BILL REQ. #: S-1342.1
| State of Washington | 58th Legislature | 2003 Regular Session |
READ FIRST TIME 02/12/03.
AN ACT Relating to technical, clarifying, and nonsubstantive amendments to chapter 12, Laws of 2001 2nd sp. sess.; amending RCW 71.09.250, 71.09.255, 71.09.265, 71.09.275, 71.09.290, 71.09.300, 71.09.325, 71.09.342, 9.95.017, 9.95.055, 9.95.070, 9.95.110, 9.95.120, 9.95.435, 9.95.440, 18.155.030, and 71.09.270; reenacting and amending RCW 71.09.020; and adding a new section to chapter 72.09 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 71.09.020 and 2002 c 68 s 4 and 2002 c 58 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) "Department" means the department of social and health
services.
(2) "Health care facility" means any hospital, hospice care center,
licensed or certified health care facility, health maintenance
organization regulated under chapter 48.46 RCW, federally qualified
health maintenance organization, federally approved renal dialysis
center or facility, or federally approved blood bank.
(3) "Health care practitioner" means an individual or firm licensed
or certified to engage actively in a regulated health profession.
(4) "Health care services" means those services provided by health
professionals licensed pursuant to RCW 18.120.020(4).
(5) "Health profession" means those licensed or regulated
professions set forth in RCW 18.120.020(4).
(6) "Less restrictive alternative" means court-ordered treatment in
a setting less restrictive than total confinement which satisfies the
conditions set forth in RCW 71.09.092.
(7) "Likely to engage in predatory acts of sexual violence if not
confined in a secure facility" means that the person more probably than
not will engage in such acts if released unconditionally from detention
on the sexually violent predator petition. Such likelihood must be
evidenced by a recent overt act if the person is not totally confined
at the time the petition is filed under RCW 71.09.030.
(8) "Mental abnormality" means a congenital or acquired condition
affecting the emotional or volitional capacity which predisposes the
person to the commission of criminal sexual acts in a degree
constituting such person a menace to the health and safety of others.
(9) "Predatory" means acts directed towards: (a) Strangers; (b)
individuals with whom a relationship has been established or promoted
for the primary purpose of victimization; or (c) persons of casual
acquaintance with whom no substantial personal relationship exists.
(10) "Recent overt act" means any act or threat that has either
caused harm of a sexually violent nature or creates a reasonable
apprehension of such harm in the mind of an objective person who knows
of the history and mental condition of the person engaging in the act.
(11) "Risk potential activity" or "risk potential facility" means
an activity or facility that provides a higher incidence of risk to the
public from persons conditionally released from the special commitment
center. Risk potential activities and facilities include: Public and
private schools, school bus stops, licensed day care and licensed
preschool facilities, public parks, publicly dedicated trails, sports
fields, playgrounds, recreational and community centers, churches,
synagogues, temples, mosques, public libraries, and others identified
by the department following the hearings on a potential site required
in RCW 71.09.315. For purposes of this chapter, "school bus stops"
does not include bus stops established primarily for public transit.
(12) "Secretary" means the secretary of social and health services
or the secretary's designee.
(13) "Secure facility" means a residential facility for persons
civilly confined under the provisions of this chapter that includes
security measures sufficient to protect the community. Such facilities
include total confinement facilities, secure community transition
facilities, and any residence used as a court-ordered placement under
RCW 71.09.096.
(14) "Secure community transition facility" means a residential
facility for persons civilly committed and conditionally released to a
less restrictive alternative under this chapter. A secure community
transition facility has supervision and security, and either provides
or ensures the provision of sex offender treatment services. Secure
community transition facilities include but are not limited to the
((facilities)) facility established pursuant to RCW 71.09.250(1)(a)(i)
and any community-based facilities established under this chapter and
operated by the secretary or under contract with the secretary.
