sentence of confinement in lieu of earned ((early)) release time or
imposed pursuant to RCW 9.94A.120 (5), (6), (7), (8), ((or))
(10), or (11), or RCW 9.94A.383, served in the community subject to
controls placed on the ((inmate's)) 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)
"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)
"Community placement" means that period during which the offender is
subject to the conditions of community custody and/or postrelease supervision,
which begins either upon completion of the term of confinement (postrelease
supervision) or at such time as the offender is transferred to community
custody in lieu of earned ((early)) release. Community placement may
consist of entirely community custody, entirely postrelease supervision, or a
combination of the two.
(((6)))
(7) "Community service" means compulsory service, without
compensation, performed for the benefit of the community by the offender.
(((7)))
(8) "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). For purposes of the interstate compact for out-of-state
supervision of parolees and probationers, RCW 9.95.270, community supervision
is the functional equivalent of probation and should be considered the same as
probation by other states.
(((8)))
(9) "Confinement" means total or partial confinement as
defined in this section.
(((9)))
(10) "Conviction" means an adjudication of guilt pursuant to
Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and
acceptance of a plea of guilty.
(((10)))
(11) "Court-ordered legal financial obligation" means a sum of
money that is ordered by a superior court of the state of Washington for legal
financial obligations which may include restitution to the victim, statutorily
imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035,
court costs, county or interlocal drug funds, court-appointed attorneys' fees,
and costs of defense, fines, and any other financial obligation that is
assessed to the offender as a result of a felony conviction. Upon conviction
for vehicular assault while under the influence of intoxicating liquor or any
drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense of an
emergency response to the incident resulting in the conviction, subject to the
provisions in RCW 38.52.430.
(((11)))
(12) "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.
(((12)))
(13) "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.
(((13)))
(14) "Day fine" means a fine imposed by the sentencing judge
that equals the difference between the offender's net daily income and the
reasonable obligations that the offender has for the support of the offender
and any dependents.
(((14)))
(15) "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.
(((15)))
(16) "Department" means the department of corrections.
(((16)))
(17) "Determinate sentence" means a sentence that states with
exactitude the number of actual years, months, or days of total confinement, of
partial confinement, of community supervision, the number of actual hours or
days of community service work, or dollars or terms of a legal financial
obligation. The fact that an offender through "earned ((early))
release" can reduce the actual period of confinement shall not affect the
classification of the sentence as a determinate sentence.
(((17)))
(18) "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.
(((18)))
(19) "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.
(((19)))
(20) "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.
(((20)))
(21) "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.
(((21)))
(22) "Fines" means the requirement that the offender pay a
specific sum of money over a specific period of time to the court.
(((22)))
(23) "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.
(((23)))
(24) "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)
"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.
(((24)))
(26) "Nonviolent offense" means an offense which is not a
violent offense.
(((25)))
(27) "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.
(((26)))
(28) "Partial confinement" means confinement for no more than
one year in a facility or institution operated or utilized under contract by
the state or any other unit of government, or, if home detention or work crew
has been ordered by the court, in an approved residence, for a substantial
portion of each day with the balance of the day spent in the community.
Partial confinement includes work release, home detention, work crew, and a
combination of work crew and home detention as defined in this section.
(((27)))
(29) "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 (((27))) (29)(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 subsection
(((27))) (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 subsection (((27)))
(29)(b)(i) only when the offender was eighteen years of age or older
when the offender committed the offense.
(((28)))
(30) "Postrelease supervision" is that portion of an
offender's community placement that is not community custody.
(((29)))
(31) "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.
(((30)))
(32) "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)
"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.
(((31)))
(34) "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.
(((32)))
(35) "Sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(((33)))
(36) "Sex offense" means:
(a)
A felony that is a violation of chapter 9A.44 RCW or RCW 9A.64.020 or 9.68A.090
or a felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal
solicitation, or criminal conspiracy to commit such crimes;
(b)
A felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135;
or
(c)
Any federal or out-of-state conviction for an offense that under the laws of
this state would be a felony classified as a sex offense under (a) of this
subsection.
(((34)))
(37) "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.
(((35)))
(38) "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.
(((36)))
(39) "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.
(((37)))
(40) "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.
(((38)))
(41) "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.
(((39)))
(42) "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 (((33)))
(36) of this section are not eligible for the work crew program.
(((40)))
(43) "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.
(((41)))
(44) "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.
(((42)
"Home detention" means a program of partial confinement available to
offenders wherein the offender is confined in a private residence subject to
electronic surveillance.))
Sec.
3. RCW
9.94A.040 and 1997 c 365 s 2 and 1997 c 338 s 3 are each reenacted and amended
to read as follows:
(1)
A sentencing guidelines commission is established as an agency of state
government.
(2)
The legislature finds that the commission, having accomplished its original
statutory directive to implement this chapter, and having expertise in
sentencing practice and policies, shall:
(a)
Evaluate state sentencing policy, to include whether the sentencing ranges and
standards are consistent with and further:
(i)
The purposes of this chapter as defined in RCW 9.94A.010; and
(ii)
The intent of the legislature to emphasize confinement for the violent offender
and alternatives to confinement for the nonviolent offender.
