CERTIFICATION OF ENROLLMENT

 

                        SENATE BILL 6223

 

 

                    Chapter 28, Laws of 2000

 

 

                        56th Legislature

                      2000 Regular Session

 

 

SENTENCING REFORM ACT--REORGANIZATION--TECHNICAL CORRECTIONS

 

 

 

EFFECTIVE DATE:  6/8/00 - Except sections 1 through 42, which become effective 7/1/01.

Passed by the Senate February 12, 2000

  YEAS 44   NAYS 1

 

 

               BRAD OWEN

President of the Senate

 

Passed by the House February 29, 2000

  YEAS 97   NAYS 0

             CERTIFICATE

 

I, Tony M. Cook, Secretary of the Senate of the State of Washington, do hereby certify that the attached is  SENATE BILL 6223 as passed by the Senate and the House of Representatives on the dates hereon set forth.

 

 

             CLYDE BALLARD

Speaker of the

      House of Representatives

            TONY M. COOK

                            Secretary

 

 

 

              FRANK CHOPP

Speaker of the

      House of Representatives

 

 

Approved March 17, 2000 Place Style On Codes above, and Style Off Codes below.    

                                FILED          

 

 

           March 17, 2000 - 2:44 p.m.

 

 

 

              GARY LOCKE

Governor of the State of Washington

                 Secretary of State

                 State of Washington


          _______________________________________________

 

                         SENATE BILL 6223

          _______________________________________________

 

             Passed Legislature - 2000 Regular Session

 

State of Washington      56th Legislature     2000 Regular Session

 

By Senators Hargrove, Long, Costa and Kohl‑Welles; by request of Sentencing Guidelines Commission

 

Read first time 01/11/2000.  Referred to Committee on Judiciary.

Reorganizing sentencing provisions.   


    AN ACT Relating to reorganization of, and technical, clarifying, nonsubstantive amendments to, community supervision and sentencing provisions; amending RCW 9.94A.190, 9.94A.390, 9.94A.130, 9.94A.210, 9.94A.370, 9.94A.383, 9.94A.400, 9.94A.410, 9.94A.137, 9.94A.135, 9.94A.180, 9.94A.185, 9.94A.145, 18.155.010, 18.155.020, 18.155.030, 46.61.524, and 9.94A.395; reenacting and amending RCW 9.94A.030, 9.94A.120, 9.94A.310, 9.94A.360, 9.94A.440, 9.94A.150, 9.94A.140, 9.94A.142, and 9.94A.040; adding new sections to chapter 9.94A RCW; creating new sections; providing an effective date; and providing an expiration date.

 

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

 

                              PART I

                        General Provisions

 

    NEW SECTION.  Sec. 1.  The sentencing reform act has been amended many times since its enactment in 1981.  While each amendment promoted a valid public purpose, some sections of the act have become unduly lengthy and repetitive.  The legislature finds that it is appropriate to adopt clarifying amendments to make the act easier to use and understand.

    The legislature does not intend this act to make, and no provision of this act shall be construed as making, a substantive change in the sentencing reform act.

    The legislature does intend to clarify that persistent offenders are not eligible for extraordinary medical placement.

 

    Sec. 2.  RCW 9.94A.030 and 1999 c 352 s 8, 1999 c 197 s 1, and 1999 c 196 s 2 are each reenacted and amended to read as follows:

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

    (1) "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 offender's sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.120 (((5), (6), (7), (8), (10), or (11),)) (2)(b), sections 18 through 25 of this act, or RCW 9.94A.383, served in the community subject to controls placed on the offender's movement and activities by the department ((of corrections)).  For offenders placed on community custody for crimes committed on or after July 1, 2000, the department shall assess the offender's risk of reoffense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety.

    (5) "Community custody range" means the minimum and maximum period of community custody included as part of a sentence under ((RCW 9.94A.120(11))) section 25 of this act, 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 release.  Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

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

    (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).))  Where the court finds that any offender has a chemical dependency that has contributed to his or her offense, the conditions of supervision may, subject to available resources, include treatment.  For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.

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

    (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.

    (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.

    (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.

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

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

    (((15))) (14) "Day reporting" means a program of enhanced supervision designed to monitor the ((defendant's)) offender's daily activities and compliance with sentence conditions, and in which the ((defendant)) offender is required to report daily to a specific location designated by the department or the sentencing ((judge)) court.

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

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

    (((18))) (17) "Disposable earnings" means that part of the earnings of an ((individual)) offender 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) "Drug offender sentencing alternative" is a sentencing option available to persons convicted of a felony offense other than a violent offense or a sex offense and who are eligible for the option under section 19 of this act.

    (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.

    (20) "Earned release" means earned release from confinement as provided in RCW 9.94A.150.

    (((20))) (21) "Escape" means:

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

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

    (((21))) (22) "Felony traffic offense" means:

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

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

    (((22))) (23) "Fine((s))" means ((the requirement that the offender pay)) a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specific period of time ((to the court)).

    (((23))) (24) "First-time offender" means any person who ((is convicted of a felony (a) not classified as a violent offense or a sex offense under this chapter, or (b) that is not the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or flunitrazepam classified in Schedule IV, nor the manufacture, delivery, or possession with intent to deliver methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2), nor the selling for profit of any controlled substance or counterfeit substance classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana, who previously has never been convicted of a felony in this state, federal court, or another state, and who has never participated in a program of deferred prosecution for a felony offense)) has no prior convictions for a felony and is eligible for the first-time offender waiver under section 18 of this act.

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

    (((25))) (26) "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 RCW 38.52.430.

    (27) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies((, as now existing or hereafter amended)):

    (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;

    (b) Assault in the second degree;

    (c) Assault of a child in the second degree;

    (d) Child molestation in the second degree;

    (e) Controlled substance homicide;

    (f) Extortion in the first degree;

    (g) Incest when committed against a child under age fourteen;

    (h) Indecent liberties;

    (i) Kidnapping in the second degree;

    (j) Leading organized crime;

    (k) Manslaughter in the first degree;

    (l) Manslaughter in the second degree;

    (m) Promoting prostitution in the first degree;

    (n) Rape in the third degree;

    (o) Robbery in the second degree;

    (p) Sexual exploitation;

    (q) Vehicular assault;

    (r) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

    (s) Any other class B felony offense with a finding of sexual motivation((, as "sexual motivation" is defined under this section));

    (t) Any other felony with a deadly weapon verdict under RCW 9.94A.125;

    (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection;

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

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

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

    (((27))) (29) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110.  Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.

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

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

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

    (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or

    (b)(i) Has been convicted of:  (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree, with a finding of sexual motivation; or (C) an attempt to commit any crime listed in this subsection (((29))) (31)(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 (29)))(b)(i) of this subsection 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 (29)))(b)(i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense.

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

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

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

    (((33))) (35) "Serious traffic offense" means:

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

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

    (((34))) (36) "Serious violent offense" is a subcategory of violent offense and means:

    (a)(i) Murder in the first degree((,));

    (ii) Homicide by abuse((,));

    (iii) Murder in the second degree((,));

    (iv) Manslaughter in the first degree((,));

    (v) Assault in the first degree((,));

    (vi) Kidnapping in the first degree((, or));

    (vii) Rape in the first degree((,));

    (viii) Assault of a child in the first degree((,)); or

    (ix) An attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or

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

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

    (36))) (37) "Sex offense" means:

    (a) A felony that is a violation of:

    (i) Chapter 9A.44 RCW((,)) other than RCW 9A.44.130(((10), or)) (11);

    (ii) RCW 9A.64.020 ((or));

    (iii) RCW 9.68A.090; or

    (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

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

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

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

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

    (((38))) (39) "Standard sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.

    (40) "Statutory maximum sentence" means the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime.

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

    (((39))) (42) "Transition training" means written and verbal instructions and assistance provided by the department to the offender during the two weeks prior to the offender's successful completion of the work ethic camp program.  The transition training shall include instructions in the offender's requirements and obligations during the offender's period of community custody.

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

    (((41))) (44) "Violent offense" means:

    (a) Any of the following felonies((, as now existing or hereafter amended)):

    (i) Any felony defined under any law as a class A felony or an attempt to commit a class A felony((,));

    (ii) Criminal solicitation of or criminal conspiracy to commit a class A felony((,));

    (iii) Manslaughter in the first degree((,));

    (iv) Manslaughter in the second degree((,));

    (v) Indecent liberties if committed by forcible compulsion((,));

    (vi) Kidnapping in the second degree((,));

    (vii) Arson in the second degree((,));

    (viii) Assault in the second degree((,));

    (ix) Assault of a child in the second degree((,));

    (x) Extortion in the first degree((,));

    (xi) Robbery in the second degree((,));

    (xii) Drive-by shooting((,));

    (xiii) Vehicular assault((,)); and

    (xiv) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

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

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

    (((42))) (45) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community ((of not less than thirty-five hours per week)) that complies with RCW 9.94A.135.  ((The civic improvement tasks shall have minimal negative impact on existing private industries or the labor force in the county where the service or labor is performed.  The civic improvement tasks shall not affect employment opportunities for people with developmental disabilities contracted through sheltered workshops as defined in RCW 82.04.385.  Only those offenders sentenced to a facility operated or utilized under contract by a county or the state, or sanctioned under RCW 9.94A.205, are eligible to participate on a work crew.  Offenders sentenced for a sex offense as defined in subsection (36) of this section are not eligible for the work crew program.

    (43))) (46) "Work ethic camp" means an alternative incarceration program as provided in RCW 9.94A.137 designed to reduce recidivism and lower the cost of corrections by requiring offenders to complete a comprehensive array of real-world job and vocational experiences, character-building work ethics training, life management skills development, substance abuse rehabilitation, counseling, literacy training, and basic adult education.

