BILL REQ. #: Z-0822.2
State of Washington | 58th Legislature | 2004 Regular Session |
Read first time 01/16/2004. Referred to Committee on Juvenile Justice & Family Law.
AN ACT Relating to victims of crime; amending RCW 13.40.010, 13.40.165, 13.40.200, 7.69.030, and 7.69A.030; reenacting and amending RCW 13.40.020, 13.40.080, 13.40.160, and 13.40.190; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 13.40.010 and 1997 c 338 s 8 are each amended to read
as follows:
(1) This chapter shall be known and cited as the Juvenile Justice
Act of 1977.
(2) It is the intent of the legislature that a system capable of
having primary responsibility for, being accountable for, and
responding to the needs of youthful offenders and their victims, as
defined by this chapter, be established. It is the further intent of
the legislature that youth, in turn, be held accountable for their
offenses and that communities, families, and the juvenile courts carry
out their functions consistent with this intent. To effectuate these
policies, the legislature declares the following to be equally
important purposes of this chapter:
(a) Protect the citizenry from criminal behavior;
(b) Provide for determining whether accused juveniles have
committed offenses as defined by this chapter;
(c) Make the juvenile offender accountable for his or her criminal
behavior;
(d) Provide for punishment commensurate with the age, crime, and
criminal history of the juvenile offender;
(e) Provide due process for juveniles alleged to have committed an
offense;
(f) Provide necessary treatment, supervision, and custody for
juvenile offenders;
(g) Provide for the handling of juvenile offenders by communities
whenever consistent with public safety;
(h) Provide for restitution to victims of crime;
(i) Develop effective standards and goals for the operation,
funding, and evaluation of all components of the juvenile justice
system and related services at the state and local levels;
(j) Provide for a clear policy to determine what types of offenders
shall receive punishment, treatment, or both, and to determine the
jurisdictional limitations of the courts, institutions, and community
services; ((and))
(k) Provide opportunities for victim participation in court
hearings on juvenile offender matters and ensure that Article I,
section 35 of the Washington state Constitution, the victim bill of
rights, is fully observed; and
(l) Encourage the parents, guardian, or custodian of the juvenile
and the juvenile's victim, to the extent the victim is able to or
chooses to, to actively participate in the juvenile justice process.
Sec. 2 RCW 13.40.020 and 2002 c 237 s 7 and 2002 c 175 s 19 are
each reenacted and amended to read as follows:
For the purposes of this chapter:
(1) "Community-based rehabilitation" means one or more of the
following: Employment; attendance of information classes; literacy
classes; counseling, outpatient substance abuse treatment programs,
outpatient mental health programs, anger management classes, education
or outpatient treatment programs to prevent animal cruelty, or other
services; or attendance at school or other educational programs
appropriate for the juvenile as determined by the school district.
Placement in community-based rehabilitation programs is subject to
available funds;
(2) Community-based sanctions may include one or more of the
following:
(a) A fine, not to exceed five hundred dollars;
(b) Community restitution not to exceed one hundred fifty hours of
community restitution;
(3) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender as punishment for committing an offense. Community
restitution may be performed through public or private organizations or
through work crews;
(4) "Community supervision" means an order of disposition by the
court of an adjudicated youth not committed to the department or an
order granting a deferred disposition. A community supervision order
for a single offense may be for a period of up to two years for a sex
offense as defined by RCW 9.94A.030 and up to one year for other
offenses. As a mandatory condition of any term of community
supervision, the court shall order the juvenile to refrain from
committing new offenses. As a mandatory condition of community
supervision, the court shall order the juvenile to comply with the
mandatory school attendance provisions of chapter 28A.225 RCW and to
inform the school of the existence of this requirement. Community
supervision is an individualized program comprised of one or more of
the following:
(a) Community-based sanctions;
(b) Community-based rehabilitation;
(c) Monitoring and reporting requirements;
(d) Posting of a probation bond;
(5) "Confinement" means physical custody by the department of
social and health services in a facility operated by or pursuant to a
contract with the state, or physical custody in a detention facility
operated by or pursuant to a contract with any county. The county may
operate or contract with vendors to operate county detention
facilities. The department may operate or contract to operate
detention facilities for juveniles committed to the department.