The
commission shall provide the governor and the legislature with its evaluation
and recommendations under this subsection not later than December 1, 1996, and
every two years thereafter;
(b)
Recommend to the legislature revisions or modifications to the standard
sentence ranges, state sentencing policy, prosecuting standards, and other
standards. If implementation of the revisions or modifications would result in
exceeding the capacity of correctional facilities, then the commission shall
accompany its recommendation with an additional list of standard sentence
ranges which are consistent with correction capacity;
(c)
Study the existing criminal code and from time to time make recommendations to
the legislature for modification;
(d)(i)
Serve as a clearinghouse and information center for the collection,
preparation, analysis, and dissemination of information on state and local
adult and juvenile sentencing practices; (ii) develop and maintain a
computerized adult and juvenile sentencing information system by individual
superior court judge consisting of offender, offense, history, and sentence
information entered from judgment and sentence forms for all adult felons; and
(iii) conduct ongoing research regarding adult and juvenile sentencing
guidelines, use of total confinement and alternatives to total confinement,
plea bargaining, and other matters relating to the improvement of the adult
criminal justice system and the juvenile justice system;
(e)
Assume the powers and duties of the juvenile disposition standards commission
after June 30, 1996;
(f)
Evaluate the effectiveness of existing disposition standards and related
statutes in implementing policies set forth in RCW 13.40.010 generally,
specifically review the guidelines relating to the confinement of minor and
first offenders as well as the use of diversion, and review the application of
current and proposed juvenile sentencing standards and guidelines for potential
adverse impacts on the sentencing outcomes of racial and ethnic minority youth;
(g)
Solicit the comments and suggestions of the juvenile justice community
concerning disposition standards, and make recommendations to the legislature
regarding revisions or modifications of the standards. The evaluations shall
be submitted to the legislature on December 1 of each odd-numbered year. The
department of social and health services shall provide the commission with
available data concerning the implementation of the disposition standards and
related statutes and their effect on the performance of the department's
responsibilities relating to juvenile offenders, and with recommendations for
modification of the disposition standards. The office of the administrator for
the courts shall provide the commission with available data on diversion and
dispositions of juvenile offenders under chapter 13.40 RCW; and
(h)
Not later than December 1, 1997, and at least every two years thereafter, based
on available information, report to the governor and the legislature on:
(i)
Racial disproportionality in juvenile and adult sentencing;
(ii)
The capacity of state and local juvenile and adult facilities and resources;
and
(iii)
Recidivism information on adult and juvenile offenders.
(3)
Each of the commission's recommended standard sentence ranges shall include one
or more of the following: Total confinement, partial confinement, community
supervision, community service, and a fine.
(4)
The standard sentence ranges of total and partial confinement under this
chapter are subject to the following limitations:
(a)
If the maximum term in the range is one year or less, the minimum term in the
range shall be no less than one-third of the maximum term in the range, except
that if the maximum term in the range is ninety days or less, the minimum term
may be less than one-third of the maximum;
(b)
If the maximum term in the range is greater than one year, the minimum term in
the range shall be no less than seventy-five percent of the maximum term in the
range, except that for murder in the second degree in seriousness category XIII
under RCW 9.94A.310, the minimum term in the range shall be no less than fifty
percent of the maximum term in the range; and
(c)
The maximum term of confinement in a range may not exceed the statutory maximum
for the crime as provided in RCW 9A.20.021.
(5)(a)
Not later than December 31, 1999, the commission shall propose to the
legislature the initial community custody ranges to be included in sentences
under RCW 9.94A.120(11) for crimes committed on or after July 1, 2000. Not
later than December 31 of each year, the commission may propose modifications
to the ranges. The ranges shall be based on the principles in RCW 9.94A.010,
and shall take into account the funds available to the department for community
custody. The minimum term in each range shall not be less than one-half of the
maximum term.
(b)
The legislature may, by enactment of a legislative bill, adopt or modify the
community custody ranges proposed by the commission. If the legislature fails
to adopt or modify the initial ranges in its next regular session after they
are proposed, the proposed ranges shall take effect without legislative
approval for crimes committed on or after July 1, 2000.
(c)
When the commission proposes modifications to ranges pursuant to this subsection,
the legislature may, by enactment of a bill, adopt or modify the ranges
proposed by the commission for crimes committed on or after July 1 of the year
after they were proposed. Unless the legislature adopts or modifies the
commission's proposal in its next regular session, the proposed ranges shall
not take effect.
(6)
The commission shall exercise its duties under this section in conformity with
chapter 34.05 RCW.
Sec.
4. RCW
9.94A.110 and 1998 c 260 s 2 are each amended to read as follows:
Before
imposing a sentence upon a defendant, the court shall conduct a sentencing
hearing. The sentencing hearing shall be held within forty court days
following conviction. Upon the motion of either party for good cause shown, or
on its own motion, the court may extend the time period for conducting the
sentencing hearing.
Except
in cases where the defendant shall be sentenced to a term of total confinement
for life without the possibility of release or, when authorized by RCW
10.95.030 for the crime of aggravated murder in the first degree, sentenced to
death, the court may order the department to complete a risk assessment
report. If available before sentencing, the report shall be provided to the
court.
The
court shall, at the time of plea or conviction, order the department to
complete a presentence report before imposing a sentence upon a defendant who
has been convicted of a felony sexual offense. The department of corrections
shall give priority to presentence investigations for sexual offenders. If the
court determines that the defendant may be a mentally ill person as defined in
RCW 71.24.025, although the defendant has not established that at the time of
the crime he or she lacked the capacity to commit the crime, was incompetent to
commit the crime, or was insane at the time of the crime, the court shall order
the department to complete a presentence report before imposing a sentence.
The
court shall consider the risk assessment report and presentence reports,
if any, including any victim impact statement and criminal history, and allow
arguments from the prosecutor, the defense counsel, the offender, the victim,
the survivor of the victim, or a representative of the victim or survivor, and
an investigative law enforcement officer as to the sentence to be imposed.
If
the court is satisfied by a preponderance of the evidence that the defendant
has a criminal history, the court shall specify the convictions it has found to
exist. All of this information shall be part of the record. Copies of all risk
assessment reports and presentence reports presented to the sentencing
court and all written findings of facts and conclusions of law as to sentencing
entered by the court shall be sent to the department by the clerk of the court
at the conclusion of the sentencing and shall accompany the offender if the
offender is committed to the custody of the department. Court clerks shall
provide, without charge, certified copies of documents relating to criminal
convictions requested by prosecuting attorneys.
Sec.
5. RCW
9.94A.120 and 1998 c 260 s 3 are each 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.
(4)
A persistent offender shall be sentenced to a term of total confinement for
life without the possibility of parole or, when authorized by RCW 10.95.030 for
the crime of aggravated murder in the first degree, sentenced to death,
notwithstanding the maximum sentence under any other law. An offender
convicted of the crime of murder in the first degree shall be sentenced to a
term of total confinement not less than twenty years. An offender convicted of
the crime of assault in the first degree or assault of a child in the first
degree where the offender used force or means likely to result in death or
intended to kill the victim shall be sentenced to a term of total confinement
not less than five years. An offender convicted of the crime of rape in the
first degree shall be sentenced to a term of total confinement not less than
five years. The foregoing minimum terms of total confinement are mandatory and
shall not be varied or modified as provided in subsection (2) of this section.