(15) "Sexually violent offense" means an act committed on, before,
or after July 1, 1990, that is: (a) An act defined in Title 9A RCW as
rape in the first degree, rape in the second degree by forcible
compulsion, rape of a child in the first or second degree, statutory
rape in the first or second degree, indecent liberties by forcible
compulsion, indecent liberties against a child under age fourteen,
incest against a child under age fourteen, or child molestation in the
first or second degree; (b) a felony offense in effect at any time
prior to July 1, 1990, that is comparable to a sexually violent offense
as defined in (a) of this subsection, or any federal or out-of-state
conviction for a felony offense that under the laws of this state would
be a sexually violent offense as defined in this subsection; (c) an act
of murder in the first or second degree, assault in the first or second
degree, assault of a child in the first or second degree, kidnapping in
the first or second degree, burglary in the first degree, residential
burglary, or unlawful imprisonment, which act, either at the time of
sentencing for the offense or subsequently during civil commitment
proceedings pursuant to this chapter, has been determined beyond a
reasonable doubt to have been sexually motivated, as that term is
defined in RCW 9.94A.030; or (d) an act as described in chapter 9A.28
RCW, that is an attempt, criminal solicitation, or criminal conspiracy
to commit one of the felonies designated in (a), (b), or (c) of this
subsection.
(16) "Sexually violent predator" means any person who has been
convicted of or charged with a crime of sexual violence and who suffers
from a mental abnormality or personality disorder which makes the
person likely to engage in predatory acts of sexual violence if not
confined in a secure facility.
(17) "Total confinement facility" means a secure facility that
provides supervision and sex offender treatment services in a total
confinement setting. Total confinement facilities include the special
commitment center and any similar facility designated as a ((secure))
total confinement facility by the secretary.
Sec. 2 RCW 71.09.250 and 2001 2nd sp.s. c 12 s 201 are each
amended to read as follows:
(1)(a) The secretary is authorized to site, construct, occupy, and
operate (i) a secure community transition facility on McNeil Island for
persons authorized to petition for a less restrictive alternative under
RCW 71.09.090(1) and who are conditionally released; and (ii) a special
commitment center on McNeil Island with up to four hundred four beds as
a total confinement facility under this chapter, subject to
appropriated funding for those purposes. The secure community
transition facility shall be authorized for the number of beds needed
to ensure compliance with the orders of the superior courts under this
chapter and the federal district court for the western district of
Washington. The total number of beds in the secure community
transition facility shall be limited to twenty-four, consisting of up
to fifteen transitional beds ((shall be limited to fifteen)) and up to
nine pretransitional beds. The residents occupying ((these)) the
transitional beds shall be the only residents eligible for transitional
services occurring in Pierce county. In no event shall more than
fifteen residents of the secure community transition facility be
participating in off-island transitional, educational, or employment
activity at the same time in Pierce county. The department shall
provide the Pierce county sheriff, or his or her designee, with a list
of the fifteen residents so designated, along with their photographs
and physical descriptions, and ((it)) the list shall be immediately
updated whenever a residential change occurs. The Pierce county
sheriff, or his or her designee, shall be provided an opportunity to
confirm the residential status of each resident leaving McNeil Island.
(b) For purposes of this subsection, "transitional beds" means beds
only for residents ((in halfway house status)) who are judged by a
qualified expert to be suitable to leave the island for treatment,
education, and employment.
(2)(a) The secretary is authorized to site, either within the
secure community transition facility established pursuant to subsection
(1)(a)(i) of this section, or within the special commitment center, up
to nine pretransitional beds.
(b) Residents assigned to pretransitional beds shall not be
permitted to leave McNeil Island for education, employment, treatment,
or community activities in Pierce county.
(c) For purposes of this subsection, "pretransitional beds" means
beds for residents whose progress toward a less secure residential
environment and transition into more complete community involvement is
projected to take substantially longer than a typical resident of the
special commitment center.
(3) Notwithstanding RCW 36.70A.103 or any other law, this statute
preempts and supersedes local plans, development regulations,
permitting requirements, inspection requirements, and all other laws as
necessary to enable the secretary to site, construct, occupy, and
operate a secure community transition facility on McNeil Island and a
total confinement facility on McNeil Island.