    (((44))) (47) "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.))

 

    NEW SECTION.  Sec. 3.  For purposes of judicial and criminal justice forms promulgated under this chapter and related to corrections and sentencing, the terms "offender" and "defendant" may be used interchangeably without substantive effect.

    This section expires July 1, 2005.

 

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

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

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

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

    (4) ((For)) Notwithstanding any other provision of this section, a sentence((s)) imposed pursuant to ((RCW 9.94A.120(6))) section 19 of this act which ((have)) has a standard sentence range of over one year, ((notwithstanding any other provision of this section all such sentences)) regardless of length, shall be served in a facility or institution operated, or utilized under contract, by the state.

 

                              PART II

                     Sentencing Determinations

 

    Sec. 5.  RCW 9.94A.120 and 1999 c 324 s 2, 1999 c 197 s 4, 1999 c 196 s 5, and 1999 c 147 s 3 are each reenacted and amended to read as follows:

    (1) When a person is convicted of a felony, the court shall impose punishment as provided in this ((section)) chapter.

    (((1) Except as authorized in subsections (2), (4), (5), (6), and (8) of this section,)) (2)(a) 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 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:  (a) In the case of an offender in need of emergency medical treatment; (b) for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree; or (c) for an extraordinary medical placement when authorized under RCW 9.94A.150(4).

    (5)(a) In sentencing a first-time offender the court may waive the imposition of a sentence within the sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses.  The sentence may also include a term of community supervision or community custody as specified in (b) of this subsection, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b) If the standard range is greater than one year and the sentencing judge determines that the offender is eligible for this option and that the offender and the community will benefit from the use of the special drug offender sentencing alternative, the judge may waive imposition of a sentence within the standard range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard range.  During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender.  The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.

    The court shall also impose:

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

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

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

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

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

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

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

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

    (E) Perform community service work;

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

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

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

    (d) The department shall determine the rules for calculating the value of a day fine based on the offender's income and reasonable obligations which the offender has for the support of the offender and any dependents.  These rules shall be developed in consultation with the administrator for the courts, the office of financial management, and the commission.

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

    (7))) as provided in the following sections and as applicable in the case:

    (i) Unless another term of confinement applies, the court shall impose a sentence within the standard sentence range established in RCW 9.94A.310;

    (ii) Sections 22 and 23 of this act, relating to community placement;

    (iii) Sections 24 and 25 of this act, relating to community custody;

    (iv) RCW 9.94A.383, relating to community custody for offenders whose term of confinement is one year or less;

    (v) Section 6 of this act, relating to persistent offenders;

    (vi) Section 7 of this act, relating to mandatory minimum terms;

    (vii) Section 18 of this act, relating to the first-time offender waiver;

    (viii) Section 19 of this act, relating to the drug offender sentencing alternative;

    (ix) Section 20 of this act, relating to the special sex offender sentencing alternative;

    (x) RCW 9.94A.390, relating to exceptional sentences;

    (xi) RCW 9.94A.400, relating to consecutive and concurrent sentences.

    (b) If a standard sentence range has not been established for the ((defendant's)) offender'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))) section 24 (2) and (3) of this ((section)) act; 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 as provided in RCW 9.94A.390.

    (((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 (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 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 July 25, 1999, the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement beginning either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences an offender under this subsection to the statutory maximum period of confinement then the community placement portion of the sentence shall consist entirely of such community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).  Any period of community custody actually served shall be credited against the community placement portion of the sentence.

    (ii) Except for persons sentenced under (b) of this subsection or subsection (10)(a) of this section, when a court sentences a person to a term of total confinement to the custody of the department of corrections for a violent offense, any crime against a person under RCW 9.94A.440(2), or any felony offense under chapter 69.50 or 69.52 RCW not sentenced under subsection (6) of this section, committed on or after July 25, 1999, but before July 1, 2000, the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement beginning either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences the offender under this subsection (9)(a)(ii) to the statutory maximum period of confinement, then the community placement portion of the sentence shall consist entirely of such community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).  Any period of community custody actually served shall be credited against the community placement portion of the sentence.

    (b) When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, or a serious violent offense, vehicular homicide, or vehicular assault, committed on or after July 1, 1990, but before July 1, 2000, the court shall in addition to other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.  The community placement shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences an offender under this subsection to the statutory maximum period of confinement then the community placement portion of the sentence shall consist entirely of the community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).  Any period of community custody actually served shall be credited against the community placement portion of the sentence.  Unless a condition is waived by the court, the terms of community placement for offenders sentenced pursuant to this section shall include the following conditions:

    (i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;

    (ii) The offender shall work at department of corrections-approved education, employment, and/or community service;

    (iii) The offender shall not possess or consume controlled substances except pursuant to lawfully issued prescriptions;

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

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

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

    (c) As a part of any sentence imposed under (a) or (b) of this subsection, the court may also order any of the following special conditions:

    (i) The offender shall remain within, or outside of, a specified geographical boundary;

    (ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;

    (iii) The offender shall participate in crime-related treatment or counseling services;

    (iv) The offender shall not consume alcohol;

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

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

    (d) Prior to transfer to, or during, community placement, any conditions of community placement may be removed or modified so as not to be more restrictive by the sentencing court, upon recommendation of the department of corrections.

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

    (b) Unless a condition is waived by the court, the terms of community custody shall be the same as those provided for in subsection (9)(b) of this section and may include those provided for in subsection (9)(c) of this section.  As part of any sentence that includes a term of community custody imposed under this subsection, the court shall also require the offender to comply with any conditions imposed by the department of corrections under subsection (15) 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))) (3) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days.  A sentence requiring more than thirty days of confinement shall be served on consecutive days.  Local jail administrators may schedule court-ordered intermittent sentences as space permits.

    (((13))) (4) 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)) it shall be imposed as provided in RCW 9.94A.140, 9.94A.142, and 9.94A.145.  ((If jurisdiction under the criminal judgment is extended, the department is not responsible for supervision of the offender during the subsequent period.  Independent of the department, the party or entity to whom the legal financial obligation is owed shall have the authority to utilize any other remedies available to the party or entity to collect the legal financial obligation.  Nothing in this section makes the department, the state, or any of its employees, agents, or other persons acting on their behalf liable under any circumstances for the payment of these legal financial obligations.  If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order.

    (14))) (5) Except as provided under RCW 9.94A.140(((1))) (4) and 9.94A.142(((1))) (4), a court may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.

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

    (a) The instructions shall include, at a minimum, reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, notifying the community corrections officer of any change in the offender's address or employment, and paying the supervision fee assessment.

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

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

    The department may require offenders to pay for special services rendered on or after July 25, 1993, including electronic monitoring, day reporting, and telephone reporting, dependent upon the offender's ability to pay.  The department may pay for these services for offenders who are not able to pay.

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

    (17))) (6) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

    (((18) A departure from the standards in RCW 9.94A.400 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210 (2) through (6).

    (19))) (7) 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)) as provided in RCW 9.94A.140 and 9.94A.142.

    (((20))) (8) 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)) crime-related prohibitions and affirmative conditions as provided in this chapter.

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

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

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

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

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

 

    NEW SECTION.  Sec. 6.  PERSISTENT OFFENDERS.  Notwithstanding the statutory maximum sentence or any other provision of this chapter, a persistent offender 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.  In addition, no offender subject to this section may be eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of release as defined under RCW 9.94A.150 (1), (2), (3), (4), (6), (8), or (9), or any other form of authorized leave from a correctional facility while not in the direct custody of a corrections officer or officers, except:  (1) In the case of an offender in need of emergency medical treatment; or (2) 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.

 

    NEW SECTION.  Sec. 7.  MANDATORY MINIMUM TERMS.  (1) The following minimum terms of total confinement are mandatory and shall not be varied or modified under RCW 9.94A.390:

    (a) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years.

    (b) An offender convicted of the crime of assault in the first degree or assault of a child in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.

    (c) An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than five years.

    (2) During such minimum terms of total confinement, no offender subject to the provisions of this section is eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of early release authorized under RCW 9.94A.150, or any other form of authorized leave of absence from the correctional facility while not in the direct custody of a corrections officer.  The provisions of this subsection shall not apply:  (a) In the case of an offender in need of emergency medical treatment; (b) for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree; or (c) for an extraordinary medical placement when authorized under RCW 9.94A.150(4).

 

    Sec. 8.  RCW 9.94A.390 and 1999 c 330 s 1 are each amended to read as follows:

    The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.  Whenever a sentence outside the standard sentence 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 sentence range shall be a determinate sentence.

    If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed ((in accordance with RCW 9.94A.120(2))), the sentence is subject to review only as provided for in RCW 9.94A.210(4).

    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 this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.210 (2) through (6).

    The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence.  The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.

    (1) Mitigating Circumstances

    (a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

    (b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.

    (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

    (d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

    (e) The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired ((()).  Voluntary use of drugs or alcohol is excluded(())).

    (f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.

    (g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

    (h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

    (2) Aggravating Circumstances

    (a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.

    (b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.

    (c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant.

    (d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

    (i) The current offense involved multiple victims or multiple incidents per victim;

    (ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;

    (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or

    (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

    (e) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition:  The presence of ANY of the following may identify a current offense as a major VUCSA:

    (i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so;

    (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;

    (iii) The current offense involved the manufacture of controlled substances for use by other parties;

    (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;

    (v) The current offense involved a high degree of sophistication or planning ((or)), occurred over a lengthy period of time, or involved a broad geographic area of disbursement; or

    (vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional).

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

    (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time.

    (h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:

    (i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;

    (ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or

    (iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.

    (i) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

    (j) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

    (k) The offense resulted in the pregnancy of a child victim of rape.