Pretrial confinement or confinement of less than thirty-one days
imposed as part of a disposition or modification order may be served
consecutively or intermittently, in the discretion of the court;
(6) "Court," when used without further qualification, means the
juvenile court judge(s) or commissioner(s);
(7) "Criminal history" includes all criminal complaints against the
respondent for which, prior to the commission of a current offense:
(a) The allegations were found correct by a court. If a respondent
is convicted of two or more charges arising out of the same course of
conduct, only the highest charge from among these shall count as an
offense for the purposes of this chapter; or
(b) The criminal complaint was diverted by a prosecutor pursuant to
the provisions of this chapter on agreement of the respondent and after
an advisement to the respondent that the criminal complaint would be
considered as part of the respondent's criminal history. A
successfully completed deferred adjudication that was entered before
July 1, 1998, or a deferred disposition shall not be considered part of
the respondent's criminal history;
(8) "Department" means the department of social and health
services;
(9) "Detention facility" means a county facility, paid for by the
county, for the physical confinement of a juvenile alleged to have
committed an offense or an adjudicated offender subject to a
disposition or modification order. "Detention facility" includes
county group homes, inpatient substance abuse programs, juvenile basic
training camps, and electronic monitoring;
(10) "Diversion unit" means any probation counselor who enters into
a diversion agreement with an alleged youthful offender, or any other
person, community accountability board, youth court under the
supervision of the juvenile court, or other entity except a law
enforcement official or entity, with whom the juvenile court
administrator has contracted to arrange and supervise such agreements
pursuant to RCW 13.40.080, or any person, community accountability
board, or other entity specially funded by the legislature to arrange
and supervise diversion agreements in accordance with the requirements
of this chapter. For purposes of this subsection, "community
accountability board" means a board comprised of members of the local
community in which the juvenile offender resides. The superior court
shall appoint the members. The boards shall consist of at least three
and not more than seven members. If possible, the board should include
a variety of representatives from the community, such as a law
enforcement officer, teacher or school administrator, high school
student, parent, and business owner, and should represent the cultural
diversity of the local community;
(11) "Foster care" means temporary physical care in a foster family
home or group care facility as defined in RCW 74.15.020 and licensed by
the department, or other legally authorized care;
(12) "Institution" means a juvenile facility established pursuant
to chapters 72.05 and 72.16 through 72.20 RCW;
(13) "Intensive supervision program" means a parole program that
requires intensive supervision and monitoring, offers an array of
individualized treatment and transitional services, and emphasizes
community involvement and support in order to reduce the likelihood a
juvenile offender will commit further offenses;
(14) "Juvenile," "youth," and "child" mean any individual who is
under the chronological age of eighteen years and who has not been
previously transferred to adult court pursuant to RCW 13.40.110 or who
is otherwise under adult court jurisdiction;
(15) "Juvenile offender" means any juvenile who has been found by
the juvenile court to have committed an offense, including a person
eighteen years of age or older over whom jurisdiction has been extended
under RCW 13.40.300;
(16) "Local sanctions" means one or more of the following: (a)
0-30 days of confinement; (b) 0-12 months of community supervision; (c)
0-150 hours of community restitution; or (d) $0-$500 fine;
(17) "Manifest injustice" means a disposition that would either
impose an excessive penalty on the juvenile or would impose a serious,
and clear danger to society in light of the purposes of this chapter;
(18) "Monitoring and reporting requirements" means one or more of
the following: Curfews; requirements to remain at home, school, work,
or court-ordered treatment programs during specified hours;
restrictions from leaving or entering specified geographical areas;
requirements to report to the probation officer as directed and to
remain under the probation officer's supervision; and other conditions
or limitations as the court may require which may not include
confinement;
(19) "Offense" means an act designated a violation or a crime if
committed by an adult under the law of this state, under any ordinance
of any city or county of this state, under any federal law, or under
the law of another state if the act occurred in that state;
(20) "Probation bond" means a bond, posted with sufficient security
by a surety justified and approved by the court, to secure the
offender's appearance at required court proceedings and compliance with
court-ordered community supervision or conditions of release ordered
pursuant to RCW 13.40.040 or 13.40.050. It also means a deposit of
cash or posting of other collateral in lieu of a bond if approved by
the court;
(21) "Respondent" means a juvenile who is alleged or proven to have
committed an offense;
(22) "Restitution" means financial reimbursement by the offender to
the victim, and shall be limited to easily ascertainable damages for
injury to or loss of property, actual expenses incurred for medical
treatment for physical injury to persons, lost wages resulting from
physical injury, and costs of the victim's counseling reasonably
related to the offense ((if the offense is a sex offense)).
Restitution shall not include reimbursement for damages for mental
anguish, pain and suffering, or other intangible losses. Nothing in
this chapter shall limit or replace civil remedies or defenses
available to the victim or offender;
(23) "Secretary" means the secretary of the department of social
and health services. "Assistant secretary" means the assistant
secretary for juvenile rehabilitation for the department;
(24) "Services" means services which provide alternatives to
incarceration for those juveniles who have pleaded or been adjudicated
guilty of an offense or have signed a diversion agreement pursuant to
this chapter;
(25) "Sex offense" means an offense defined as a sex offense in RCW
9.94A.030;
(26) "Sexual motivation" means that one of the purposes for which
the respondent committed the offense was for the purpose of his or her
sexual gratification;
(27) "Surety" means an entity licensed under state insurance laws
or by the state department of licensing, to write corporate, property,
or probation bonds within the state, and justified and approved by the
superior court of the county having jurisdiction of the case;
(28) "Victim" means any person who has sustained emotional,
psychological, physical, or financial injury to person or property as
a direct result or consequence of the crime charged. "Victim" may also
include a known parent or guardian of a victim who is a minor child or
is not a minor child but is incapacitated or incompetent;
(29) "Violation" means an act or omission, which if committed by an
adult, must be proven beyond a reasonable doubt, and is punishable by
sanctions which do not include incarceration;
(((29))) (30) "Violent offense" means a violent offense as defined
in RCW 9.94A.030;
(((30))) (31) "Youth court" means a diversion unit under the
supervision of the juvenile court.