In addition, all offenders subject to the provisions of this subsection shall
not be eligible for community custody, earned ((early)) release time,
furlough, home detention, partial confinement, work crew, work release, or any
other form of early release as defined under RCW 9.94A.150 (1), (2), (3), (5),
(7), or (8), or any other form of authorized leave of absence from the
correctional facility while not in the direct custody of a corrections officer
or officers during such minimum terms of total confinement except in the case
of an offender in need of emergency medical treatment or for the purpose of
commitment to an inpatient treatment facility in the case of an offender
convicted of the crime of rape in the first degree.
(5)(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 ((up to two years of community
supervision)) 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:
(((a)))
(i) Devote time to a specific employment or occupation;
(((b)))
(ii) Undergo available outpatient treatment for up to ((two years))
the period specified in (b) of this subsection, or inpatient treatment
not to exceed the standard range of confinement for that offense;
(((c)))
(iii) Pursue a prescribed, secular course of study or vocational
training;
(((d)))
(iv) Remain within prescribed geographical boundaries and notify ((the
court or)) the community corrections officer prior to any change in the
offender's address or employment;
(((e)))
(v) Report as directed to ((the court and)) a community
corrections officer; or
(((f)))
(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 the effective date of this section, 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 the effective date of this section
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 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 a felony that is, under chapter 9A.28 RCW or
RCW 69.50.407, a criminal attempt, criminal solicitation, or criminal
conspiracy to commit such crimes, and the violation does not involve a sentence
enhancement under RCW 9.94A.310 (3) or (4);
(ii)
The offender has no prior convictions for a felony in this state, another
state, or the United States; and
(iii)
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.
(b)
If the midpoint of 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. If the midpoint
of the standard range is twenty-four months or less, no more than three months
of the sentence may be served in a work release status. The court shall also impose
one year of concurrent community custody and community supervision that must
include appropriate outpatient substance abuse treatment, crime-related
prohibitions including a condition not to use illegal controlled substances,
and a requirement to submit to urinalysis or other testing to monitor that
status. The court 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:
(i)
Devote time to a specific employment or training;
(ii)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer before any change in the offender's address or
employment;
(iii)
Report as directed to a community corrections officer;
(iv)
Pay all court-ordered legal financial obligations;
(v)
Perform community service work;
(vi)
Stay out of areas designated by the sentencing judge.
(c)
If the offender violates any of the sentence conditions in (b) of this
subsection, the department shall impose sanctions administratively, with notice
to the prosecuting attorney and the sentencing court. Upon motion of the court
or the prosecuting attorney, a violation hearing shall be held by the court.
If the court finds that conditions have been willfully violated, the court may
impose confinement consisting of up to the remaining one-half of the midpoint
of the standard range. All total confinement served during the period of
community custody shall be credited to the offender, regardless of whether the
total confinement is served as a result of the original sentence, as a result
of a sanction imposed by the department, or as a result of a violation found by
the court. The term of community supervision shall be tolled by any period of
time served in total confinement as a result of a violation found by the court.
(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.
(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 then impose a sentence within the sentence range. If this sentence is
less than eleven years of confinement, the court may suspend the execution of
the sentence and impose the following conditions of suspension:
(A)
The court shall place the defendant on community 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 (((14))) (15) of this section;
(B)
The court shall order treatment for any period up to three years in duration.
The court in its discretion shall order outpatient sex offender treatment or
inpatient sex offender treatment, if available. A community mental health
center may not be used for such treatment unless it has an appropriate program
designed for sex offender treatment. The offender shall not change sex
offender treatment providers or treatment conditions without first notifying
the prosecutor, the community corrections officer, and the court, and shall not
change providers without court approval after a hearing if the prosecutor or
community corrections officer object to the change. In addition, as conditions
of the suspended sentence, the court may impose other sentence conditions
including up to six months of confinement, not to exceed the sentence range of
confinement for that offense, crime-related prohibitions, and requirements that
the offender perform any one or more of the following:
(I)
Devote time to a specific employment or occupation;
(II)
Remain within prescribed geographical boundaries and notify the court or the
community corrections officer prior to any change in the offender's address or
employment;
(III)
Report as directed to the court and a community corrections officer;
(IV)
Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030,
perform community service work, or any combination thereof; or
(V)
Make recoupment to the victim for the cost of any counseling required as a
result of the offender's crime; and
(C)
Sex offenders sentenced under this special sex offender sentencing alternative
are not eligible to accrue any earned ((early)) 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.
(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 the effective date of this section, the court shall
in addition to the other terms of the sentence, sentence the offender to a
one-year term of community placement beginning either upon completion of the
term of confinement or at such time as the offender is transferred to community
custody in lieu of earned ((early)) release in accordance with RCW
9.94A.150 (1) and (2). When the court sentences an offender under this
subsection to the statutory maximum period of confinement then the community
placement portion of the sentence shall consist entirely of such community
custody to which the offender may become eligible, in accordance with RCW
9.94A.150 (1) and (2). Any period of community custody actually served shall
be credited against the community placement portion of the sentence.
(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 the effective date of this section 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 ((early)) release
awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer. The
community placement shall begin either upon completion of the term of
confinement or at such time as the offender is transferred to community custody
in lieu of earned ((early)) release in accordance with RCW 9.94A.150 (1)
and (2). When the court sentences an offender under this subsection to the
statutory maximum period of confinement then the community placement portion of
the sentence shall consist entirely of the community custody to which the
offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).
Any period of community custody actually served shall be credited against the
community placement portion of the sentence. Unless a condition is waived by
the court, the terms of community placement for offenders sentenced pursuant to
this section shall include the following conditions:
(i)
The offender shall report to and be available for contact with the assigned
community corrections officer as directed;
(ii)
The offender shall work at department of corrections-approved education,
employment, and/or community service;
(iii)
The offender shall not 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 ((early)) 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 ((early))
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 (((14)))
(15) 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, 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) 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)
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.