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

 

    Sec. 9.  RCW 9.94A.130 and 1999 c 143 s 12 are each amended to read as follows:

    The power to defer or suspend the imposition or execution of sentence is hereby abolished in respect to sentences prescribed for felonies committed after June 30, 1984, except for offenders sentenced under ((RCW 9.94A.120(8)(a))) section 20 of this act, the special ((sexual)) sex offender sentencing alternative, whose sentence may be suspended.

 

    Sec. 10.  RCW 9.94A.210 and 1989 c 214 s 1 are each amended to read as follows:

    (1) A sentence within the standard sentence range for the offense shall not be appealed.  For purposes of this section, a sentence imposed on a first-time offender under ((RCW 9.94A.120(5))) section 18 of this act shall also be deemed to be within the standard sentence range for the offense and shall not be appealed.

    (2) A sentence outside the standard sentence range for the offense is subject to appeal by the defendant or the state.  The appeal shall be to the court of appeals in accordance with rules adopted by the supreme court.

    (3) Pending review of the sentence, the sentencing court or the court of appeals may order the defendant confined or placed on conditional release, including bond.

    (4) To reverse a sentence which is outside the standard sentence range, the reviewing court must find:  (a) Either that the reasons supplied by the sentencing ((judge)) court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

    (5) A review under this section shall be made solely upon the record that was before the sentencing court.  Written briefs shall not be required and the review and decision shall be made in an expedited manner according to rules adopted by the supreme court.

    (6) The court of appeals shall issue a written opinion in support of its decision whenever the judgment of the sentencing court is reversed and may issue written opinions in any other case where the court believes that a written opinion would provide guidance to sentencing ((judges)) courts and others in implementing this chapter and in developing a common law of sentencing within the state.

    (7) The department may petition for a review of a sentence committing an offender to the custody or jurisdiction of the department.  The review shall be limited to errors of law.  Such petition shall be filed with the court of appeals no later than ninety days after the department has actual knowledge of terms of the sentence.  The petition shall include a certification by the department that all reasonable efforts to resolve the dispute at the superior court level have been exhausted.

 

    Sec. 11.  RCW 9.94A.310 and 1999 c 352 s 2 and 1999 c 324 s 3 are each reenacted and amended to read as follows:

 

    (1)                       TABLE 1

 

                          Sentencing Grid

 

SERIOUSNESS

LEVEL                       OFFENDER SCORE

                                                         9 or

      0     1     2     3     4     5     6     7     8     more

                                                                 

XVI   Life Sentence without Parole/Death Penalty

                                                                 

XV    23y4m 24y4m 25y4m 26y4m 27y4m 28y4m 30y4m 32y10m     36y  40y

      240-  250-  261-  271-  281-  291-  312-  338-  370-  411-

      320   333   347   361   374   388   416   450   493   548

                                                                 

XIV   14y4m 15y4m 16y2m 17y   17y11m     18y9m 20y5m 22y2m 25y7m 29y

      123-  134-  144-  154-  165-  175-  195-  216-  257-  298-

      220   234   244   254   265   275   295   316   357   397

                                                                 

XIII  12y   13y   14y   15y   16y   17y   19y   21y   25y   29y

      123-  134-  144-  154-  165-  175-  195-  216-  257-  298-

      164   178   192   205   219   233   260   288   342   397

                                                                 

XII   9y    9y11m 10y9m 11y8m 12y6m 13y5m 15y9m 17y3m 20y3m 23y3m

      93-   102-  111-  120-  129-  138-  162-  178-  209-  240-

      123   136   147   160   171   184   216   236   277   318

                                                                 

XI    7y6m  8y4m  9y2m  9y11m 10y9m 11y7m 14y2m 15y5m 17y11m     20y5m

      78-   86-   95-   102-  111-  120-  146-  159-  185-  210-

      102   114   125   136   147   158   194   211   245   280

                                                                 

X     5y    5y6m  6y    6y6m  7y    7y6m  9y6m  10y6m 12y6m 14y6m

      51-   57-   62-   67-   72-   77-   98-   108-  129-  149-

      68    75    82    89    96    102   130   144   171   198

                                                                 

IX    3y    3y6m  4y    4y6m  5y    5y6m  7y6m  8y6m  10y6m 12y6m

      31-   36-   41-   46-   51-   57-   77-   87-   108-  129-

      41    48    54    61    68    75    102   116   144   171

                                                                 

VIII  2y    2y6m  3y    3y6m  4y    4y6m  6y6m  7y6m  8y6m  10y6m

      21-   26-   31-   36-   41-   46-   67-   77-   87-   108-

      27    34    41    48    54    61    89    102   116   144

                                                                 

VII   18m   2y    2y6m  3y    3y6m  4y    5y6m  6y6m  7y6m  8y6m

      15-   21-   26-   31-   36-   41-   57-   67-   77-   87-

      20    27    34    41    48    54    75    89    102   116

                                                                 

VI    13m   18m   2y    2y6m  3y    3y6m  4y6m  5y6m  6y6m  7y6m

      12+-  15-   21-   26-   31-   36-   46-   57-   67-   77-

      14    20    27    34    41    48    61    75    89    102

                                                                 

V     9m    13m   15m   18m   2y2m  3y2m  4y    5y    6y    7y

      6-    12+-  13-   15-   22-   33-   41-   51-   62-   72-

      12    14    17    20    29    43    54    68    82    96

                                                                 

IV    6m    9m    13m   15m   18m   2y2m  3y2m  4y2m  5y2m  6y2m

      3-    6-    12+-  13-   15-   22-   33-   43-   53-   63-

      9     12    14    17    20    29    43    57    70    84

                                                                 

III   2m    5m    8m    11m   14m   20m   2y2m  3y2m  4y2m  5y

      1-    3-    4-    9-    12+-  17-   22-   33-   43-   51-

      3     8     12    12    16    22    29    43    57    68

                                                                 

II         4m    6m    8m    13m   16m   20m   2y2m  3y2m  4y2m

      0-90  2-    3-    4-    12+-  14-   17-   22-   33-   43-

      Days  6     9     12    14    18    22    29    43    57

                                                                 

I                3m    4m    5m    8m    13m   16m   20m   2y2m

      0-60  0-90  2-    2-    3-    4-    12+-  14-   17-   22-

      Days  Days  5     6     8     12    14    18    22    29

                                                                 

 

((NOTE:))  Numbers in the first horizontal row of each seriousness category represent sentencing midpoints in years(y) and months(m).  Numbers in the second and third rows represent ((presumptive sentencing)) standard sentence ranges in months, or in days if so designated.  12+ equals one year and one day.

    (2) For persons convicted of the anticipatory offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the ((presumptive)) standard sentence range is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the completed crime, and multiplying the range by 75 percent.

    (3) The following additional times shall be added to the ((presumptive)) standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements based on the classification of the completed felony crime.  If the offender is being sentenced for more than one offense, the firearm enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm enhancement.  If the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any firearm enhancements, the following additional times shall be added to the ((presumptive)) standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

    (a) Five years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection.

    (b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection.

    (c) Eighteen months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection.

    (d) If the offender is being sentenced for any firearm enhancements under (a), (b), and/or (c) of this subsection and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (4)(a), (b), and/or (c) of this section, or both, ((any and)) all firearm enhancements under this subsection shall be twice the amount of the enhancement listed.

    (e) Notwithstanding any other provision of law, ((any and)) all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.  However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.150(4).

    (f) The firearm enhancements in this section shall apply to all felony crimes except the following:  Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony.

    (g) If the ((presumptive)) standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender ((as defined in RCW 9.94A.030)).  If the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

    (4) The following additional times shall be added to the ((presumptive)) standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a deadly weapon ((as defined in this chapter)) other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any deadly weapon enhancements based on the classification of the completed felony crime.  If the offender is being sentenced for more than one offense, the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a deadly weapon enhancement.  If the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any deadly weapon enhancements, the following additional times shall be added to the ((presumptive)) standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

    (a) Two years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection.

    (b) One year for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection.

    (c) Six months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection.

    (d) If the offender is being sentenced under (a), (b), and/or (c) of this subsection for any deadly weapon enhancements and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (3)(a), (b), and/or (c) of this section, or both, ((any and)) all deadly weapon enhancements under this subsection shall be twice the amount of the enhancement listed.

    (e) Notwithstanding any other provision of law, ((any and)) all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.  However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.150(4).

    (f) The deadly weapon enhancements in this section shall apply to all felony crimes except the following:  Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony.

    (g) If the ((presumptive)) standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender ((as defined in RCW 9.94A.030)).  If the addition of a deadly weapon enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

    (5) The following additional times shall be added to the ((presumptive)) standard sentence range if the offender or an accomplice committed the offense while in a county jail or state correctional facility ((as that term is defined in this chapter)) and the offender is being sentenced for one of the crimes listed in this subsection.  If the offender or an accomplice committed one of the crimes listed in this subsection while in a county jail or state correctional facility ((as that term is defined in this chapter)), and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection, the following additional times shall be added to the ((presumptive)) standard sentence range determined under subsection (2) of this section:

    (a) Eighteen months for offenses committed under RCW 69.50.401(a)(1) (i) or (ii) or 69.50.410;

    (b) Fifteen months for offenses committed under RCW 69.50.401(a)(1) (iii), (iv), and (v);

    (c) Twelve months for offenses committed under RCW 69.50.401(d).

    For the purposes of this subsection, all of the real property of a state correctional facility or county jail shall be deemed to be part of that facility or county jail.

    (6) An additional twenty-four months shall be added to the ((presumptive)) standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435.

    (7) An additional two years shall be added to the ((presumptive)) standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055.