Sec. 3 RCW 13.40.080 and 2002 c 237 s 8 and 2002 c 175 s 21 are
each reenacted and amended to read as follows:
(1) A diversion agreement shall be a contract between a juvenile
accused of an offense and a diversion unit whereby the juvenile agrees
to fulfill certain conditions in lieu of prosecution. Such agreements
may be entered into only after the prosecutor, or probation counselor
pursuant to this chapter, has determined that probable cause exists to
believe that a crime has been committed and that the juvenile committed
it. Such agreements shall be entered into as expeditiously as
possible.
(2) A diversion agreement shall be limited to one or more of the
following:
(a) Community restitution not to exceed one hundred fifty hours,
not to be performed during school hours if the juvenile is attending
school;
(b) Restitution shall be part of the diversion agreement, limited
to the amount of ((actual)) easily ascertainable loss incurred by any
victim;
(c) Attendance at up to ten hours of counseling and/or up to twenty
hours of educational or informational sessions at a community agency.
The educational or informational sessions may include sessions relating
to respect for self, others, and authority; victim awareness;
accountability; self-worth; responsibility; work ethics; good
citizenship; literacy; and life skills. For purposes of this section,
"community agency" may also mean a community-based nonprofit
organization, if approved by the diversion unit. The state shall not
be liable for costs resulting from the diversion unit exercising the
option to permit diversion agreements to mandate attendance at up to
ten hours of counseling and/or up to twenty hours of educational or
informational sessions;
(d) A fine, not to exceed one hundred dollars;
(e) Requirements to remain during specified hours at home, school,
or work, and restrictions on leaving or entering specified geographical
areas; and
(f) Upon request of any victim or witness, requirements to refrain
from any contact with victims or witnesses of offenses committed by the
juvenile.
(3) Notwithstanding the provisions of subsection (2) of this
section, youth courts are not limited to the conditions imposed by
subsection (2) of this section in imposing sanctions on juveniles
pursuant to RCW 13.40.630.
(4) In assessing periods of community restitution to be performed
and restitution to be paid by a juvenile who has entered into a
diversion agreement, the court officer to whom this task is assigned
shall consult with the juvenile's custodial parent or parents or
guardian and shall consult with the victims ((who have contacted the
diversion unit)) of the juvenile offender, advising of the diversion
process and offering victim impact letter forms and restitution claim
forms and, to the extent possible, shall involve members of the
community. Such members of the community shall meet with the juvenile
and advise the court officer as to the terms of the diversion agreement
and shall supervise the juvenile in carrying out its terms.
(5)(a) A diversion agreement may not exceed a period of six months
and may include a period extending beyond the eighteenth birthday of
the divertee.
(b) If additional time is necessary for the juvenile to complete
restitution to a victim, the time period limitations of this subsection
may be extended by an additional six months.
(c) If the juvenile has not paid the full amount of restitution by
the end of the additional six-month period, then the juvenile shall be
referred to the juvenile court for entry of an order establishing the
amount of restitution still owed to the victim. In this order, the
court shall also determine the terms and conditions of the restitution,
including a payment plan extending up to ten years if the court
determines that the juvenile does not have the means to make full
restitution over a shorter period. For the purposes of this subsection
(5)(c), the juvenile shall remain under the court's jurisdiction for a
maximum term of ten years after the juvenile's eighteenth birthday.
Prior to the expiration of the initial ten-year period, the juvenile
court may extend the judgment for restitution an additional ten years.
((The court may not require the juvenile to pay full or partial
restitution if the juvenile reasonably satisfies the court that he or
she does not have the means to make full or partial restitution and
could not reasonably acquire the means to pay the restitution over a
ten-year period.)) The county clerk shall make disbursements to
victims named in the order. The restitution to victims named in the
order shall be paid prior to any payment for other penalties or
monetary assessments. A juvenile under obligation to pay restitution
may petition the court for modification of the payment schedule of the
restitution order.
(6) The juvenile shall retain the right to be referred to the court
at any time prior to the signing of the diversion agreement.
(7) Divertees and potential divertees shall be afforded due process
in all contacts with a diversion unit regardless of whether the
juveniles are accepted for diversion or whether the diversion program
is successfully completed. Such due process shall include, but not be
limited to, the following:
(a) A written diversion agreement shall be executed stating all
conditions in clearly understandable language;
(b) Violation of the terms of the agreement shall be the only
grounds for termination;
(c) No divertee may be terminated from a diversion program without
being given a court hearing, which hearing shall be preceded by:
(i) Written notice of alleged violations of the conditions of the
diversion program; and
(ii) Disclosure of all evidence to be offered against the divertee;
(d) The hearing shall be conducted by the juvenile court and shall
include:
(i) Opportunity to be heard in person and to present evidence;
(ii) The right to confront and cross-examine all adverse witnesses;
(iii) A written statement by the court as to the evidence relied on
and the reasons for termination, should that be the decision; and
(iv) Demonstration by evidence that the divertee has substantially
violated the terms of his or her diversion agreement.
(e) The prosecutor may file an information on the offense for which
the divertee was diverted:
(i) In juvenile court if the divertee is under eighteen years of
age; or
(ii) In superior court or the appropriate court of limited
jurisdiction if the divertee is eighteen years of age or older.
(8) The diversion unit shall, subject to available funds, be
responsible for providing interpreters when juveniles need interpreters
to effectively communicate during diversion unit hearings or
negotiations.
(9) The diversion unit shall be responsible for advising a divertee
of his or her rights as provided in this chapter.
(10) The diversion unit may refer a juvenile to community-based
counseling or treatment programs.