(((12)))
(13) 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.
(((13)))
(14) Except as provided under RCW 9.94A.140(1) and 9.94A.142(1), a court
may not impose a sentence providing for a term of confinement or community
supervision ((or)), community placement, or community custody
which exceeds the statutory maximum for the crime as provided in chapter 9A.20
RCW.
(((14)))
(15) 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 (((14))) (15)(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 ((a sex)) 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.
(((15)))
(16) 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.
(((16)))
(17) 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.
(((17)))
(18) 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).
(((18)))
(19) 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.
(((19)))
(20) 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.
(((20)))
(21) 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.
(((21)))
(22) 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.
(((22)))
(23) 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)(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.
Sec.
6. RCW
9.94A.145 and 1997 c 121 s 5 and 1997 c 52 s 3 are each reenacted and amended
to read as follows:
(1)
Whenever a person is convicted of a felony, the court may order the payment of
a legal financial obligation as part of the sentence. The court must on either
the judgment and sentence or on a subsequent order to pay, designate the total
amount of a legal financial obligation and segregate this amount among the
separate assessments made for restitution, costs, fines, and other assessments
required by law. On the same order, the court is also to set a sum that the
offender is required to pay on a monthly basis towards satisfying the legal
financial obligation. If the court fails to set the offender monthly payment
amount, the department shall set the amount. Upon receipt of an offender's
monthly payment, after restitution is satisfied, the county clerk shall
distribute the payment proportionally among all other fines, costs, and
assessments imposed, unless otherwise ordered by the court.
(2)
If the court determines that the offender, at the time of sentencing, has the
means to pay for the cost of incarceration, the court may require the offender
to pay for the cost of incarceration at a rate of fifty dollars per day of
incarceration. Payment of other court-ordered financial obligations, including
all legal financial obligations and costs of supervision shall take precedence
over the payment of the cost of incarceration ordered by the court. All funds
recovered from offenders for the cost of incarceration in the county jail shall
be remitted to the county and the costs of incarceration in a prison shall be
remitted to the department of corrections.
(3)
The court may add to the judgment and sentence or subsequent order to pay a
statement that a notice of payroll deduction is to be immediately issued. If
the court chooses not to order the immediate issuance of a notice of payroll
deduction at sentencing, the court shall add to the judgment and sentence or
subsequent order to pay a statement that a notice of payroll deduction may be
issued or other income-withholding action may be taken, without further notice
to the offender if a monthly court-ordered legal financial obligation payment
is not paid when due, and an amount equal to or greater than the amount payable
for one month is owed.
If
a judgment and sentence or subsequent order to pay does not include the
statement that a notice of payroll deduction may be issued or other
income-withholding action may be taken if a monthly legal financial obligation
payment is past due, the department may serve a notice on the offender stating
such requirements and authorizations. Service shall be by personal service or
any form of mail requiring a return receipt.
(4)
All legal financial obligations that are ordered as a result of a conviction
for a felony, may also be enforced in the same manner as a judgment in a civil
action by the party or entity to whom the legal financial obligation is owed.
Restitution collected through civil enforcement must be paid through the
registry of the court and must be distributed proportionately according to each
victim's loss when there is more than one victim. The judgment and sentence
shall identify the party or entity to whom restitution is owed so that the
state, party, or entity may enforce the judgment. If restitution is ordered
pursuant to RCW 9.94A.140(3) or 9.94A.142(3) to a victim of rape of a child and
the victim's child born from the rape, the Washington state child support
registry shall be identified as the party to whom payments must be made.
Restitution obligations arising from the rape of a child in the first, second,
or third degree that result in the pregnancy of the victim may be enforced for
the time periods provided under RCW 9.94A.140(3) and 9.94A.142(3). All other
legal financial obligations may be enforced at any time during the ten-year
period following the offender's release from total confinement or within ten
years of entry of the judgment and sentence, whichever period is longer. Prior
to the expiration of the initial ten-year period, the superior court may extend
the criminal judgment an additional ten years for payment of legal financial
obligations including crime victims' assessments. 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.
(5)
In order to assist the court in setting a monthly sum that the offender must
pay during the period of supervision, the offender is required to report to the
department for purposes of preparing a recommendation to the court. When
reporting, the offender is required, under oath, to truthfully and honestly
respond to all questions concerning present, past, and future earning
capabilities and the location and nature of all property or financial assets.
The offender is further required to bring any and all documents as requested by
the department.
(6)
After completing the investigation, the department shall make a report to the
court on the amount of the monthly payment that the offender should be required
to make towards a satisfied legal financial obligation.
(7)
During the period of supervision, the department may make a recommendation to
the court that the offender's monthly payment schedule be modified so as to
reflect a change in financial circumstances. If the department sets the
monthly payment amount, the department may modify the monthly payment amount
without the matter being returned to the court. Also, during the period of
supervision, the offender may be required at the request of the department to
report to the department for the purposes of reviewing the appropriateness of
the collection schedule for the legal financial obligation. During this
reporting, the offender is required under oath to truthfully and honestly
respond to all questions concerning earning capabilities and the location and
nature of all property or financial assets. Also, the offender is required to
bring any and all documents as requested by the department in order to prepare
the collection schedule.
(8)
After the judgment and sentence or payment order is entered, the department
shall for any period of supervision be authorized to collect the legal
financial obligation from the offender. Any amount collected by the department
shall be remitted daily to the county clerk for the purposes of disbursements.
The department is authorized to accept credit cards as payment for a legal financial
obligation, and any costs incurred related to accepting credit card payments
shall be the responsibility of the offender.
(9)
The department or any obligee of the legal financial obligation may seek a
mandatory wage assignment for the purposes of obtaining satisfaction for the
legal financial obligation pursuant to RCW 9.94A.2001.
(10)
The requirement that the offender pay a monthly sum towards a legal financial
obligation constitutes a condition or requirement of a sentence and the
offender is subject to the penalties as provided in RCW 9.94A.200 for
noncompliance.