 

    Sec. 12.  RCW 9.94A.370 and 1999 c 143 s 16 are each amended to read as follows:

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

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

 

    Sec. 13.  RCW 9.94A.383 and 1999 c 196 s 10 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 custody, subject to conditions and sanctions as authorized in ((RCW 9.94A.120(11) (b) and (c))) sections 25 and 26 of this act.  An offender shall be on community 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 custody shall toll.

 

    Sec. 14.  RCW 9.94A.400 and 1999 c 352 s 11 are each amended to read as follows:

    (1)(a) Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score:  PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.  Sentences imposed under this subsection shall be served concurrently.  Consecutive sentences may only be imposed under the exceptional sentence provisions of ((RCW 9.94A.120 and 9.94A.390(2)(g) or any other provision of)) RCW 9.94A.390.  "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.  This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle.

    (b) Whenever a person is convicted of two or more serious violent offenses((, as defined in RCW 9.94A.030,)) arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.320 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero.  The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection.  All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.

    (c) If an offender is convicted under RCW 9.41.040 for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, the standard sentence range for each of these current offenses shall be determined by using all other current and prior convictions, except other current convictions for the felony crimes listed in this subsection (1)(c), as if they were prior convictions.  The offender shall serve consecutive sentences for each conviction of the felony crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed.

    (2)(a) Except as provided in (b) of this subsection, whenever a person while under sentence for conviction of a felony commits another felony and is sentenced to another term of confinement, the latter term shall not begin until expiration of all prior terms.

    (b) Whenever a second or later felony conviction results in community supervision with conditions not currently in effect, under the prior sentence or sentences of community supervision the court may require that the conditions of community supervision contained in the second or later sentence begin during the immediate term of community supervision and continue throughout the duration of the consecutive term of community supervision.

    (3) Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.

    (4) Whenever any person granted probation under RCW 9.95.210 or 9.92.060, or both, has the probationary sentence revoked and a prison sentence imposed, that sentence shall run consecutively to any sentence imposed pursuant to this chapter, unless the court pronouncing the subsequent sentence expressly orders that they be served concurrently.

    (5) ((However,)) In the case of consecutive sentences, all periods of total confinement shall be served before any partial confinement, community service, community supervision, or any other requirement or conditions of any of the sentences.  Except for exceptional sentences as authorized under RCW ((9.94A.120(2))) 9.94A.390, if two or more sentences that run consecutively include periods of community supervision, the aggregate of the community supervision period shall not exceed twenty-four months.

 

    Sec. 15.  RCW 9.94A.360 and 1999 c 352 s 10 and 1999 c 331 s 1 are each reenacted and amended to read as follows:

    The offender score is measured on the horizontal axis of the sentencing grid.  The offender score rules are as follows:

    The offender score is the sum of points accrued under this section rounded down to the nearest whole number.

    (1) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed.  Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.400.

    (2) Class A and sex prior felony convictions shall always be included in the offender score.  Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction.  Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.  Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction.  This subsection applies to both adult and juvenile prior convictions.

    (3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.  Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.  If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.

    (4) Score prior convictions for felony anticipatory offenses (attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses.

    (5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

    (i) Prior offenses which were found, under RCW 9.94A.400(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score.  The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.400(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used.  The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations;

    (ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense.  Use the conviction for the offense that yields the highest offender score.

    (b) As used in this subsection (5), "served concurrently" means that:  (i) The latter sentence was imposed with specific reference to the former; (ii) the concurrent relationship of the sentences was judicially imposed; and (iii) the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense.

    (6) If the present conviction is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense.  When these convictions are used as criminal history, score them the same as a completed crime.

    (7) If the present conviction is for a nonviolent offense and not covered by subsection (11) or (12) of this section, count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction and 2 point for each juvenile prior nonviolent felony conviction.

    (8) If the present conviction is for a violent offense and not covered in subsection (9), (10), (11), or (12) of this section, count two points for each prior adult and juvenile violent felony conviction, one point for each prior adult nonviolent felony conviction, and 2 point for each prior juvenile nonviolent felony conviction.

    (9) If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 2 point for each prior juvenile nonviolent felony conviction.

    (10) If the present conviction is for Burglary 1, count prior convictions as in subsection (8) of this section; however count two points for each prior adult Burglary 2 or residential burglary conviction, and one point for each prior juvenile Burglary 2 or residential burglary conviction.

    (11) If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicular Assault; for each felony offense count one point for each adult and 2 point for each juvenile prior conviction; for each serious traffic offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult and 2 point for each juvenile prior conviction.

    (12) If the present conviction is for a drug offense count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense.  All other adult and juvenile felonies are scored as in subsection (8) of this section if the current drug offense is violent, or as in subsection (7) of this section if the current drug offense is nonviolent.

    (13) If the present conviction is for Willful Failure to Return from Furlough, RCW 72.66.060, Willful Failure to Return from Work Release, RCW 72.65.070, or Escape from Community Custody, RCW 72.09.310, count only prior escape convictions in the offender score.  Count adult prior escape convictions as one point and juvenile prior escape convictions as 2 point.

    (14) If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW 9A.76.120, count adult prior convictions as one point and juvenile prior convictions as 2 point.

    (15) If the present conviction is for Burglary 2 or residential burglary, count priors as in subsection (7) of this section; however, count two points for each adult and juvenile prior Burglary 1 conviction, two points for each adult prior Burglary 2 or residential burglary conviction, and one point for each juvenile prior Burglary 2 or residential burglary conviction.

    (16) If the present conviction is for a sex offense, count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction.

    (17) If the present conviction is for an offense committed while the offender was under community placement, add one point.

 

    Sec. 16.  RCW 9.94A.410 and 1986 c 257 s 29 are each amended to read as follows:

    For persons convicted of the anticipatory offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the presumptive sentence is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the crime, and multiplying the range by 75 percent.

    ((In calculating an offender score, count each prior conviction as if the present conviction were for the completed offense.  When these convictions are used as criminal history, score them the same as a completed crime.))

 

                             PART III

                      Prosecutorial Standards

 

    Sec. 17.  RCW 9.94A.440 and 1999 c 322 s 6 and 1999 c 196 s 11 are each reenacted and amended to read as follows:

    (1) Decision not to prosecute.

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

    GUIDELINE/COMMENTARY:

    Examples

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

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

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

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

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

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

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

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

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

    (d) Confinement on Other Charges - 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))) section 20 of this act.

    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 Manslaughter

    2nd Degree Manslaughter

    1st Degree Kidnapping

    2nd Degree Kidnapping

    1st Degree Assault

    2nd Degree Assault

    3rd Degree Assault

    1st Degree Assault of a Child

    2nd Degree Assault of a Child

    3rd Degree Assault of a Child

    1st Degree Rape

    ((1st Degree Robbery))

    2nd Degree Rape

    3rd Degree Rape

    1st Degree Rape of a Child

    2nd Degree Rape of a Child

    3rd Degree Rape of a Child

    1st Degree Robbery

    2nd Degree Robbery

    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

    2nd 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))

    Counterfeiting (if a violation of RCW 9.16.035(4))

 

    CRIMES AGAINST PROPERTY/OTHER CRIMES

    2nd Degree Arson

    1st Degree Escape

    2nd Degree Escape

    2nd Degree Burglary

    1st Degree Theft

    2nd Degree Theft

    1st Degree Perjury

    2nd Degree Perjury

    1st Degree Introducing Contraband

    2nd Degree Introducing Contraband

    1st Degree Possession of Stolen Property

    2nd 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)

    1st Degree Theft((s)) of Livestock

    2nd Degree Theft of Livestock

 

    ALL OTHER UNCLASSIFIED FELONIES

    Selection of Charges/Degree of Charge

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

    (B) Will result in restitution to all victims.

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

    (A) Charging a higher degree;

    (B) Charging additional counts.

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

 

    (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:

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

    (B) The completion of necessary laboratory tests; and

    (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:

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

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

    (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:

    (A) Polygraph testing;

    (B) Hypnosis;

    (C) Electronic surveillance;

    (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.

 

                              PART IV

                      Sentencing Alternatives

 

    NEW SECTION.  Sec. 18.  FIRST-TIME OFFENDER WAIVER.  (1) This section applies to offenders who have never been previously convicted of a felony in this state, federal court, or another state, and who have never participated in a program of deferred prosecution for a felony, and who are convicted of a felony that is not:

    (a) Classified as a violent offense or a sex offense under this chapter;

    (b) 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;

    (c) Manufacture, delivery, or possession with intent to deliver a methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2); or

    (d) 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.

    (2) In sentencing a first-time offender the court may waive the imposition of a sentence within the standard sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses.  The sentence may also include a term of community supervision or community custody as specified in subsection (3) of this section, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

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

    (b) Undergo available outpatient treatment for up to the period specified in subsection (3) of this section, or inpatient treatment not to exceed the standard range of confinement for that offense;

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

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

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

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

    (3) The terms and statuses applicable to sentences under subsection (2) of this section are:

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

    (b) 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 section is subject to conditions and sanctions as authorized in this section and in section 25 (2) and (3) of this act.

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

 

    NEW SECTION.  Sec. 19.  DRUG OFFENDER SENTENCING ALTERNATIVE.  (1) An offender is eligible for the special drug offender sentencing alternative if:

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

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

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

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

    (2) If the standard sentence range is greater than one year and the sentencing court determines that the offender is eligible for this alternative and that the offender and the community will benefit from the use of the alternative, the judge may waive imposition of a sentence within the standard sentence 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 sentence range.  During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender.  The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.

    The court shall also impose:

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

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

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

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

    (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 court;

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

    (3) If the offender violates any of the sentence conditions in subsection (2) of this section, a violation hearing shall be held by the department unless waived by the offender.  If the department finds that conditions have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence.