(11) The right to counsel shall inure prior to the initial
interview for purposes of advising the juvenile as to whether he or she
desires to participate in the diversion process or to appear in the
juvenile court. The juvenile may be represented by counsel at any
critical stage of the diversion process, including intake interviews
and termination hearings. The juvenile shall be fully advised at the
intake of his or her right to an attorney and of the relevant services
an attorney can provide. For the purpose of this section, intake
interviews mean all interviews regarding the diversion agreement
process.
The juvenile shall be advised that a diversion agreement shall
constitute a part of the juvenile's criminal history as defined by RCW
13.40.020(7). A signed acknowledgment of such advisement shall be
obtained from the juvenile, and the document shall be maintained by the
diversion unit together with the diversion agreement, and a copy of
both documents shall be delivered to the prosecutor if requested by the
prosecutor. The supreme court shall promulgate rules setting forth the
content of such advisement in simple language.
(12) When a juvenile enters into a diversion agreement, the
juvenile court may receive only the following information for
dispositional purposes:
(a) The fact that a charge or charges were made;
(b) The fact that a diversion agreement was entered into;
(c) The juvenile's obligations under such agreement;
(d) Whether the alleged offender performed his or her obligations
under such agreement; and
(e) The facts of the alleged offense.
(13) A diversion unit may refuse to enter into a diversion
agreement with a juvenile. When a diversion unit refuses to enter a
diversion agreement with a juvenile, it shall immediately refer such
juvenile to the court for action and shall forward to the court the
criminal complaint and a detailed statement of its reasons for refusing
to enter into a diversion agreement. The diversion unit shall also
immediately refer the case to the prosecuting attorney for action if
such juvenile violates the terms of the diversion agreement.
(14) A diversion unit may, in instances where it determines that
the act or omission of an act for which a juvenile has been referred to
it involved no victim, or where it determines that the juvenile
referred to it has no prior criminal history and is alleged to have
committed an illegal act involving no threat of or instance of actual
physical harm and involving not more than fifty dollars in property
loss or damage and that there is no loss outstanding to the person or
firm suffering such damage or loss, counsel and release or release such
a juvenile without entering into a diversion agreement. A diversion
unit's authority to counsel and release a juvenile under this
subsection includes the authority to refer the juvenile to community-based counseling or treatment programs. Any juvenile released under
this subsection shall be advised that the act or omission of any act
for which he or she had been referred shall constitute a part of the
juvenile's criminal history as defined by RCW 13.40.020(7). A signed
acknowledgment of such advisement shall be obtained from the juvenile,
and the document shall be maintained by the unit, and a copy of the
document shall be delivered to the prosecutor if requested by the
prosecutor. The supreme court shall promulgate rules setting forth the
content of such advisement in simple language. A juvenile determined
to be eligible by a diversion unit for release as provided in this
subsection shall retain the same right to counsel and right to have his
or her case referred to the court for formal action as any other
juvenile referred to the unit.
(15) A diversion unit may supervise the fulfillment of a diversion
agreement entered into before the juvenile's eighteenth birthday and
which includes a period extending beyond the divertee's eighteenth
birthday.
(16) If a fine required by a diversion agreement cannot reasonably
be paid due to a change of circumstance, the diversion agreement may be
modified at the request of the divertee and with the concurrence of the
diversion unit to convert an unpaid fine into community restitution.
The modification of the diversion agreement shall be in writing and
signed by the divertee and the diversion unit. The number of hours of
community restitution in lieu of a monetary penalty shall be converted
at the rate of the prevailing state minimum wage per hour.
(17) Fines imposed under this section shall be collected and paid
into the county general fund in accordance with procedures established
by the juvenile court administrator under RCW 13.04.040 and may be used
only for juvenile services. In the expenditure of funds for juvenile
services, there shall be a maintenance of effort whereby counties
exhaust existing resources before using amounts collected under this
section.
Sec. 4 RCW 13.40.160 and 2003 c 378 s 3 and 2003 c 53 s 99 are
each reenacted and amended to read as follows:
(1) The standard range disposition for a juvenile adjudicated of an
offense is determined according to RCW 13.40.0357.
(a) When the court sentences an offender to a local sanction as
provided in RCW 13.40.0357 option A, the court shall impose a
determinate disposition within the standard ranges, except as provided
in subsection (2), (3), (4), (5), or (6) of this section. The
disposition may be comprised of one or more local sanctions.
(b) When the court sentences an offender to a standard range as
provided in RCW 13.40.0357 option A that includes a term of confinement
exceeding thirty days, commitment shall be to the department for the
standard range of confinement, except as provided in subsection (2),
(3), (4), (5), or (6) of this section.
(2) If the court concludes, and enters reasons for its conclusion,
that disposition within the standard range would effectuate a manifest
injustice the court shall impose a disposition outside the standard
range, as indicated in option D of RCW 13.40.0357. The court's finding
of manifest injustice shall be supported by clear and convincing
evidence.
A disposition outside the standard range shall be determinate and
shall be comprised of confinement or community supervision, or a
combination thereof. When a judge finds a manifest injustice and
imposes a sentence of confinement exceeding thirty days, the court
shall sentence the juvenile to a maximum term, and the provisions of
RCW 13.40.030(2) shall be used to determine the range. A disposition
outside the standard range is appealable under RCW 13.40.230 by the
state or the respondent. A disposition within the standard range is
not appealable under RCW 13.40.230.