(11)
The county clerk shall provide the department with individualized monthly
billings for each offender with an unsatisfied legal financial obligation and
shall provide the department with notice of payments by such offenders no less
frequently than weekly.
(12)
The department may arrange for the collection of unpaid legal financial
obligations through the county clerk, or through another entity if the clerk
does not assume responsibility for collection. The costs for collection
services shall be paid by the offender.
Sec.
7. RCW
9.94A.170 and 1993 c 31 s 2 are each amended to read as follows:
(1)
A term of confinement((, including community custody,)) ordered in a
sentence pursuant to this chapter shall be tolled by any period of time during
which the offender has absented ((him)) himself or herself from
confinement without the prior approval of the entity in whose custody the
offender has been placed. A term of partial confinement shall be tolled during
any period of time spent in total confinement pursuant to a new conviction or
pursuant to sanctions for violation of sentence conditions on a separate felony
conviction.
(2)
A term of ((supervision, including postrelease supervision)) community
custody ordered in a sentence pursuant to this chapter shall be tolled by
any period of time during which the offender has absented himself or herself
from supervision without prior approval of the entity under whose ((supervision))
community custody the offender has been placed.
(3)
Any period of ((supervision)) community custody shall be tolled
during any period of time the offender is in confinement for any reason.
However, if an offender is detained pursuant to RCW 9.94A.207 or 9.94A.195 and
is later found not to have violated a condition or requirement of ((supervision))
community custody, time spent in confinement due to such detention shall
not toll ((to [the])) the period of ((supervision)) community
custody.
(4)
For confinement or ((supervision)) community custody sentences,
the date for the tolling of the sentence shall be established by the entity
responsible for the confinement or ((supervision)) community custody.
Sec.
8. RCW
9.94A.205 and 1996 c 275 s 3 are each amended to read as follows:
(1)
If an ((inmate)) offender violates any condition or requirement
of community custody, the department may transfer the ((inmate)) offender
to a more restrictive confinement status to serve up to the remaining portion
of the sentence, less credit for any period actually spent in community custody
or in detention awaiting disposition of an alleged violation and subject to the
limitations of subsection (2) of this section.
(2)(a)
For a sex offender sentenced to a term of community custody under RCW
9.94A.120(8) who violates any condition of community custody, the department
may impose a sanction of up to sixty days' confinement in a local correctional
facility for each violation. If the department imposes a sanction, the
department shall submit within seventy-two hours a report to the court and the
prosecuting attorney outlining the violation or violations and the sanctions
imposed.
(b)
For a sex offender sentenced to a term of community custody under RCW
9.94A.120(10) who violates any condition of community custody after having
completed his or her maximum term of total confinement, including time served
on community custody in lieu of earned ((early)) release, the department
may impose a sanction of up to sixty days in a local correctional facility for
each violation.
(c)
For an offender sentenced to a term of community custody under RCW 9.94A.120
(5), (7), or (11), or under RCW 9.94A.383, for a crime committed on or after
July 1, 2000, who violates any condition of community custody after having
completed his or her maximum term of total confinement, including time served
on community custody in lieu of earned release, the department may impose a
sanction of up to sixty days in total confinement for each violation. The
department may impose sanctions such as work release, home detention with
electronic monitoring, work crew, community service, inpatient treatment, daily
reporting, curfew, educational or counseling sessions, supervision enhanced
through electronic monitoring, or any other sanctions available in the
community.
(d)
For an offender sentenced to a term of community placement under RCW
9.94A.120(9)(a)(ii) who violates any condition of community placement after
having completed his or her maximum term of total confinement, including time
served on community custody in lieu of earned release, the department may
impose a sanction of up to sixty days in total confinement for each violation.
The department may impose sanctions such as work release, home detention with
electronic monitoring, work crew, community service, inpatient treatment, daily
reporting, curfew, educational or counseling sessions, supervision enhanced
through electronic monitoring, or any other sanctions available in the
community.
(3)
If an ((inmate)) offender is accused of violating any condition
or requirement of community custody, he or she is entitled to a hearing before
the department prior to the imposition of sanctions. The hearing shall be
considered as ((inmate)) offender disciplinary proceedings and
shall not be subject to chapter 34.05 RCW. The department shall develop
hearing procedures and a structure of graduated sanctions.
(4)
The hearing procedures required under subsection (3) of this section shall be
developed by rule and include the following:
(a)
Hearing officers shall report through a chain of command separate from that of
community corrections officers;
(b)
The department shall provide the offender with written notice of the violation,
the evidence relied upon, and the reasons the particular sanction was imposed.
The notice shall include a statement of the rights specified in this
subsection, and the offender's right to file a personal restraint petition
under court rules after the final decision of the department;
(c)
The hearing shall be held unless waived by the offender, and shall be
electronically recorded. For offenders not in total confinement, the hearing
shall be held within fifteen working days, but not less than twenty-four hours,
after notice of the violation. For offenders in total confinement, the hearing
shall be held within five working days, but not less than twenty-four hours,
after notice of the violation;
(d)
The offender shall have the right to: (i) Be present at the hearing; (ii) have
the assistance of a person qualified to assist the offender in the hearing,
appointed by the hearing officer if the offender has a language or
communications barrier; (iii) testify or remain silent; (iv) call witnesses and
present documentary evidence; and (v) question witnesses who appear and
testify; and
(e)
The sanction shall take effect if affirmed by the hearing officer. Within
seven days after the hearing officer's decision, the offender may appeal the
decision to a panel of three reviewing officers designated by the secretary or
by the secretary's designee. The sanction shall be reversed or modified if a
majority of the panel finds that the sanction was not reasonably related to any
of the following: (i) The crime of conviction; (ii) the violation committed;
(iii) the offender's risk of reoffending; or (iv) the safety of the community.
(5)
For purposes of this section, no finding of a violation of conditions may be
based on unconfirmed or unconfirmable allegations.
Sec.