(4) To the greatest extent possible, until June 30, 2003, persons
who were not civilly committed from the county in which the secure
community transition facility established pursuant to subsection (1) of
this section is located may not be conditionally released to a setting
in that same county less restrictive than that facility.
(5) As of June 26, 2001, the state shall immediately cease any
efforts in effect on such date to site secure community transition
facilities, other than the facility authorized by subsection (1) of
this section, and shall instead site such facilities in accordance with
the provisions of this section.
(6) The department must:
(a) Identify the minimum and maximum number of secure community
transition facility beds in addition to the facility established under
subsection (1) of this section that may be necessary for the period of
May 2004 through May 2007 and provide notice of these numbers to all
counties by August 31, 2001; and
(b) ((In consultation with the joint select committee established
in section 225, chapter 12, Laws of 2001 2nd sp. sess.,)) Develop and
publish policy guidelines for the siting and operation of secure
community transition facilities ((by October 1, 2001; and)).
(c) Provide a status report to the appropriate committees of the
legislature by December 1, 2002, on the development of facilities under
the incentive program established in RCW 71.09.255. The report shall
include a projection of the anticipated number of secure community
transition facility beds that will become operational between May 2004
and May 2007. If it appears that an insufficient number of beds will
be operational, the department's report shall recommend a progression
of methods to facilitate siting in counties and cities including, if
necessary, preemption of local land use planning process and other
laws
(7)(a) The total number of secure community transition facility
beds that may be required to be sited in a county between June 26,
2001, and June 30, 2008, may be no greater than the total number of
persons civilly committed from that county, or detained at the special
commitment center under a pending civil commitment petition from that
county where a finding of probable cause had been made on April 1,
2001. The total number of secure community transition facility beds
required to be sited in each county between July 1, 2008, and June 30,
2015, may be no greater than the total number of persons civilly
committed from that county or detained at the special commitment center
under a pending civil commitment petition from that county where a
finding of probable cause had been made as of July 1, 2008.
(b) Counties and cities that provide secure community transition
facility beds above the maximum number that they could be required to
site under this subsection are eligible for a bonus grant under the
incentive provisions in RCW 71.09.255. The county where the special
commitment center is located shall receive this bonus grant for the
number of beds in the facility established in subsection (1) of this
section in excess of the maximum number established by this subsection.
(c) No secure community transition facilities in addition to the
one established in subsection (1) of this section may be required to be
sited in the county where the special commitment center is located
until after June 30, 2008, provided however, that the county and its
cities may elect to site additional secure community transition
facilities and shall be eligible under the incentive provisions of RCW
71.09.255 for any additional facilities meeting the requirements of
that section.
(8) In identifying potential sites within a county for the location
of a secure community transition facility, the department shall work
with and assist local governments to provide for the equitable
distribution of such facilities. In coordinating and deciding upon the
siting of secure community transition facilities, great weight shall be
given by the county and cities within the county to:
(a) The number and location of existing residential facility beds
operated by the department of corrections or the mental health division
of the department of social and health services in each jurisdiction in
the county; and
(b) The number of registered sex offenders classified as level II
or level III and the number of sex offenders registered as homeless
residing in each jurisdiction in the county.
(9)(a) "Equitable distribution" means siting or locating secure
community transition facilities in a manner that will not cause a
disproportionate grouping of similar facilities either in any one
county, or in any one jurisdiction or community within a county, as
relevant; and
(b) "Jurisdiction" means a city, town, or geographic area of a
county in which ((district)) distinct political or judicial authority
may be exercised.
Sec. 3 RCW 71.09.255 and 2002 c 68 s 8 are each amended to read
as follows:
(1) Upon receiving the notification required by RCW 71.09.250,
counties must promptly notify the cities within the county of the
maximum number of secure community transition facility beds that may be
required and the projected number of beds to be needed in that county.