(3) When a juvenile offender is found to have committed a sex
offense, other than a sex offense that is also a serious violent
offense as defined by RCW 9.94A.030, and has no history of a prior sex
offense, the court, on its own motion or the motion of the state or the
respondent, may order an examination to determine whether the
respondent is amenable to treatment.
The report of the examination shall include at a minimum the
following: The respondent's version of the facts and the official
version of the facts, the respondent's offense history, an assessment
of problems in addition to alleged deviant behaviors, the respondent's
social, educational, 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 respondent's
amenability to treatment and relative risk to the community. A
proposed treatment plan shall be provided and shall include, at a
minimum:
(a)(i) Frequency and type of contact between the 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,
legal guardians, or others;
(iv) Anticipated length of treatment; and
(v) 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.
After receipt of reports of the examination, the court shall then
consider whether the offender and the community will benefit from use
of this special sex offender disposition alternative and consider the
victim's opinion whether the offender should receive a treatment
disposition under this section. If the court determines that this
special sex offender disposition alternative is appropriate, then the
court shall impose a determinate disposition within the standard range
for the offense, or if the court concludes, and enters reasons for its
conclusions, that such disposition would cause a manifest injustice,
the court shall impose a disposition under option D, and the court may
suspend the execution of the disposition and place the offender on
community supervision for at least two years. As a condition of the
suspended disposition, the court may impose the conditions of community
supervision and other conditions, including up to thirty days of
confinement and requirements that the offender do any one or more of
the following:
(b)(i) Devote time to a specific education, employment, or
occupation;
(ii) Undergo available outpatient sex offender treatment for up to
two years, or inpatient sex offender treatment not to exceed the
standard range of confinement for that offense. A community mental
health center may not be used for such treatment unless it has an
appropriate program designed for sex offender treatment. The
respondent shall not change sex offender treatment providers or
treatment conditions without first notifying the prosecutor, the
probation counselor, and the court, and shall not change providers
without court approval after a hearing if the prosecutor or probation
counselor object to the change;
(iii) Remain within prescribed geographical boundaries and notify
the court or the probation counselor prior to any change in the
offender's address, educational program, or employment;
(iv) Report to the prosecutor and the probation counselor prior to
any change in a sex offender treatment provider. This change shall
have prior approval by the court;
(v) Report as directed to the court and a probation counselor;
(vi) Pay all court-ordered legal financial obligations, perform
community restitution, or any combination thereof;
(vii) Make restitution to the victim for the cost of any counseling
reasonably related to the offense;
(viii) Comply with the conditions of any court-ordered probation
bond; or
(ix) The court shall order that the offender ((may)) shall not
attend the public or approved private elementary, middle, or high
school attended by the victim or the victim's siblings. The parents or
legal guardians of the offender are responsible for transportation or
other costs associated with the offender's change of school that would
otherwise be paid by the school district. The court shall send notice
of the disposition and restriction on attending the same school as the
victim or victim's siblings to the public or approved private school
the juvenile will attend, if known, or if unknown, to the approved
private schools and the public school district board of directors of
the district in which the juvenile resides or intends to reside. This
notice must be sent at the earliest possible date but not later than
ten calendar days after entry of the disposition.
The sex offender treatment provider shall submit quarterly reports
on the respondent's progress in treatment to the court and the parties.
The reports shall reference the treatment plan and include at a minimum
the following: Dates of attendance, respondent's compliance with
requirements, treatment activities, the respondent's relative progress
in treatment, and any other material specified by the court at the time
of the disposition.
At the time of the disposition, the court may set treatment review
hearings as the court considers appropriate.
Except as provided in this subsection (3), 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. A sex offender
therapist who examines or treats a juvenile sex offender pursuant to
this subsection 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 (3)
and the rules adopted by the department of health.
If the offender violates any condition of the disposition or the
court finds that the respondent is failing to make satisfactory
progress in treatment, the court may revoke the suspension and order
execution of the disposition or the court may impose a penalty of up to
thirty days' confinement for violating conditions of the disposition.
The court may order both execution of the disposition and up to thirty
days' confinement for the violation of the conditions of the
disposition. The court shall give credit for any confinement time
previously served if that confinement was for the offense for which the
suspension is being revoked.
For purposes of this section, "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. "Victim"
may also include a known parent or guardian of a victim who is a minor
child unless the parent or guardian is the perpetrator of the offense.
A disposition entered under this subsection (3) is not appealable
under RCW 13.40.230.
(4) If the juvenile offender is subject to a standard range
disposition of local sanctions or 15 to 36 weeks of confinement and has
not committed an A- or B+ offense, the court may impose the disposition
alternative under RCW 13.40.165.
(5) If a juvenile is subject to a commitment of 15 to 65 weeks of
confinement, the court may impose the disposition alternative under RCW
13.40.--- (section 4, chapter 378, Laws of 2003).
(6) When the offender is subject to a standard range commitment of
15 to 36 weeks and is ineligible for a suspended disposition
alternative, a manifest injustice disposition below the standard range,
special sex offender disposition alternative, chemical dependency
disposition alternative, or mental health disposition alternative, the
court in a county with a pilot program under RCW 13.40.--- (section 5,
chapter 378, Laws of 2003) may impose the disposition alternative under
RCW 13.40.--- (section 5, chapter 378, Laws of 2003).