    (4) 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.

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

 

    NEW SECTION.  Sec. 20.  SPECIAL SEX OFFENDER SENTENCING ALTERNATIVE.  (1) Unless the context clearly requires otherwise, the definitions in this subsection apply to this section only.

    (a) "Sex offender treatment provider" or "treatment provider" means a certified sex offender treatment provider as defined in RCW 18.155.020.

    (b) "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.

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

    (a) The offender has been 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;

    (b) The offender has no prior convictions for a sex offense as defined in RCW 9.94A.030 or any other felony sex offenses in this or any other state; and

    (c) The offender's standard sentence range for the offense includes the possibility of confinement for less than eleven years.

    (3) If the court finds the offender is eligible for this alternative, the court, on its own motion or the motion of the state or the offender, may order an examination to determine whether the offender is amenable to treatment.

    (a) The report of the examination shall include at a minimum the following:

    (i) The offender's version of the facts and the official version of the facts;

    (ii) The offender's offense history;

    (iii) An assessment of problems in addition to alleged deviant behaviors;

    (iv) The offender's social and employment situation; and

    (v) Other evaluation measures used.

The report shall set forth the sources of the examiner's information.

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

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

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

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

    (iv) Anticipated length of treatment; and

    (v) Recommended crime-related prohibitions.

    (c) 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 examiner shall be selected by the party making the motion.  The offender 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.

    (4) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this section.  If the court determines that this alternative is appropriate, the court shall then impose a sentence within the standard sentence range.  If the sentence imposed is less then 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 offender 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 under section 26 of this act.

    (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.  If any party or the court objects to a proposed change, the offender shall not change providers or conditions without court approval after a hearing.

    (5) As conditions of the suspended sentence, the court may impose one or more of the following:

    (a) Up to six months of confinement, not to exceed the sentence range of confinement for that offense;

    (b) Crime-related prohibitions;

    (c) Require the offender to devote time to a specific employment or occupation;

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

    (e) Report as directed to the court and a community corrections officer;

    (f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030;

    (g) Perform community service work; or

    (h) Reimburse the victim for the cost of any counseling required as a result of the offender's crime.

    (6) 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.

    (7) The sex offender treatment provider shall submit quarterly reports on the offender'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, offender's compliance with requirements, treatment activities, the offender's relative progress in treatment, and any other material specified by the court at sentencing.

    (8) Prior to the treatment termination hearing, the treatment provider and community corrections officer shall submit written reports to the court and parties regarding the offender's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment, including proposed community custody conditions.  Either party may request, and the court may order, another evaluation regarding the advisability of termination from treatment.  The offender shall pay the cost of any additional evaluation ordered unless the court finds the offender 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.

    (9) 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 subsections (6) and (8) of this section.

    (10) 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 offender violates the conditions of the suspended sentence, or (b) the court finds that the offender 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.

    (11) 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 unless 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; or

    (b)(i) No certified providers are available for treatment within a reasonable geographical distance of the offender's home; and

    (ii) The evaluation and treatment plan comply with this section and the rules adopted by the department of health.

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

 

    Sec. 21.  RCW 9.94A.137 and 1999 c 197 s 5 are each amended to read as follows:

    (1)(a) An offender is eligible to be sentenced to a work ethic camp if the offender:

    (i) Is sentenced to a term of total confinement of not less than twelve months and one day or more than thirty-six months;

    (ii) Has no current or prior convictions for any sex offenses or for violent offenses; and

    (iii) Is not currently subject to a sentence for, or being prosecuted for, a violation of the uniform controlled substances act or a criminal solicitation to commit such a violation under chapter 9A.28 or 69.50 RCW.

    (b) The length of the work ethic camp shall be at least one hundred twenty days and not more than one hundred eighty days.

    (2) If the sentencing ((judge)) court determines that the offender is eligible for the work ethic camp and is likely to qualify under subsection (3) of this section, the judge shall impose a sentence within the standard sentence range and may recommend that the offender serve the sentence at a work ethic camp.  In sentencing an offender to the work ethic camp, the court shall specify:  (a) That upon completion of the work ethic camp the offender shall be released on community custody for any remaining time of total confinement; (b) the applicable conditions of supervision on community custody status as required by ((RCW 9.94A.120(9)(b))) section 22(4) of this act and authorized by ((RCW 9.94A.120(9)(c))) section 22(5) of this act; and (c) that violation of the conditions may result in a return to total confinement for the balance of the offender's remaining time of confinement.

    (3) The department shall place the offender in the work ethic camp program, subject to capacity, unless:  (a) The department determines that the offender has physical or mental impairments that would prevent participation and completion of the program; (b) the department determines that the offender's custody level prevents placement in the program; (c) the offender refuses to agree to the terms and conditions of the program; (d) the offender has been found by the United States attorney general to be subject to a deportation detainer or order; or (e) the offender has participated in the work ethic camp program in the past.

    (4) An offender who fails to complete the work ethic camp program, who is administratively terminated from the program, or who otherwise violates any conditions of supervision, as defined by the department, shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing ((judge)) court and shall be subject to all rules relating to earned ((early)) release time.

    (5) During the last two weeks prior to release from the work ethic camp program the department shall provide the offender with comprehensive transition training.

 

                              PART V

                    Offenders in the Community

 

    NEW SECTION.  Sec. 22.  COMMUNITY PLACEMENT.  When a court sentences an offender to a term of total confinement in the custody of the department for any of the offenses specified in this section, the court shall also sentence the offender to a term of community placement as provided in this section.

    (1) The court shall order a one-year term of community placement for the following:

    (a) A sex offense or a serious violent offense committed after July 1, 1988, but before July 1, 1990; or

    (b) An offense committed on or after July 1, 1988, but before July 25, 1999, that is:

    (i) Assault in the second degree;

    (ii) Assault of a child in the second degree;

    (iii) A crime against persons where it is determined in accordance with RCW 9.94A.125 that the offender or an accomplice was armed with a deadly weapon at the time of commission; or

    (iv) A felony offense under chapter 69.50 or 69.52 RCW not sentenced under section 19 of this act.

    (2) The court shall sentence the offender to a term of community placement of two years or up to the period of earned release awarded pursuant to RCW 9.94A.150, whichever is longer, for:

    (a) An offense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, including those sex offenses also included in other offense categories;

    (b) A serious violent offense other than a sex offense committed on or after July 1, 1990, but before July 1, 2000; or

    (c) A vehicular homicide or vehicular assault committed on or after July 1, 1990, but before July 1, 2000.

    (3) The community placement ordered under this section 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.  When the court sentences an offender to the statutory maximum sentence then the community placement portion of the sentence shall consist entirely of the community custody to which the offender may become eligible.  Any period of community custody actually served shall be credited against the community placement portion of the sentence.

    (4) Unless a condition is waived by the court, the terms of any community placement imposed under this section shall include the following conditions:

    (a) The offender shall report to and be available for contact with the assigned community corrections officer as directed;

    (b) The offender shall work at department-approved education, employment, or community service, or any combination thereof;

    (c) The offender shall not possess or consume controlled substances except pursuant to lawfully issued prescriptions;

    (d) The offender shall pay supervision fees as determined by the department; and

    (e) The residence location and living arrangements shall be subject to the prior approval of the department during the period of community placement.

    (5) As a part of any terms of community placement imposed under this section, the court may also order one or more of the following special conditions:

    (a) The offender shall remain within, or outside of, a specified geographical boundary;

    (b) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;

    (c) The offender shall participate in crime-related treatment or counseling services;

    (d) The offender shall not consume alcohol; or

    (e) The offender shall comply with any crime-related prohibitions.

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

    (7) Prior to or during community placement, upon recommendation of the department, the sentencing court may remove or modify any conditions of community placement so as not to be more restrictive.

 

    NEW SECTION.  Sec. 23.  COMMUNITY PLACEMENT FOR SPECIFIED OFFENDERS.  Except for persons sentenced under section 22(2) or 24 of this act, when a court sentences a person to a term of total confinement to the custody of the department for a violent offense, any crime against persons under RCW 9.94A.440(2), or any felony offense under chapter 69.50 or 69.52 RCW not sentenced under section 19 of this act, committed on or after July 25, 1999, but before July 1, 2000, the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement beginning either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences the offender under this section 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.

 

    NEW SECTION.  Sec. 24.  COMMUNITY CUSTODY FOR SEX OFFENDERS.  (1) When a court sentences a person to the custody of the department for an offense categorized as a sex offense, including those sex offenses also included in other offense categories, committed on or after June 6, 1996, and before July 1, 2000, the court shall, in addition to other terms of the sentence, sentence the offender to community custody for three years or up to the period of earned release awarded pursuant to RCW 9.94A.150, 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.

    (2) Unless a condition is waived by the court, the terms of community custody imposed under this section shall be the same as those provided for in section 22(4) of this act and may include those provided for in section 22(5) of this act.  As part of any sentence that includes a term of community custody imposed under this section, the court shall also require the offender to comply with any conditions imposed by the department under section 26 of this act.

    (3) 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.

 

    NEW SECTION.  Sec. 25.  COMMUNITY CUSTODY FOR SPECIFIED OFFENDERS.  (1) When a court sentences a person to the custody of the department for a sex offense, a violent offense, any crime against persons under RCW 9.94A.440(2), or a felony offense under chapter 69.50 or 69.52 RCW not sentenced under section 19 of this act, 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 established under RCW 9.94A.040 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).

    (2)(a) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in section 22(4) of this act.  The conditions may also include those provided for in section 22(5) of this act.  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 subsection (6) of this section.

    (b) 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 under section 26 of this act.  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.  In addition, the department may require the offender to participate in rehabilitative programs, or otherwise perform affirmative conduct, and to obey all laws.