(2) The incentive grants and payments provided under this section
are subject to the following provisions:
(a) Counties and the cities within the county must notify each
other of siting plans to promote the establishment and equitable
distribution of secure community transition facilities;
(b) Development regulations, ordinances, plans, laws, and criteria
established for siting must be consistent with statutory requirements
and ((rules)) policies applicable to siting and operating secure
community transition facilities;
(c) The minimum size for any facility is three beds; and
(d) The department must approve any sites selected.
(3) Any county or city that makes a commitment to initiate the
process to site one or more secure community transition facilities by
one hundred twenty days after March 21, 2002, shall receive a planning
grant as proposed and approved by the department of community, trade,
and economic development.
(4) Any county or city that has issued all necessary permits by May
1, 2003, for one or more secure community transition facilities that
comply with the requirements of this section shall receive an incentive
grant in the amount of fifty thousand dollars for each bed sited.
(5) To encourage the rapid permitting of sites, any county or city
that has issued all necessary permits by January 1, 2003, for one or
more secure community transition facilities that comply with the
requirements of this section shall receive a bonus in the amount of
twenty percent of the amount provided under subsection (4) of this
section.
(6) Any county or city that establishes secure community transition
facility beds in excess of the maximum number that could be required to
be sited in that county shall receive a bonus payment of one hundred
thousand dollars for each bed established in excess of the maximum
requirement.
(7) No payment shall be made under subsection (4), (5), or (6) of
this section until all necessary permits have been issued.
(8) The funds available to counties and cities under this section
are contingent upon funds being appropriated by the legislature.
Sec. 4 RCW 71.09.265 and 2001 2nd sp.s. c 12 s 208 are each
amended to read as follows:
(1) The department shall make reasonable efforts to distribute the
impact of the employment, education, and social services needs of the
residents of the secure community transition facility established
pursuant to RCW 71.09.250(1)(a)(i) among the adjoining counties and not
to concentrate the residents' use of resources in any one community.
The department's efforts to distribute the impact is limited to
locations within a reasonable commute.
(2) The department shall develop policies to ensure that, to the
extent possible, placement of persons eligible in the future for
conditional release to a setting less restrictive than the facility
established pursuant to RCW 71.09.250(1)(a)(i) will be equitably
distributed among the counties and within jurisdictions in the county.
Sec. 5 RCW 71.09.275 and 2001 2nd sp.s. c 12 s 211 are each
amended to read as follows:
(1) ((By August 1, 2001, the department must provide the
appropriate committees of the legislature with a transportation plan to
address the issues of coordinating the movement of residents of the
secure community transition facility established pursuant to RCW
71.09.250(1) between McNeil Island and the mainland with the movement
of others who must use the same docks or equipment within the funds
appropriated for this purpose.)) If the department does not provide a separate vessel for
transporting residents of the secure community transition facility
established in RCW 71.09.250(1) between McNeil Island and the mainland,
the ((
(2)plan)) department shall ((include at least the following
components)):
(a) ((The)) Separate residents ((shall be separated)) from minors
and vulnerable adults, except vulnerable adults who have been found to
be sexually violent predators.
(b) ((The)) Not transport residents ((shall not be transported))
during times when children are normally coming to and from the mainland
for school.
(((3))) (2) The department shall designate a separate waiting area
at the points of debarkation, and residents shall be required to remain
in this area while awaiting transportation.
(((4))) (3) The department shall provide law enforcement agencies
in the counties and cities in which residents of the secure community
transition facility established pursuant to RCW 71.09.250(1)(a)(i)
regularly participate in employment, education, or social services, or
through which these persons are regularly transported, with a copy of
the court's order of conditional release with respect to these persons.