(7) RCW 13.40.193 shall govern the disposition of any juvenile
adjudicated of possessing a firearm in violation of RCW
9.41.040(2)(a)(iii) or any crime in which a special finding is entered
that the juvenile was armed with a firearm.
(8) Whenever a juvenile offender is entitled to credit for time
spent in detention prior to a dispositional order, the dispositional
order shall specifically state the number of days of credit for time
served.
(9) Except as provided under subsection (3), (4), (5), or (6) of
this section, or option B of RCW 13.40.0357, or RCW 13.40.127, the
court shall not suspend or defer the imposition or the execution of the
disposition.
(10) In no case shall the term of confinement imposed by the court
at disposition exceed that to which an adult could be subjected for the
same offense.
Sec. 5 RCW 13.40.165 and 2003 c 378 s 6 are each amended to read
as follows:
(1) The purpose of this disposition alternative is to ensure that
successful treatment options to reduce recidivism are available to
eligible youth, pursuant to RCW 70.96A.520. The court must consider
eligibility for the chemical dependency disposition alternative when a
juvenile offender is subject to a standard range disposition of local
sanctions or 15 to 36 weeks of confinement and has not committed an A-or B+ offense, other than a first time B+ offense under chapter 69.50
RCW. The court, on its own motion or the motion of the state or the
respondent if the evidence shows that the offender may be chemically
dependent or substance abusing, may order an examination by a chemical
dependency counselor from a chemical dependency treatment facility
approved under chapter 70.96A RCW to determine if the youth is
chemically dependent or substance abusing. The offender shall pay the
cost of any examination ordered under this subsection unless the court
finds that the offender is indigent and no third party insurance
coverage is available, in which case the state shall pay the cost.
(2) The report of the examination shall include at a minimum the
following: The respondent's version of the facts and the official
version of the facts, the respondent's offense history, an assessment
of drug-alcohol problems and previous treatment attempts, the
respondent's social, educational, and employment situation, and other
evaluation measures used. The report shall set forth the sources of
the examiner's information.
(3) The examiner shall assess and report regarding the respondent's
relative risk to the community. A proposed treatment plan shall be
provided and shall include, at a minimum:
(a) Whether inpatient and/or outpatient treatment is recommended;
(b) Availability of appropriate treatment;
(c) Monitoring plans, including any requirements regarding living
conditions, lifestyle requirements, and monitoring by family members,
legal guardians, or others;
(d) Anticipated length of treatment; and
(e) Recommended crime-related prohibitions.
(4) The court on its own motion may order, or on a motion by the
state or the respondent shall order, a second examination. The
evaluator shall be selected by the party making the motion. The
requesting party shall pay the cost of any examination ordered under
this subsection unless the requesting party is the offender and the
court finds that the offender is indigent and no third party insurance
coverage is available, in which case the state shall pay the cost.
(5)(a) After receipt of reports of the examination, the court shall
then consider whether the offender and the community will benefit from
use of this chemical dependency disposition alternative and consider
the victim's opinion whether the offender should receive a treatment
disposition under this section.
(b) If the court determines that this chemical dependency
disposition alternative is appropriate, then the court shall impose the
standard range for the offense, or if the court concludes, and enters
reasons for its conclusion, that such disposition would effectuate a
manifest injustice, the court shall impose a disposition above the
standard range as indicated in option D of RCW 13.40.0357 if the
disposition is an increase from the standard range and the confinement
of the offender does not exceed a maximum of fifty-two weeks, suspend
execution of the disposition, and place the offender on community
supervision for up to one year. As a condition of the suspended
disposition, the court shall require the offender to undergo available
outpatient drug/alcohol treatment and/or inpatient drug/alcohol
treatment. For purposes of this section, inpatient treatment may not
exceed ninety days. As a condition of the suspended disposition, the
court may impose conditions of community supervision and other
sanctions, including up to thirty days of confinement, one hundred
fifty hours of community restitution, and payment of legal financial
obligations and restitution.
(6) The drug/alcohol treatment provider shall submit monthly
reports on the respondent's progress in treatment to the court and the
parties. The reports shall reference the treatment plan and include at
a minimum the following: Dates of attendance, respondent's compliance
with requirements, treatment activities, the respondent's relative
progress in treatment, and any other material specified by the court at
the time of the disposition.
At the time of the disposition, the court may set treatment review
hearings as the court considers appropriate.
If the offender violates any condition of the disposition or the
court finds that the respondent is failing to make satisfactory
progress in treatment, the court may impose sanctions pursuant to RCW
13.40.200 or revoke the suspension and order execution of the
disposition. The court shall give credit for any confinement time
previously served if that confinement was for the offense for which the
suspension is being revoked.
(7) For purposes of this section, "victim" means any person who has
sustained emotional, psychological, physical, or financial injury to
person or property as a direct result of or consequence of the offense
charged. "Victim" may also include a known parent or guardian of a
victim who is a minor child or is not a minor child but is
incapacitated, incompetent, disabled, or deceased.
(8) Whenever a juvenile offender is entitled to credit for time
spent in detention prior to a dispositional order, the dispositional
order shall specifically state the number of days of credit for time
served.