    (c) 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.

    (3) If an offender violates conditions imposed by the court or the department pursuant to this section 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.

    (4) Except for terms of community custody under section 20 of this act, 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.

    (5) 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.

    (6) 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.

    (7) 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:  (a) The crime of conviction; (b) the offender's risk of reoffending; or (c) the safety of the community.

 

    NEW SECTION.  Sec. 26.  SUPERVISION OF OFFENDERS. (1)(a) 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 and shall follow explicitly the instructions and conditions of the department.  The department may require an offender to perform affirmative acts it deems appropriate to monitor compliance with the conditions of the sentence imposed.

    (b) 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.

    (c) 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 (b) 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.

    (d) For offenders sentenced to terms of community custody for crimes committed on or after July 1, 2000, the department may impose conditions as specified in section 25 of this act.

    The conditions authorized under (c) of this subsection 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 section 24 of this act occurs during community custody, it shall be deemed a violation of community placement for the purposes of RCW 9.94A.207 and shall authorize the department to transfer an offender to a more restrictive confinement status as provided in RCW 9.94A.205.  At any time prior to the completion of an offender's term of community custody, the department may recommend to the court that any or all of the conditions imposed by the court or the department pursuant to section 24 or 25 of this act be continued beyond the expiration of the offender's term of community custody as authorized in section 25 (3) or (5) of this act.

    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.

    (2) No offender sentenced to terms involving community supervision, community service, community custody, or community placement under the supervision of the department may 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 violation process and sanctions under RCW 9.94A.200, 9.94A.205, and 9.94A.207.  "Constructive possession" as used in this subsection means the power and intent to control the firearm or ammunition.  "Firearm" as used in this subsection has the same definition as in RCW 9.41.010.

 

    Sec. 27.  RCW 9.94A.135 and 1991 c 181 s 2 are each amended to read as follows:

    Participation in a work crew is conditioned upon the offender's acceptance into the program, abstinence from alcohol and controlled substances as demonstrated by urinalysis and breathalyzer monitoring, with the cost of monitoring to be paid by the offender, unless indigent; and upon compliance with the rules of the program, which rules ((shall include the requirements that)) require the offender to work to the best of his or her abilities and ((that he or she)) provide the program with accurate, verified residence information.  Work crew may be imposed simultaneously with electronic home detention.

    Where work crew is imposed as part of a sentence of nine months or more, the offender must serve a minimum of thirty days of total confinement before being eligible for work crew.

    Work crew tasks shall be performed for a minimum of thirty-five hours per week.  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 are not eligible for the work crew program.

    An offender who has successfully completed four weeks of work crew at thirty-five hours per week shall thereafter receive credit toward the work crew sentence for hours worked at approved, verified employment.  Such employment credit may be earned for up to twenty-four hours actual employment per week provided, however, that every such offender shall continue active participation in work crew((s)) projects according to a schedule approved by a work crew supervisor until the work crew sentence has been served.

    The hours served as part of a work crew sentence may include substance abuse counseling and/or job skills training.

    The civic improvement tasks performed by offenders on work crew shall be unskilled labor for the benefit of the community as determined by the head of the county executive branch or his or her designee.  Civic improvement tasks shall not be done on private property unless it is owned or operated by a nonprofit entity, except that, for emergency purposes only, work crews may perform snow removal on any private property.  The civic improvement tasks shall have minimal negative impact on existing private industries or the labor force in the county where the service or labor is performed.  The civic improvement tasks shall not affect employment opportunities for people with developmental disabilities contracted through sheltered workshops as defined in RCW 82.04.385.  In case any dispute arises as to a civic improvement task having more than minimum negative impact on existing private industries or labor force in the county where their service or labor is performed, the matter shall be referred by an interested party, as defined in RCW 39.12.010(4), for arbitration to the director of the department of labor and industries of the state.

    Whenever an offender receives credit against a work crew sentence for hours of approved, verified employment, the offender shall pay to the ((department)) agency administering the program the monthly assessment of an amount not less than ten dollars per month nor more than fifty dollars per month.  This assessment shall be considered payment of the costs of providing the work crew program to an offender.  The court may exempt a person from the payment of all or any part of the assessment based upon any of the following factors:

    (1) The offender has diligently attempted but has been unable to obtain employment that ((provided)) provides the offender sufficient income to make such payment.

    (2) The offender is a student in a school, college, university, or a course of vocational or technical training designed to fit the student for gainful employment.

    (3) The offender has an employment handicap, as determined by an examination acceptable to or ordered by the court.

    (4) The offender is responsible for the support of dependents and the payment of the assessment constitutes an undue hardship.

    (5) Other extenuating circumstances as determined by the court.

 

    Sec. 28.  RCW 9.94A.150 and 1999 c 324 s 1 and 1999 c 37 s 1 are each reenacted and amended to read as follows:

    No person serving a sentence imposed pursuant to this chapter and committed to the custody of the department shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows:

    (1) Except as otherwise provided for in subsection (2) of this section, the term of the sentence of an offender committed to a correctional facility operated by the department((,)) may be reduced by earned ((early)) release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined.  The earned ((early)) release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction.  The correctional agency shall not credit the offender with earned ((early)) release credits in advance of the offender actually earning the credits.  Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration.  If an offender is transferred from a county jail to the department ((of corrections)), the administrator of a county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned ((early)) release time.  ((In the case of)) An offender who has been convicted of a felony committed after July 23, 1995, that involves any applicable deadly weapon enhancements under RCW 9.94A.310 (3) or (4), or both, shall not receive any good time credits or earned ((early)) release time for that portion of his or her sentence that results from any deadly weapon enhancements.  In the case of an offender convicted of a serious violent offense, or a sex offense that is a class A felony, committed on or after July 1, 1990, the aggregate earned ((early)) release time may not exceed fifteen percent of the sentence.  In no other case shall the aggregate earned ((early)) release time exceed one-third of the total sentence;

    (2)(a) A person convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, vehicular homicide, vehicular assault, assault of a child in the second degree, any crime against ((a)) persons where it is determined in accordance with RCW 9.94A.125 that the ((defendant)) offender or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW, committed before July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned ((early)) release time pursuant to subsection (1) of this section;

    (b) A person convicted of a sex offense, a violent offense, any crime against persons under RCW 9.94A.440(2), or a felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section;

    (3) An offender may leave a correctional facility pursuant to an authorized furlough or leave of absence.  In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers;

    (4)(a) The secretary ((of corrections)) may authorize an extraordinary medical placement for an offender when all of the following conditions exist:

    (i) The offender has a medical condition that is serious enough to require costly care or treatment;

    (ii) The offender poses a low risk to the community because he or she is physically incapacitated due to age or the medical condition; and

    (iii) Granting the extraordinary medical placement will result in a cost savings to the state.

    (b) An offender sentenced to death or to life imprisonment without the possibility of release or parole is not eligible for an extraordinary medical placement ((under this subsection)).

    (c) The secretary shall require electronic monitoring for all offenders in extraordinary medical placement unless the electronic monitoring equipment interferes with the function of the offender's medical equipment or results in the loss of funding for the offender's medical care.  The secretary shall specify who shall provide the monitoring services and the terms under which the monitoring shall be performed.

    (d) The secretary may revoke an extraordinary medical placement under this subsection at any time.

    (5) The governor, upon recommendation from the clemency and pardons board, may grant an extraordinary release for reasons of serious health problems, senility, advanced age, extraordinary meritorious acts, or other extraordinary circumstances;

    (6) No more than the final six months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing himself or herself in the community;

    (7) The governor may pardon any offender;

    (8) The department ((of corrections)) may release an offender from confinement any time within ten days before a release date calculated under this section; and

    (9) An offender may leave a correctional facility prior to completion of his or her sentence if the sentence has been reduced as provided in RCW 9.94A.160.

    Notwithstanding any other provisions of this section, an offender sentenced for a felony crime listed in ((RCW 9.94A.120(4))) section 7 of this act as subject to a mandatory minimum sentence of total confinement shall not be released from total confinement before the completion of the listed mandatory minimum sentence for that felony crime of conviction unless allowed under ((RCW 9.94A.120(4))) section 7 of this act, however persistent offenders are not eligible for extraordinary medical placement.

 

    Sec. 29.  RCW 9.94A.180 and 1999 c 143 s 15 are each amended to read as follows:

    (1) An offender sentenced to a term of partial confinement shall be confined in the facility for at least eight hours per day or, if serving a work crew sentence shall comply with the conditions of that sentence as set forth in RCW 9.94A.030(((26))) (30) and 9.94A.135.  The offender shall be required as a condition of partial confinement to report to the facility at designated times.  During the period of partial confinement, an offender may be required to comply with crime-related prohibitions ((during the period of partial confinement)) and affirmative conditions imposed by the court or the department pursuant to this chapter.

    (2) An offender in a county jail ordered to serve all or part of a term of less than one year in work release, work crew, or a program of home detention who violates the rules of the work release facility, work crew, or program of home detention or fails to remain employed or enrolled in school may be transferred to the appropriate county detention facility without further court order but shall, upon request, be notified of the right to request an administrative hearing on the issue of whether or not the offender failed to comply with the order and relevant conditions.  Pending such hearing, or in the absence of a request for the hearing, the offender shall serve the remainder of the term of confinement as total confinement.  This subsection shall not affect transfer or placement of offenders committed to the ((state)) department ((of corrections)).

    (3) Participation in work release shall be conditioned upon the offender attending work or school at regularly defined hours and abiding by the rules of the work release facility.