Sec. 6 RCW 71.09.290 and 2001 2nd sp.s. c 12 s 214 are each
amended to read as follows:
The secretary shall establish policy guidelines for the siting of
secure community transition facilities, other than the secure community
transition facility established pursuant to RCW 71.09.250(1)(a)(i),
which shall include at least the following minimum requirements:
(1) The following criteria must be considered prior to any real
property being listed for consideration for the location of or use as
a secure community transition facility:
(a) The proximity and response time criteria established under RCW
71.09.285;
(b) The site or building is available for lease for the anticipated
use period or for purchase;
(c) Security monitoring services and appropriate back-up systems
are available and reliable;
(d) Appropriate mental health and sex offender treatment providers
must be available within a reasonable commute; and
(e) Appropriate permitting for a secure community transition
facility must be possible under the zoning code of the local
jurisdiction.
(2) For sites which meet the criteria of subsection (1) of this
section, the department shall analyze and compare the criteria in
subsections (3) through (5) of this section using the method
established in RCW 71.09.285.
(3) Public safety and security criteria shall include at least the
following:
(a) Whether limited visibility between the facility and adjacent
properties can be achieved prior to placement of any person;
(b) The distance from, and number of, risk potential activities and
facilities, as measured using the ((rules)) policies adopted under RCW
71.09.285;
(c) The existence of or ability to establish barriers between the
site and the risk potential facilities and activities;
(d) Suitability of the buildings to be used for the secure
community transition facility with regard to existing or feasibly
modified features; and
(e) The availability of electronic monitoring that allows a
resident's location to be determined with specificity.
(4) Site characteristics criteria shall include at least the
following:
(a) Reasonableness of rental, lease, or sale terms including length
and renewability of a lease or rental agreement;
(b) Traffic and access patterns associated with the real property;
(c) Feasibility of complying with zoning requirements within the
necessary time frame; and
(d) A contractor or contractors are available to install, monitor,
and repair the necessary security and alarm systems.
(5) Program characteristics criteria shall include at least the
following:
(a) Reasonable proximity to available medical, mental health, sex
offender, and chemical dependency treatment providers and facilities;
(b) Suitability of the location for programming, staffing, and
support considerations;
(c) Proximity to employment, educational, vocational, and other
treatment plan components.
(6) For purposes of this section "available" or "availability" of
qualified treatment providers includes provider qualifications and
willingness to provide services, average commute time, and cost of
services.
Sec. 7 RCW 71.09.300 and 2001 2nd sp.s. c 12 s 216 are each
amended to read as follows:
(((1))) Secure community transition facilities shall meet the
following minimum staffing requirements:
(((a))) (1) At any time the census of a facility is six or fewer
residents, the facility shall maintain a minimum staffing ratio of one
staff per resident during normal waking hours and two awake staff per
three residents during normal sleeping hours.
(((b))) (2) At any time the census of a facility is six or fewer
residents, all staff shall be classified as residential rehabilitation
counselor II or have a classification that indicates ((a)) an
equivalent or higher level of skill, experience, and training.
(((c))) (3) Before being assigned to a facility, all staff shall
have training in sex offender issues, self-defense, and crisis
deescalation skills in addition to departmental orientation and, as
appropriate, management training. All staff with resident treatment or
care duties must participate in ongoing in-service training.
(((d))) (4) All staff must pass a departmental background check and
the check is not subject to the limitations in chapter 9.96A RCW. A
person who has been convicted of a felony, or any sex offense, may not
be employed at the secure community transition facility or be approved
as an escort for a resident of the facility.
(((2) With respect to the facility established pursuant to RCW
71.09.250(1), the department shall, no later than December 1, 2001,
provide a staffing plan to the appropriate committees of the
legislature that will cover the growth of that facility to its full
capacity.))
Sec. 8 RCW 71.09.325 and 2001 2nd sp.s. c 12 s 221 are each
amended to read as follows:
(1) The secretary shall adopt a violation reporting policy for
persons conditionally released to less restrictive alternative
placements. The policy shall require written documentation by the
department and service providers of all violations of conditions set by
the department, the department of corrections, or the court and
establish criteria for returning a violator to the special commitment
center or a secure community transition facility with a higher degree
of security. Any conditionally released person who commits a serious
violation of conditions shall be returned to the special commitment
center, unless arrested by a law enforcement officer, and the court
shall be notified immediately and shall initiate proceedings under RCW
71.09.098 to revoke or modify the less restrictive alternative
placement. Nothing in this section limits the authority of the
department to return a person to the special commitment center based on
a violation that is not a serious violation as defined in this section.