(9) In no case shall the term of confinement imposed by the court
at disposition exceed that to which an adult could be subjected for the
same offense.
(10) A disposition under this section is not appealable under RCW
13.40.230.
Sec. 6 RCW 13.40.190 and 1997 c 338 s 29 and 1997 c 121 s 9 are
each reenacted and amended to read as follows:
(1) In its dispositional order, the court shall require the
respondent to make restitution to any persons who have suffered loss or
damage as a result of the offense committed by the respondent. In
addition, restitution may be ordered for 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, pursuant to a
plea agreement, are not prosecuted. The payment of restitution shall
be in addition to any punishment which is imposed pursuant to the other
provisions of this chapter. The court may determine the amount, terms,
and conditions of the restitution including a payment plan extending up
to ten years if the court determines that the respondent does not have
the means to make full restitution over a shorter period. Restitution
may include the costs of counseling reasonably related to the offense.
If the respondent participated in the crime with another person or
other persons, all such participants shall be jointly and severally
responsible for the payment of restitution. For the purposes of this
section, the respondent shall remain under the court's jurisdiction for
a maximum term of ten years after the respondent's eighteenth birthday.
Prior to the expiration of the ten-year period, the juvenile court may
extend the judgment for the payment of restitution for an additional
ten years.
(2) Regardless of the provisions of subsection (1) 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
disposition order 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.
(3) If an order includes restitution as one of the monetary
assessments, the county clerk shall make disbursements to victims named
in the order. The restitution to victims named in the order shall be
paid prior to any payment for other penalties or monetary assessments.
(4) A respondent under obligation to pay restitution may petition
the court for modification of the restitution ((order)) payment
schedule.
Sec. 7 RCW 13.40.200 and 2002 c 175 s 25 are each amended to read
as follows:
(1) When a respondent fails to comply with an order of restitution,
community supervision, penalty assessments, or confinement of less than
thirty days, the court upon motion of the prosecutor or its own motion,
may modify the order after a hearing on the violation.
(2) The hearing shall afford the respondent the same due process of
law as would be afforded an adult probationer. The court may issue a
summons or a warrant to compel the respondent's appearance. The state
shall have the burden of proving by a preponderance of the evidence the
fact of the violation. The respondent shall have the burden of showing
that the violation was not a willful refusal to comply with the terms
of the order. If a respondent has failed to pay a fine, penalty
assessments, or restitution or to perform community restitution hours,
as required by the court, it shall be the respondent's burden to show
that he or she did not have the means and could not reasonably have
acquired the means to pay the fine, penalty assessments, or restitution
or perform community restitution.
(3) If the court finds that a respondent has willfully violated the
terms of an order pursuant to subsections (1) and (2) of this section,
it may impose a penalty of up to thirty days' confinement. Penalties
for multiple violations occurring prior to the hearing shall not be
aggregated to exceed thirty days' confinement. Regardless of the
number of times a respondent is brought to court for violations of the
terms of a single disposition order, the combined total number of days
spent by the respondent in detention shall never exceed the maximum
term to which an adult could be sentenced for the underlying offense.
(4) If a respondent has been ordered to pay a fine or monetary
penalty and due to a change of circumstance cannot reasonably comply
with the order, the court, upon motion of the respondent, may order
that the unpaid fine or monetary penalty be converted to community
restitution unless the monetary penalty is the crime victim penalty
assessment, which cannot be converted, waived, or otherwise modified,
except for schedule of payment. The number of hours of community
restitution in lieu of a monetary penalty or fine shall be converted at
the rate of the prevailing state minimum wage per hour. The monetary
penalties or fines collected shall be deposited in the county general
fund. A failure to comply with an order under this subsection shall be
deemed a failure to comply with an order of community supervision and
may be proceeded against as provided in this section.
(5) When a respondent has willfully violated the terms of a
probation bond, the court may modify, revoke, or retain the probation
bond as provided in RCW 13.40.054.