 

    Sec. 30.  RCW 9.94A.185 and 1995 c 108 s 2 are each amended to read as follows:

    (1) Home detention may not be imposed for offenders convicted of:

    (a) A violent offense((,));

    (b) Any sex offense((,));

    (c) Any drug offense((,));

    (d) Reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050((,));

    (e) Assault in the third degree as defined in RCW 9A.36.031((,));

    (f) Assault of a child in the third degree((,));

    (g) Unlawful imprisonment as defined in RCW 9A.40.040((,)); or

    (h) Harassment as defined in RCW 9A.46.020.

Home detention may be imposed for offenders convicted of possession of a controlled substance under RCW 69.50.401(d) or forged prescription for a controlled substance under RCW 69.50.403 if the offender fulfills the participation conditions set forth in this ((subsection [section])) section and is monitored for drug use by a treatment alternatives to street crime program or a comparable court or agency-referred program.

    (((1))) (2) Home detention may be imposed for offenders convicted of burglary in the second degree as defined in RCW 9A.52.030 or residential burglary conditioned upon the offender:

    (a) Successfully completing twenty-one days in a work release program((,));

    (b) Having no convictions for burglary in the second degree or residential burglary during the preceding two years and not more than two prior convictions for burglary or residential burglary((,));

    (c) Having no convictions for a violent felony offense during the preceding two years and not more than two prior convictions for a violent felony offense((,));

    (d) Having no prior charges of escape((,)); and

    (e) Fulfilling the other conditions of the home detention program.

    (((2))) (3) Participation in a home detention program shall be conditioned upon:

    (a) The offender obtaining or maintaining current employment or attending a regular course of school study at regularly defined hours, or the offender performing parental duties to offspring or minors normally in the custody of the offender((,));

    (b) Abiding by the rules of the home detention program((,)); and

    (c) Compliance with court-ordered legal financial obligations.  The home detention program may also be made available to offenders whose charges and convictions do not otherwise disqualify them if medical or health-related conditions, concerns or treatment would be better addressed under the home detention program, or where the health and welfare of the offender, other inmates, or staff would be jeopardized by the offender's incarceration.  Participation in the home detention program for medical or health-related reasons is conditioned on the offender abiding by the rules of the home detention program and complying with court-ordered restitution.

 

                              PART VI

                    Legal Financial Obligations

 

    Sec. 31.  RCW 9.94A.145 and 1999 c 196 s 6 are each amended to read as follows:

    (1) Whenever a person is convicted of a felony, the court may order the payment of a legal financial obligation as part of the sentence.  The court must on either the judgment and sentence or on a subsequent order to pay, designate the total amount of a legal financial obligation and segregate this amount among the separate assessments made for restitution, costs, fines, and other assessments required by law.  On the same order, the court is also to set a sum that the offender is required to pay on a monthly basis towards satisfying the legal financial obligation.  If the court fails to set the offender monthly payment amount, the department shall set the amount.  Upon receipt of an offender's monthly payment, restitution shall be paid prior to any payments of other monetary obligations.  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 issued 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)) Independent of the department, the party or entity to whom the legal financial obligation is owed shall have the authority to use any other remedies available to the party or entity to collect the legal financial obligation.  These remedies include enforcement 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))) (6) or 9.94A.142(((3))) (6) to a victim of rape of a child ((and the)) or a 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))) (6) and 9.94A.142(((3))) (6).  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 respond 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)) department may ((be required at the request of the department)) require the offender 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 respond 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)) shall 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)) is authorized, for any period of supervision ((be authorized to)), 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 purpose((s)) 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 for noncompliance as provided in RCW 9.94A.200 ((for noncompliance)), 9.94A.205, or 9.94A.207.

    (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.

    (13) Nothing in this chapter 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.

 

    Sec. 32.  RCW 9.94A.140 and 1997 c 121 s 3 and 1997 c 52 s 1 are each reenacted and amended to read as follows:

    This section applies to offenses committed on or before July 1, 1985.

    (1) If restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days.  The court may continue the hearing beyond the one hundred eighty days for good cause.  The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered.  The court should take into consideration the total amount of the restitution owed, the offender's present, past, and future ability to pay, as well as any assets that the offender may have.

    (2) During the period of supervision, the community corrections officer may examine the offender to determine if there has been a change in circumstances that warrants an amendment of the monthly payment schedule.  The community corrections officer may recommend a change to the schedule of payment and shall inform the court of the recommended change and the reasons for the change.  The sentencing court may then reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances.     (3) Except as provided in subsection (((3))) (6) of this section, restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.  Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense.  The amount of restitution shall not exceed double the amount of the offender's gain or the victim's loss from the commission of the ((crime)) offense.

    (4) For the purposes of this section, the offender shall remain under the court's jurisdiction for a term of ten years following the offender's release from total confinement or ten years subsequent to the entry of the judgment and sentence, whichever period is longer.  Prior to the expiration of the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional ten years for payment of restitution.  If jurisdiction under the criminal judgment is extended, the department is not responsible for supervision of the offender during the subsequent period.  The portion of the sentence concerning restitution may be modified as to amount, terms and conditions during either the initial ten-year period or subsequent ten-year period if the criminal judgment is extended, regardless of the expiration of the offender's term of community supervision and regardless of the statutory maximum sentence for the crime.  The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount.  The offender's compliance with the restitution shall be supervised by the department ((of corrections)).

    (((2))) (5) Restitution may be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (((3))) (6) of this section.  In addition, restitution may be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.

    (((3))) (6) Restitution for the crime of rape of a child in the first, second, or third degree, in which the victim becomes pregnant, shall include:  (a) All of the victim's medical expenses that are associated with the rape and resulting pregnancy; and (b) child support for any child born as a result of the rape if child support is ordered pursuant to a ((civil)) proceeding in superior court or administrative order for support for that child.  The clerk must forward any restitution payments made on behalf of the victim's child to the Washington state child support registry under chapter 26.23 RCW.  Identifying information about the victim and child shall not be included in the order.  The ((defendant)) offender shall receive a credit against any obligation owing under the administrative or superior court order for support of the victim's child.  For the purposes of this subsection, the offender shall remain under the court's jurisdiction until the ((defendant)) offender has satisfied support obligations under the superior court or administrative order but not longer than a maximum term of twenty-five years following the offender's release from total confinement or twenty-five years subsequent to the entry of the judgment and sentence, whichever period is longer.  The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount.  The department shall supervise the offender's compliance with the restitution ordered under this subsection.

    (((4))) (7) In addition to any sentence that may be imposed, ((a defendant)) an offender who has been found guilty of an offense involving fraud or other deceptive practice or an organization which has been found guilty of any such offense may be ordered by the sentencing court to give notice of the conviction to the class of persons or to the sector of the public affected by the conviction or financially interested in the subject matter of the offense by mail, by advertising in designated areas or through designated media, or by other appropriate means.

    (((5))) (8) This section does not limit civil remedies or defenses available to the victim or ((defendant)) offender including support enforcement remedies for support ordered under subsection (((3))) (6) of this section for a child born as a result of a rape of a child victim.  The court shall identify in the judgment and sentence the victim or victims entitled to restitution and what amount is due each victim.  The state or victim may enforce the court-ordered restitution in the same manner as a judgment in a civil action.  Restitution collected through civil enforcement must be paid through the registry of the court and must be distributed proportionately according to each victim's loss when there is more than one victim.

 

    Sec. 33.  RCW 9.94A.142 and 1997 c 121 s 4 and 1997 c 52 s 2 are each reenacted and amended to read as follows:

    This section applies to offenses committed after July 1, 1985.

    (1) When restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days except as provided in subsection (((4))) (7) of this section.  The court may continue the hearing beyond the one hundred eighty days for good cause.  The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered.  The court should take into consideration the total amount of the restitution owed, the offender's present, past, and future ability to pay, as well as any assets that the offender may have.

    (2) During the period of supervision, the community corrections officer may examine the offender to determine if there has been a change in circumstances that warrants an amendment of the monthly payment schedule.  The community corrections officer may recommend a change to the schedule of payment and shall inform the court of the recommended change and the reasons for the change.  The sentencing court may then reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances.

    (3) Except as provided in subsection (((3))) (6) of this section, restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.  Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense.  The amount of restitution shall not exceed double the amount of the offender's gain or the victim's loss from the commission of the crime.

    (4) For the purposes of this section, the offender shall remain under the court's jurisdiction for a term of ten years following the offender's release from total confinement or ten years subsequent to the entry of the judgment and sentence, whichever period is longer.  Prior to the expiration of the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional ten years for payment of restitution.  The portion of the sentence concerning restitution may be modified as to amount, terms and conditions during either the initial ten-year period or subsequent ten-year period if the criminal judgment is extended, regardless of the expiration of the offender's term of community supervision and regardless of the statutory maximum sentence for the crime.  The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount.  The offender's compliance with the restitution shall be supervised by the department ((of corrections)) for ten years following the entry of the judgment and sentence or ten years following the offender's release from total confinement.  If jurisdiction under the criminal judgment is extended, the department is not responsible for supervision of the offender during the subsequent period.

    (((2))) (5) Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (((3))) (6) of this section unless extraordinary circumstances exist which make restitution inappropriate in the court's judgment and the court sets forth such circumstances in the record.  In addition, restitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.

    (((3))) (6) Restitution for the crime of rape of a child in the first, second, or third degree, in which the victim becomes pregnant, shall include:  (a) All of the victim's medical expenses that are associated with the rape and resulting pregnancy; and (b) child support for any child born as a result of the rape if child support is ordered pursuant to a civil superior court or administrative order for support for that child.  The clerk must forward any restitution payments made on behalf of the victim's child to the Washington state child support registry under chapter 26.23 RCW.  Identifying information about the victim and child shall not be included in the order.  The ((defendant)) offender shall receive a credit against any obligation owing under the administrative or superior court order for support of the victim's child.  For the purposes of this subsection, the offender shall remain under the court's jurisdiction until the ((defendant)) offender has satisfied support obligations under the superior court or administrative order but not longer than a maximum term of twenty-five years following the offender's release from total confinement or twenty-five years subsequent to the entry of the judgment and sentence, whichever period is longer.  The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount.  The department shall supervise the offender's compliance with the restitution ordered under this subsection.