For the purposes of this section, "serious violation" includes but is
not limited to:
(a) The commission of any criminal offense;
(b) Any unlawful use or possession of a controlled substance; and
(c) Any violation of conditions targeted to address the person's
documented pattern of offense that increases the risk to public safety.
(2) When a person is conditionally released to a less restrictive
alternative under this chapter and is under the supervision of the
department of corrections, notice of any violation of the person's
conditions of release must also be made to the department of
corrections.
(3) Whenever the secretary contracts with a service provider to
operate a secure community transition facility, the contract shall
include a requirement that the service provider must report to the
department ((of social and health services)) any known violation of
conditions committed by any resident of the secure community transition
facility.
(4) The secretary shall document in writing all violations,
penalties, actions by the department ((of social and health services))
to remove persons from a secure community transition facility, and
contract terminations. The secretary shall compile this information
and submit it to the appropriate committees of the legislature on an
annual basis. The secretary shall give great weight to a service
provider's record of violations, penalties, actions by the department
((of social and health services)) or the department of corrections to
remove persons from a secure community transition facility, and
contract terminations in determining whether to execute, renew, or
renegotiate a contract with a service provider.
Sec. 9 RCW 71.09.342 and 2002 c 68 s 9 are each amended to read
as follows:
(1) After October 1, 2002, notwithstanding RCW 36.70A.103 or any
other law, this section preempts and supersedes local plans,
development regulations, permitting requirements, inspection
requirements, and all other laws as necessary to enable the department
to site, construct, renovate, occupy, and operate secure community
transition facilities within the borders of the following:
(a) Any county that had five or more persons civilly committed from
that county, or detained at the special commitment center under a
pending civil commitment petition from that county where a finding of
probable cause has been made, on April 1, 2001, if the department
determines that the county has not met the requirements of RCW
36.70A.200 with respect to secure community transition facilities.
This subsection does not apply to the county in which the secure
community transition facility authorized under RCW 71.09.250(1) is
located; and
(b) Any city located within a county listed in (a) of this
subsection that the department determines has not met the requirements
of RCW 36.70A.200 with respect to secure community transition
facilities.
(2) The department's determination under subsection (1)(a) or (b)
of this section is final and is not subject to appeal under chapter
34.05 or 36.70A RCW.
(3) When siting a facility in a county or city that has been
preempted under this section, the department shall consider the policy
guidelines established under RCW ((71.09.275)) 71.09.285 and 71.09.290
and shall hold the hearings required in RCW 71.09.315.
(4) Nothing in this section prohibits the department from:
(a) Siting a secure community transition facility in a city or
county that has complied with the requirements of RCW 36.70A.200 with
respect to secure community transition facilities, including a city
that is located within a county that has been preempted. If the
department sites a secure community transition facility in such a city
or county, the department shall use the process established by the city
or county for siting such facilities; or
(b) Consulting with a city or county that has been preempted under
this section regarding the siting of a secure community transition
facility.
(5)(a) A preempted city or county may propose public safety
measures specific to any finalist site to the department. The measures
must be consistent with the location of the facility at that finalist
site. The proposal must be made in writing by the date of:
(i) The second hearing under RCW 71.09.315(2)(a) when there are
three finalist sites; or
(ii) The first hearing under RCW 71.09.315(2)(b) when there is only
one site under consideration.
(b) The department shall respond to the city or county in writing
within fifteen business days of receiving the proposed measures. The
response shall address all proposed measures.
(c) If the city or county finds that the department's response is
inadequate, the city or county may notify the department in writing
within fifteen business days of the specific items which it finds
inadequate. If the city or county does not notify the department of a
finding that the response is inadequate within fifteen business days,
the department's response shall be final.