9. RCW
9.94A.207 and 1996 c 275 s 4 are each amended to read as follows:
(1)
The secretary may issue warrants for the arrest of any offender who violates a
condition of community placement or community custody. The arrest
warrants shall authorize any law enforcement or peace officer or community
corrections officer of this state or any other state where such offender may be
located, to arrest the offender and place him or her in total confinement
pending disposition of the alleged violation. The department shall compensate
the local jurisdiction at the office of financial management's adjudicated
rate, in accordance with RCW 70.48.440. A community corrections officer, if he
or she has reasonable cause to believe an offender in community placement or
community custody has violated a condition of community placement or
community custody, may suspend the person's community placement or
community custody status and arrest or cause the arrest and detention in
total confinement of the offender, pending the determination of the secretary
as to whether the violation has occurred. The community corrections officer
shall report to the secretary all facts and circumstances and the reasons for
the action of suspending community placement or community custody
status. A violation of a condition of community placement or community
custody shall be deemed a violation of the sentence for purposes of RCW
9.94A.195. The authority granted to community corrections officers under this
section shall be in addition to that set forth in RCW 9.94A.195.
(2)
Inmates, as defined in RCW 72.09.015, who have been transferred to community
custody and who are detained in a local correctional facility are the financial
responsibility of the department of corrections, except as provided in
subsection (3) of this section. The community custody inmate shall be removed
from the local correctional facility, except as provided in subsection (3) of
this section, not later than eight days, excluding weekends and holidays,
following admittance to the local correctional facility and notification that
the inmate is available for movement to a state correctional institution.
(3)
The department may negotiate with local correctional authorities for an
additional period of detention; however, sex offenders sanctioned for community
custody violations under RCW 9.94A.205(2) to a term of confinement shall remain
in the local correctional facility for the complete term of the sanction. For
confinement sanctions imposed under RCW 9.94A.205(2)(a), the local correctional
facility shall be financially responsible. For confinement sanctions imposed
under RCW 9.94A.205(2)(b), the department of corrections shall be financially
responsible for that portion of the sanction served during the time in which
the sex offender is on community custody in lieu of earned ((early))
release, and the local correctional facility shall be financially responsible
for that portion of the sanction served by the sex offender after the time in
which the sex offender is on community custody in lieu of earned ((early))
release. The department, in consultation with the Washington association of
sheriffs and police chiefs and those counties in which the sheriff does not
operate a correctional facility, shall establish a methodology for determining
the department's local correctional facilities bed utilization rate, for each
county in calendar year 1998, for offenders being held for violations of
conditions of community custody, community placement, or community
supervision. For confinement sanctions imposed under RCW 9.94A.205(2) (c) or
(d), the local correctional facility shall continue to be financially
responsible to the extent of the calendar year 1998 bed utilization rate. If
the department's use of bed space in local correctional facilities of any
county for confinement sanctions imposed on offenders sentenced to a term of
community custody under RCW 9.94A.205(2) (c) or (d) exceeds the 1998 bed
utilization rate for the county, the department shall compensate the county for
the excess use at the per diem rate equal to the lowest rate charged by the
county under its contract with a municipal government during the year in which
the use occurs.
Sec.
10. RCW
9.94A.383 and 1988 c 143 s 23 are each amended to read as follows:
On
all sentences of confinement for one year or less, the court may impose up to
one year of community ((supervision)) custody, subject to conditions
and sanctions as authorized in RCW 9.94A.120(11) (b) and (c). An offender
shall be on community ((supervision)) custody as of the date of
sentencing. However, during the time for which the offender is in total or
partial confinement pursuant to the sentence or a violation of the sentence,
the period of community ((supervision)) custody shall toll.
Sec.
11. RCW
9.94A.440 and 1996 c 93 s 2 are each amended to read as follows:
(1)
Decision not to prosecute.
STANDARD:
A prosecuting attorney may decline to prosecute, even though technically
sufficient evidence to prosecute exists, in situations where prosecution would
serve no public purpose, would defeat the underlying purpose of the law in
question or would result in decreased respect for the law.
GUIDELINE/COMMENTARY:
Examples
The
following are examples of reasons not to prosecute which could satisfy the
standard.
(a)
Contrary to Legislative Intent - It may be proper to decline to charge where
the application of criminal sanctions would be clearly contrary to the intent
of the legislature in enacting the particular statute.
(b)
Antiquated Statute - It may be proper to decline to charge where the statute in
question is antiquated in that:
(i)
It has not been enforced for many years; and
(ii)
Most members of society act as if it were no longer in existence; and
(iii)
It serves no deterrent or protective purpose in today's society; and
(iv)
The statute has not been recently reconsidered by the legislature.
This
reason is not to be construed as the basis for declining cases because the law
in question is unpopular or because it is difficult to enforce.
(c)
De Minimus Violation - It may be proper to decline to charge where the
violation of law is only technical or insubstantial and where no public
interest or deterrent purpose would be served by prosecution.
(d)
Confinement on Other Charges - It may be proper to decline to charge because
the accused has been sentenced on another charge to a lengthy period of
confinement; and
(i)
Conviction of the new offense would not merit any additional direct or
collateral punishment;
(ii)
The new offense is either a misdemeanor or a felony which is not particularly
aggravated; and
(iii)
Conviction of the new offense would not serve any significant deterrent
purpose.
(e)
Pending Conviction on Another Charge - It may be proper to decline to charge
because the accused is facing a pending prosecution in the same or another
county; and
(i)
Conviction of the new offense would not merit any additional direct or
collateral punishment;
(ii)
Conviction in the pending prosecution is imminent;
(iii)
The new offense is either a misdemeanor or a felony which is not particularly
aggravated; and
(iv)
Conviction of the new offense would not serve any significant deterrent
purpose.
(f)
High Disproportionate Cost of Prosecution - It may be proper to decline to
charge where the cost of locating or transporting, or the burden on,
prosecution witnesses is highly disproportionate to the importance of
prosecuting the offense in question. This reason should be limited to minor
cases and should not be relied upon in serious cases.
(g)
Improper Motives of Complainant - It may be proper to decline charges because
the motives of the complainant are improper and prosecution would serve no
public purpose, would defeat the underlying purpose of the law in question or
would result in decreased respect for the law.