Sec. 8 RCW 7.69.030 and 1999 c 323 s 2 are each amended to read
as follows:
There shall be a reasonable effort made to ensure that victims,
survivors of victims, and witnesses of crimes have the following
rights, which apply to any criminal court and/or juvenile court
proceeding:
(1) With respect to victims of violent or sex crimes, to receive,
at the time of reporting the crime to law enforcement officials, a
written statement of the rights of crime victims as provided in this
chapter. The written statement shall include the name, address, and
telephone number of a county or local crime victim/witness program, if
such a crime victim/witness program exists in the county;
(2) To be informed by local law enforcement agencies or the
prosecuting attorney of the final disposition of the case in which the
victim, survivor, or witness is involved;
(3) To be notified by the party who issued the subpoena that a
court proceeding to which they have been subpoenaed will not occur as
scheduled, in order to save the person an unnecessary trip to court;
(4) To receive protection from harm and threats of harm arising out
of cooperation with law enforcement and prosecution efforts, and to be
provided with information as to the level of protection available;
(5) To be informed of the procedure to be followed to apply for and
receive any witness fees to which they are entitled;
(6) To be provided, whenever practical, a secure waiting area
during court proceedings that does not require them to be in close
proximity to defendants and families or friends of defendants;
(7) To have any stolen or other personal property expeditiously
returned by law enforcement agencies or the superior court when no
longer needed as evidence. When feasible, all such property, except
weapons, currency, contraband, property subject to evidentiary
analysis, and property of which ownership is disputed, shall be
photographed and returned to the owner within ten days of being taken;
(8) To be provided with appropriate employer intercession services
to ensure that employers of victims, survivors of victims, and
witnesses of crime will cooperate with the criminal justice process in
order to minimize an employee's loss of pay and other benefits
resulting from court appearance;
(9) To access to immediate medical assistance and not to be
detained for an unreasonable length of time by a law enforcement agency
before having such assistance administered. However, an employee of
the law enforcement agency may, if necessary, accompany the person to
a medical facility to question the person about the criminal incident
if the questioning does not hinder the administration of medical
assistance;
(10) With respect to victims of violent and sex crimes, to have a
crime victim advocate from a crime victim/witness program, or any other
support person of the victim's choosing, present at any prosecutorial
or defense interviews with the victim, and at any judicial proceedings
related to criminal acts committed against the victim. This subsection
applies if practical and if the presence of the crime victim advocate
does not cause any unnecessary delay in the investigation or
prosecution of the case. The role of the crime victim advocate is to
provide emotional support to the crime victim;
(11) With respect to victims and survivors of victims, to be
physically present in court during trial, or if subpoenaed to testify,
to be scheduled as early as practical in the proceedings in order to be
physically present during trial after testifying and not to be excluded
solely because they have testified;
(12) With respect to victims and survivors of victims, to be
informed by the prosecuting attorney of the date, time, and place of
the trial and of the sentencing hearing for felony convictions upon
request by a victim or survivor;
(13) To submit a victim impact statement or report to the court,
with the assistance of the prosecuting attorney if requested, which
shall be included in all presentence reports and permanently included
in the files and records accompanying the offender committed to the
custody of a state agency or institution;
(14) With respect to victims and survivors of victims, to present
a statement personally or by representation, at the sentencing hearing
for felony convictions;
(15) With respect to victims and survivors of victims, to entry of
an order of restitution by the court in all felony cases, even when the
offender is sentenced to confinement, unless extraordinary
circumstances exist which make restitution inappropriate in the court's
judgment; and
(16) With respect to victims and survivors of victims, to present
a statement in person, via audio or videotape, in writing or by
representation at any hearing conducted regarding an application for
pardon or commutation of sentence.
Sec. 9 RCW 7.69A.030 and 1997 c 283 s 2 are each amended to read
as follows:
In addition to the rights of victims and witnesses provided for in
RCW 7.69.030, there shall be every reasonable effort made by law
enforcement agencies, prosecutors, and judges to assure that child
victims and witnesses are afforded the rights enumerated in this
section. Except as provided in RCW 7.69A.050 regarding child victims
or child witnesses of violent crimes, sex crimes, or child abuse, the
enumeration of rights shall not be construed to create substantive
rights and duties, and the application of an enumerated right in an
individual case is subject to the discretion of the law enforcement
agency, prosecutor, or judge. Child victims and witnesses have the
following rights, which apply to any criminal court and/or juvenile
court proceeding:
(1) To have explained in language easily understood by the child,
all legal proceedings and/or police investigations in which the child
may be involved.
(2) With respect to child victims of sex or violent crimes or child
abuse, to have a crime victim advocate from a crime victim/witness
program, or any other support person of the victim's choosing, present
at any prosecutorial or defense interviews with the child victim. This
subsection applies if practical and if the presence of the crime victim
advocate does not cause any unnecessary delay in the investigation or
prosecution of the case. The role of the crime victim advocate is to
provide emotional support to the child victim and to promote the
child's feelings of security and safety.
(3) To be provided, whenever possible, a secure waiting area during
court proceedings and to have an advocate or support person remain with
the child prior to and during any court proceedings.
(4) To not have the names, addresses, nor photographs of the living
child victim or witness disclosed by any law enforcement agency,
prosecutor's office, or state agency without the permission of the
child victim, child witness, parents, or legal guardians to anyone
except another law enforcement agency, prosecutor, defense counsel, or
private or governmental agency that provides services to the child
victim or witness.
(5) To allow an advocate to make recommendations to the prosecuting
attorney about the ability of the child to cooperate with prosecution
and the potential effect of the proceedings on the child.
(6) To allow an advocate to provide information to the court
concerning the child's ability to understand the nature of the
proceedings.
(7) To be provided information or appropriate referrals to social
service agencies to assist the child and/or the child's family with the
emotional impact of the crime, the subsequent investigation, and
judicial proceedings in which the child is involved.
(8) To allow an advocate to be present in court while the child
testifies in order to provide emotional support to the child.
(9) To provide information to the court as to the need for the
presence of other supportive persons at the court proceedings while the
child testifies in order to promote the child's feelings of security
and safety.
(10) To allow law enforcement agencies the opportunity to enlist
the assistance of other professional personnel such as child protection
services, victim advocates or prosecutorial staff trained in the
interviewing of the child victim.
(11) With respect to child victims of violent or sex crimes or
child abuse, to receive either directly or through the child's parent
or guardian if appropriate, at the time of reporting the crime to law
enforcement officials, a written statement of the rights of child
victims as provided in this chapter. The written statement shall
include the name, address, and telephone number of a county or local
crime victim/witness program, if such a crime victim/witness program
exists in the county.
NEW SECTION. Sec. 10 This act takes effect July 1, 2004.