(d) If the city or county notifies the department that it finds the
response inadequate and the department does not revise its response to
the satisfaction of the city or county within seven business days, the
city or county may petition the governor to designate a person with law
enforcement expertise to review the response under RCW 34.05.479.
(e) The governor's designee shall hear a petition filed under this
subsection and shall make a determination within thirty days of hearing
the petition. The governor's designee shall consider the department's
response, and the effectiveness and cost of the proposed measures, in
relation to the purposes of this chapter. The determination by the
governor's designee shall be final and may not be the basis for any
cause of action in civil court.
(f) The city or county shall bear the cost of the petition to the
governor's designee. If the city or county prevails on all issues, the
department shall reimburse the city or county costs incurred, as
provided under chapter 34.05 RCW.
(g) Neither the department's consideration and response to public
safety conditions proposed by a city or county nor the decision of the
governor's designee shall affect the preemption under this section or
the department's authority to site, construct, renovate, occupy, and
operate the secure community transition facility at that finalist site
or at any finalist site.
(6) Until June 30, 2009, the secretary shall site, construct,
occupy, and operate a secure community transition facility sited under
this section in an environmentally responsible manner that is
consistent with the substantive objectives of chapter 43.21C RCW, and
shall consult with the department of ecology as appropriate in carrying
out the planning, construction, and operations of the facility. The
secretary shall make a threshold determination of whether a secure
community transition facility sited under this section would have a
probable significant, adverse environmental impact. If the secretary
determines that the secure community transition facility has such an
impact, the secretary shall prepare an environmental impact statement
that meets the requirements of RCW 43.21C.030 and 43.21C.031 and the
rules promulgated by the department of ecology relating to such
statements. Nothing in this subsection shall be the basis for any
civil cause of action or administrative appeal.
(7) This section does not apply to the secure community transition
facility established pursuant to RCW 71.09.250(1).
Sec. 10 RCW 9.95.017 and 2001 2nd sp.s. c 12 s 321 are each
amended to read as follows:
(1) The board shall cause to be prepared criteria for duration of
confinement, release on parole, and length of parole for persons
committed to prison for crimes committed before July 1, 1984.
The proposed criteria should take into consideration RCW
9.95.009(2). Before submission to the governor, the board shall
solicit comments and review on their proposed criteria for parole
release. ((These proposed criteria shall be submitted for
consideration by the 1987 legislature.))
(2) Persons committed to the department of corrections and who are
under the authority of the board for crimes committed on or after
((July)) September 1, 2001, are subject to the provisions for duration
of confinement, release to community custody, and length of community
custody established in RCW 9.94A.712, 9.94A.713, 72.09.335, and
9.95.420 through 9.95.440.
Sec. 11 RCW 9.95.055 and 2001 2nd sp.s. c 12 s 325 are each
amended to read as follows:
The indeterminate sentence review board is hereby granted
authority, in the event of a declaration by the governor that a war
emergency exists, including a general mobilization, and for the
duration thereof only, to reduce downward the minimum term, as set by
the board, of any inmate under the jurisdiction of the board confined
in a state correctional facility, who will be accepted by and inducted
into the armed services: PROVIDED, That a reduction downward shall not
be made under this section for those inmates who: (1) Are confined for
(a) treason, (b) murder in the first degree, or ((carnal knowledge of
a female child under ten years: AND PROVIDED FURTHER, That no such
inmate shall be released under this section who is)) (c) rape of a
child in the first degree where the victim is under ten years of age or
an equivalent offense under prior law; (2) are being considered for
civil commitment as a sexually violent predator under chapter 71.09
RCW; or ((was)) (3) were sentenced under RCW 9.94A.712 for a crime
committed on or after ((July)) September 1, 2001.