(h)
Immunity - It may be proper to decline to charge where immunity is to be given
to an accused in order to prosecute another where the accused's information or
testimony will reasonably lead to the conviction of others who are responsible
for more serious criminal conduct or who represent a greater danger to the
public interest.
(i)
Victim Request - It may be proper to decline to charge because the victim
requests that no criminal charges be filed and the case involves the following
crimes or situations:
(i)
Assault cases where the victim has suffered little or no injury;
(ii)
Crimes against property, not involving violence, where no major loss was
suffered;
(iii)
Where doing so would not jeopardize the safety of society.
Care
should be taken to insure that the victim's request is freely made and is not
the product of threats or pressure by the accused.
The
presence of these factors may also justify the decision to dismiss a
prosecution which has been commenced.
Notification
The
prosecutor is encouraged to notify the victim, when practical, and the law
enforcement personnel, of the decision not to prosecute.
(2)
Decision to prosecute.
(a)
STANDARD:
Crimes
against persons will be filed if sufficient admissible evidence exists, which,
when considered with the most plausible, reasonably foreseeable defense that
could be raised under the evidence, would justify conviction by a reasonable
and objective fact-finder. With regard to offenses prohibited by RCW
9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086,
9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or
diversions intended to place the accused in a program of treatment or
counseling, so that treatment, if determined to be beneficial, can be provided
pursuant to RCW 9.94A.120(8).
Crimes
against property/other crimes will be filed if the admissible evidence is of
such convincing force as to make it probable that a reasonable and objective
fact-finder would convict after hearing all the admissible evidence and the
most plausible defense that could be raised.
See
table below for the crimes within these categories.
CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS
CRIMES AGAINST PERSONS
Aggravated Murder
1st
Degree Murder
2nd
Degree Murder
1st
Degree Kidnaping
1st
Degree Assault
1st
Degree Assault of a Child
1st
Degree Rape
1st
Degree Robbery
1st
Degree Rape of a Child
1st
Degree Arson
2nd
Degree Kidnaping
2nd
Degree Assault
2nd
Degree Assault of a Child
2nd
Degree Rape
2nd
Degree Robbery
1st
Degree Burglary
1st
Degree Manslaughter
2nd
Degree Manslaughter
1st
Degree Extortion
Indecent
Liberties
Incest
2nd
Degree Rape of a Child
Vehicular
Homicide
Vehicular
Assault
3rd
Degree Rape
3rd
Degree Rape of a Child
1st
Degree Child Molestation
2nd
Degree Child Molestation
3rd
Degree Child Molestation
2nd
Degree Extortion
1st
Degree Promoting Prostitution
Intimidating
a Juror
Communication
with a Minor
Intimidating
a Witness
Intimidating
a Public Servant
Bomb
Threat (if against person)
3rd
Degree Assault
3rd
Degree Assault of a Child
Unlawful
Imprisonment
Promoting
a Suicide Attempt
Riot
(if against person)
Stalking
Custodial
Assault
No-Contact Order-Domestic Violence Pretrial (RCW 10.99.040(4)
(b) and (c))
No-Contact Order-Domestic Violence Sentence (RCW 10.99.050(2))
Protection
Order-Domestic Violence Civil (RCW 26.50.110 (4) and (5))
CRIMES AGAINST PROPERTY/OTHER CRIMES
2nd Degree Arson
1st
Degree Escape
2nd
Degree Burglary
1st
Degree Theft
1st
Degree Perjury
1st
Degree Introducing Contraband
1st
Degree Possession of Stolen Property
Bribery
Bribing
a Witness
Bribe
received by a Witness
Bomb
Threat (if against property)
1st
Degree Malicious Mischief
2nd
Degree Theft
2nd
Degree Escape
2nd
Degree Introducing Contraband
2nd
Degree Possession of Stolen Property
2nd
Degree Malicious Mischief
1st
Degree Reckless Burning
Taking
a Motor Vehicle without Authorization
Forgery
2nd
Degree Perjury
2nd
Degree Promoting Prostitution
Tampering
with a Witness
Trading
in Public Office
Trading
in Special Influence
Receiving/Granting
Unlawful Compensation
Bigamy
Eluding
a Pursuing Police Vehicle
Willful
Failure to Return from Furlough
Escape
from Community Custody
Riot
(if against property)
Thefts
of Livestock
ALL
OTHER UNCLASSIFIED FELONIES
Selection
of Charges/Degree of Charge
(((1)))
(i) The prosecutor should file charges which adequately describe the
nature of defendant's conduct. Other offenses may be charged only if they are
necessary to ensure that the charges:
(((a)))
(A) Will significantly enhance the strength of the state's case at
trial; or
(((b)))
(B) Will result in restitution to all victims.
(((2))) (ii) The prosecutor should not overcharge to
obtain a guilty plea. Overcharging includes:
(((a))) (A) Charging a higher degree;
(((b)))
(B) Charging additional counts.
This
standard is intended to direct prosecutors to charge those crimes which
demonstrate the nature and seriousness of a defendant's criminal conduct, but
to decline to charge crimes which are not necessary to such an indication.
Crimes which do not merge as a matter of law, but which arise from the same
course of conduct, do not all have to be charged.
(b) GUIDELINES/COMMENTARY:
(i) Police Investigation
A
prosecuting attorney is dependent upon law enforcement agencies to conduct the
necessary factual investigation which must precede the decision to prosecute.
The prosecuting attorney shall ensure that a thorough factual investigation has
been conducted before a decision to prosecute is made. In ordinary
circumstances the investigation should include the following:
(((1)))
(A) The interviewing of all material witnesses, together with the
obtaining of written statements whenever possible;
(((2)))
(B) The completion of necessary laboratory tests; and
(((3)))
(C) The obtaining, in accordance with constitutional requirements, of
the suspect's version of the events.
If
the initial investigation is incomplete, a prosecuting attorney should insist
upon further investigation before a decision to prosecute is made, and specify
what the investigation needs to include.