    (((4))) (7) Regardless of the provisions of subsections (1)((, (2), and (3))) through (6) of this section, the court shall order restitution in all cases where the victim is entitled to benefits under the crime victims' compensation act, chapter 7.68 RCW.  If the court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims' compensation act, the department of labor and industries, as administrator of the crime victims' compensation program, may petition the court within one year of entry of the judgment and sentence for entry of a restitution order.  Upon receipt of a petition from the department of labor and industries, the court shall hold a restitution hearing and shall enter a restitution order.

    (((5))) (8) In addition to any sentence that may be imposed, ((a defendant)) an offender who has been found guilty of an offense involving fraud or other deceptive practice or an organization which has been found guilty of any such offense may be ordered by the sentencing court to give notice of the conviction to the class of persons or to the sector of the public affected by the conviction or financially interested in the subject matter of the offense by mail, by advertising in designated areas or through designated media, or by other appropriate means.

    (((6))) (9) This section does not limit civil remedies or defenses available to the victim, survivors of the victim, or ((defendant)) offender including support enforcement remedies for support ordered under subsection (((3))) (6) of this section for a child born as a result of a rape of a child victim.  The court shall identify in the judgment and sentence the victim or victims entitled to restitution and what amount is due each victim.  The state or victim may enforce the court-ordered restitution in the same manner as a judgment in a civil action.  Restitution collected through civil enforcement must be paid through the registry of the court and must be distributed proportionately according to each victim's loss when there is more than one victim.

    (((7) This section shall apply to offenses committed after July 1, 1985.))

 

                             PART VII

                      Sex Offender Treatment

 

    NEW SECTION.  Sec. 34.  SEX OFFENDER TREATMENT.  (1) When an offender commits any felony sex offense on or after July 1, 1987, and on or before July 1, 1990, 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 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 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:

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

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

    (c) Report as directed to the court and a community corrections officer;

    (d) 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.

    Nothing in this subsection shall confer eligibility for such programs for offenders convicted and sentenced for a sex offense committed prior to July 1, 1987.

    (2) 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 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.

 

    NEW SECTION.  Sec. 35.  TRANSITION AND RELAPSE PREVENTION STRATEGIES.  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.

 

    NEW SECTION.  Sec. 36.  SEX OFFENDER TREATMENT.  (1) Sex offender examinations and treatment ordered as a special condition of community placement or community custody under this chapter shall be conducted only by sex offender treatment providers certified by the department of health under chapter 18.155 RCW unless the court or the department 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) the treatment provider is employed by the department; or (c)(i) no certified providers are available to provide treatment within a reasonable geographic distance of the offender's home, as determined in rules adopted by the secretary; and (ii) the evaluation and treatment plan comply with the rules adopted by the department of health.  A treatment provider selected by an offender under (c) of this subsection, 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.

    (2) 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. 37.  RCW 18.155.010 and 1990 c 3 s 801 are each amended to read as follows:

    The legislature finds that sex offender therapists who examine and treat sex offenders pursuant to the special sexual offender sentencing alternative under ((RCW 9.94A.120(7)(a))) section 20 of this act and who may treat juvenile sex offenders pursuant to RCW 13.40.160, play a vital role in protecting the public from sex offenders who remain in the community following conviction.  The legislature finds that the qualifications, practices, techniques, and effectiveness of sex offender treatment providers vary widely and that the court's ability to effectively determine the appropriateness of granting the sentencing alternative and monitoring the offender to ensure continued protection of the community is undermined by a lack of regulated practices.  The legislature recognizes the right of sex offender therapists to practice, consistent with the paramount requirements of public safety.  Public safety is best served by regulating sex offender therapists whose clients are being evaluated and being treated pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act and RCW 13.40.160.  This chapter shall be construed to require only those sex offender therapists who examine and treat sex offenders pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act and RCW 13.40.160 to obtain a sexual offender treatment certification as provided in this chapter.

 

    Sec. 38.  RCW 18.155.020 and 1990 c 3 s 802 are each amended to read as follows:

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

    (1) "Certified sex offender treatment provider" means a licensed, certified, or registered health professional who is certified to examine and treat sex offenders pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act and RCW 13.40.160.

    (2) "Department" means the department of health.

    (3) "Secretary" means the secretary of health.

    (4) "Sex offender treatment provider" means a person who counsels or treats sex offenders accused of or convicted of a sex offense as defined by RCW 9.94A.030.

 

    Sec. 39.  RCW 18.155.030 and 1990 c 3 s 803 are each amended to read as follows:

    (1) No person shall represent himself or herself as a certified sex offender treatment provider without first applying for and receiving a certificate pursuant to this chapter.

    (2) Only a certified sex offender treatment provider may perform or provide the following services:

    (a) Evaluations conducted for the purposes of and pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act and RCW 13.40.160;

    (b) Treatment of convicted sex offenders who are sentenced and ordered into treatment pursuant to ((RCW 9.94A.120(7)(a))) section 20 of this act and adjudicated juvenile sex offenders who are ordered into treatment pursuant to RCW 13.40.160.

 

                             PART VIII

                    DASA Licensing Requirements

 

    Sec. 40.  RCW 46.61.524 and 1991 c 348 s 2 are each amended to read as follows:

    (1) A person convicted under RCW 46.61.520(1)(a) or 46.61.522(1)(b) shall, as a condition of community supervision imposed under RCW 9.94A.383 or community placement imposed under ((RCW 9.94A.120(8))) section 19 of this act, complete a diagnostic evaluation by an alcohol or drug dependency agency approved by the department of social and health services or a qualified probation department, as defined under RCW 46.61.516 that has been approved by the department of social and health services.  This report shall be forwarded to the department of licensing.  If the person is found to have an alcohol or drug problem that requires treatment, the person shall complete treatment in a program approved by the department of social and health services under chapter 70.96A RCW.  If the person is found not to have an alcohol or drug problem that requires treatment, he or she shall complete a course in an information school approved by the department of social and health services under chapter 70.96A RCW.  The convicted person shall pay all costs for any evaluation, education, or treatment required by this section, unless the person is eligible for an existing program offered or approved by the department of social and health services.  Nothing in chapter 348, Laws of 1991 requires the addition of new treatment or assessment facilities nor affects the department of social and health services use of existing programs and facilities authorized by law.

    (2) As provided for under RCW 46.20.285, the department shall revoke the license, permit to drive, or a nonresident privilege of a person convicted of vehicular homicide under RCW 46.61.520 or vehicular assault under RCW 46.61.522.  The department shall determine the eligibility of a person convicted of vehicular homicide under RCW 46.61.520(1)(a) or vehicular assault under RCW 46.61.522(1)(b) to receive a license based upon the report provided by the designated alcoholism treatment facility or probation department, and shall deny reinstatement until satisfactory progress in an approved program has been established and the person is otherwise qualified.

 

                              PART IX

                           Miscellaneous

 

    Sec. 41.  RCW 9.94A.040 and 1999 c 352 s 1 and 1999 c 196 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-time 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 level XIV 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))) section 25 of this act 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. 42.  RCW 9.94A.395 and 1993 c 144 s 5 are each amended to read as follows:

    (1) The sentencing court or the court's successor shall consider recommendations from the indeterminate sentence review board for resentencing ((defendants)) offenders convicted of murder if the indeterminate sentence review board advises the court of the following:

    (a) The ((defendant)) offender was convicted for a murder committed prior to ((the effective date of RCW 9.94A.390(1)(h))) July 23, 1989;

    (b) RCW 9.94A.390(1)(h), if effective when the ((defendant)) offender committed the crime, would have provided a basis for the ((defendant)) offender to seek a mitigated sentence; and

    (c) Upon review of the sentence, the indeterminate sentence review board believes that the sentencing court, when originally sentencing the ((defendant)) offender for the murder, did not consider evidence that the victim subjected the ((defendant)) offender or the ((defendant's)) offender's children to a continuing pattern of sexual or physical abuse and the murder was in response to that abuse.

    (2) The court may resentence the ((defendant)) offender in light of RCW 9.94A.390(1)(h) and impose an exceptional mitigating sentence pursuant to that provision.  Prior to resentencing, the court shall consider any other recommendation and evidence concerning the issue of whether the ((defendant)) offender committed the crime in response to abuse.

    (3) The court shall render its decision regarding reducing the inmate's sentence no later than six months after receipt of the indeterminate sentence review board's recommendation to reduce the sentence imposed.

 

    NEW SECTION.  Sec. 43.  Part headings and section captions used in this act do not constitute any part of the law.

 

    NEW SECTION.  Sec. 44.  Sections 3, 6, 7, 18 through 20, 22 through 26, and 34 through 36 of this act are each added to chapter 9.94A RCW.

 

    NEW SECTION.  Sec. 45.  If any amendments to RCW 9.94A.120, or any sections enacted or affected by this act, are enacted in a 2000 legislative session that do not take cognizance of this act, the code reviser shall prepare a bill for introduction in the 2001 legislative session that incorporates any such amendments into the reorganization adopted by this act and corrects any incorrect cross-references.

 

    NEW SECTION.  Sec. 46.  Sections 1 through 42 of this act take effect July 1, 2001.

 

    NEW SECTION.  Sec. 47.  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.


    Passed the Senate February 12, 2000.

    Passed the House February 29, 2000.

Approved by the Governor March 17, 2000.

    Filed in Office of Secretary of State March 17, 2000.