(ii)
Exceptions
In
certain situations, a prosecuting attorney may authorize filing of a criminal
complaint before the investigation is complete if:
(((1)))
(A) Probable cause exists to believe the suspect is guilty; and
(((2)))
(B) The suspect presents a danger to the community or is likely to flee
if not apprehended; or
(((3)))
(C) The arrest of the suspect is necessary to complete the investigation
of the crime.
In
the event that the exception to the standard is applied, the prosecuting
attorney shall obtain a commitment from the law enforcement agency involved to
complete the investigation in a timely manner. If the subsequent investigation
does not produce sufficient evidence to meet the normal charging standard, the
complaint should be dismissed.
(iii)
Investigation Techniques
The
prosecutor should be fully advised of the investigatory techniques that were
used in the case investigation including:
(((1)))
(A) Polygraph testing;
(((2)))
(B) Hypnosis;
(((3)))
(C) Electronic surveillance;
(((4)))
(D) Use of informants.
(iv)
Pre-Filing Discussions with Defendant
Discussions
with the defendant or his/her representative regarding the selection or
disposition of charges may occur prior to the filing of charges, and potential
agreements can be reached.
(v)
Pre-Filing Discussions with Victim(s)
Discussions
with the victim(s) or victims' representatives regarding the selection or
disposition of charges may occur before the filing of charges. The discussions
may be considered by the prosecutor in charging and disposition decisions, and
should be considered before reaching any agreement with the defendant regarding
these decisions.
NEW
SECTION. Sec. 12. A
new section is added to chapter 72.09 RCW to read as follows:
Except
as specifically prohibited by other law, and for purposes of determining,
modifying, or monitoring compliance with conditions of community custody,
community placement, or community supervision as authorized under RCW 9.94A.120
and 9.94A.383, the department:
(1)
Shall have access to all relevant records and information in the possession of
public agencies relating to offenders, including police reports, prosecutors'
statements of probable cause, complete criminal history information,
psychological evaluations and psychiatric hospital reports, sex offender
treatment program reports, and juvenile records; and
(2)
May require periodic reports from providers of treatment or other services
required by the court or the department, including progress reports,
evaluations and assessments, and reports of violations of conditions imposed by
the court or the department.
NEW
SECTION. Sec. 13. A
new section is added to chapter 72.09 RCW to read as follows:
To
the extent practicable, the department shall deploy community corrections staff
on the basis of geographic areas in which offenders under the department's
jurisdiction are located, and shall establish a systematic means of assessing
risk to the safety of those communities.
NEW
SECTION. Sec. 14. The
secretary of corrections may adopt rules to implement sections 1 through 13 of
this act.
Sec.
15. RCW
9A.44.135 and 1998 c 220 s 2 are each amended to read as follows:
(1)
When an offender registers with the county sheriff pursuant to RCW 9A.44.130,
the county sheriff shall notify the police chief or town marshal of the
jurisdiction in which the offender has registered to live. If the offender
registers to live in an unincorporated area of the county, the sheriff shall
make reasonable attempts to verify that the offender is residing at the
registered address. If the offender registers to live in an incorporated
city or town, the police chief or town marshal shall make reasonable attempts
to verify that the offender is residing at the registered address.
Reasonable attempts at verifying an address shall include at a minimum:
(a)
Each year the ((county sheriff)) chief law enforcement officer of the
jurisdiction where the offender is registered to live shall send by
certified mail, with return receipt requested, a nonforwardable verification
form to the offender at the offender's last registered address.
(b)
The offender must sign the verification form, state on the form whether he or
she still resides at the last registered address, and return the form to the ((county
sheriff)) chief law enforcement officer of the jurisdiction where the
offender is registered to live within ten days after receipt of the form.
(2)
The ((sheriff)) chief law enforcement officer of the jurisdiction
where the offender has registered to live shall make reasonable attempts to
locate any sex offender who fails to return the verification form or who cannot
be located at the registered address. If the offender fails to return the
verification form or the offender is not at the last registered address, the ((county
sheriff)) chief law enforcement officer of the jurisdiction where the
offender has registered to live shall promptly forward this information to
the county sheriff and to the Washington state patrol for inclusion in
the central registry of sex offenders.
(3)
When an offender notifies the county sheriff of a change to his or her
residence address pursuant to RCW 9A.44.130, and the new address is in a
different law enforcement jurisdiction, the county sheriff shall notify the
police chief or town marshal of the jurisdiction from which the offender has
moved.
NEW
SECTION. Sec. 16. A
new section is added to chapter 72.09 RCW to read as follows:
(1)
The Washington state institute for public policy shall conduct a study of the
effect of the use of community custody under this act. The study shall include
the effect of this act on recidivism and other outcomes. In its study the
institute shall consider:
(a)
Recidivism, according to the definition adopted by the institute pursuant to section
59, chapter 338, Laws of 1997;
(b)
The number and seriousness level of violations of conditions;
(c)
The application of the graduated sanctions by the department;
(d)
Unauthorized absences from supervision;
(e)
Payment of legal financial obligations;
(f)
Unlawful use of controlled substances;
(g)
Use of alcohol when abstention or treatment for alcoholism is a condition of
supervision;
(h)
Effects on the number of offenders who are employed or participate in
vocational rehabilitation;
(i)
Participation in vocational and education programs; and
(j)
Impact on the receipt of public assistance.
(2)
By January 1, 2000, the institute shall report to the legislature on the design
for the study. By January 1st of each year thereafter, the institute shall
report to the legislature on the progress and findings of the study and make
recommendations based on its findings. By January 1, 2010, the institute shall
provide to the legislature a final report on the findings of the study.
(3)
Subsections (1) and (2) of this section expire December 31, 2010.
NEW
SECTION. Sec. 17.
Nothing in this act shall be construed to create an immunity or defense from
liability for personal injury or wrongful death based solely on availability of
funds.
NEW
SECTION. Sec. 18. This
act may be known and cited as the offender accountability act.
NEW
SECTION. Sec. 19.
Section 10 of this act takes effect July 1, 2000, and applies only to offenses
committed on or after July 1, 2000.
NEW
SECTION. Sec. 20. 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.