Sec. 12 RCW 9.95.070 and 2001 2nd sp.s. c 12 s 327 are each
amended to read as follows:
(1) Every prisoner, convicted of a crime committed before July 1,
1984, who has a favorable record of conduct at ((the penitentiary or
the reformatory)) a state correctional institution, and who performs in
a faithful, diligent, industrious, orderly and peaceable manner the
work, duties, and tasks assigned to him or her to the satisfaction of
the superintendent of the ((penitentiary or reformatory)) institution,
and in whose behalf the superintendent of the ((penitentiary or
reformatory)) institution files a report certifying that his or her
conduct and work have been meritorious and recommending allowance of
time credits to him or her, shall upon, but not until, the adoption of
such recommendation by the indeterminate sentence review board, be
allowed time credit reductions from the term of imprisonment fixed by
the board.
(2) Offenders sentenced under RCW 9.94A.712 for a crime committed
on or after ((July)) September 1, 2001, are subject to the earned
release provisions for sex offenders established in RCW 9.94A.728.
Sec. 13 RCW 9.95.110 and 2001 2nd sp.s. c 12 s 331 are each
amended to read as follows:
(1) The board may permit an offender convicted of a crime committed
before July 1, 1984, to leave the buildings and enclosures of a state
correctional institution on parole, after such convicted person has
served the period of confinement fixed for him or her by the board,
less time credits for good behavior and diligence in work: PROVIDED,
That in no case shall an inmate be credited with more than one-third of
his or her sentence as fixed by the board.
The board may establish rules and regulations under which an
offender may be allowed to leave the confines of a state correctional
institution on parole, and may return such person to the confines of
the institution from which he or she was paroled, at its discretion.
(2) The board may permit an offender convicted of a crime committed
on or after ((July)) September 1, 2001, and sentenced under RCW
9.94A.712, to leave a state correctional institution on community
custody according to the provisions of RCW 9.94A.712, 9.94A.713,
72.09.335, and 9.95.420 through 9.95.440. The person may be returned
to the institution following a violation of his or her conditions of
release to community custody pursuant to the hearing provisions of RCW
9.95.435.
Sec. 14 RCW 9.95.120 and 2001 2nd sp.s. c 12 s 333 are each
amended to read as follows:
Whenever the board or a community corrections officer of this state
has reason to believe a person convicted of a crime committed before
July 1, 1984, has breached a condition of his or her parole or violated
the law of any state where he or she may then be or the rules and
regulations of the board, any community corrections officer of this
state may arrest or cause the arrest and detention and suspension of
parole of such convicted person pending a determination by the board
whether the parole of such convicted person shall be revoked. All
facts and circumstances surrounding the violation by such convicted
person shall be reported to the board by the community corrections
officer, with recommendations. The board, after consultation with the
secretary of corrections, shall make all rules and regulations
concerning procedural matters, which shall include the time when state
community corrections officers shall file with the board reports
required by this section, procedures pertaining thereto and the filing
of such information as may be necessary to enable the board to perform
its functions under this section. On the basis of the report by the
community corrections officer, or at any time upon its own discretion,
the board may revise or modify the conditions of parole or order the
suspension of parole by the issuance of a written order bearing its
seal, which order shall be sufficient warrant for all peace officers to
take into custody any convicted person who may be on parole and retain
such person in their custody until arrangements can be made by the
board for his or her return to a state correctional institution for
convicted felons. Any such revision or modification of the conditions
of parole or the order suspending parole shall be personally served
upon the parolee.
Any parolee arrested and detained in physical custody by the
authority of a state community corrections officer, or upon the written
order of the board, shall not be released from custody on bail or
personal recognizance, except upon approval of the board and the
issuance by the board of an order of reinstatement on parole on the
same or modified conditions of parole.
All chiefs of police, marshals of cities and towns, sheriffs of
counties, and all police, prison, and peace officers and constables
shall execute any such order in the same manner as any ordinary
criminal process.
Whenever a paroled prisoner is accused of a violation of his or her
parole, other than the commission of, and conviction for, a felony or
misdemeanor under the laws of this state or the laws of any state where
he or she may then be, he or she shall be entitled to a fair and
impartial hearing of such charges within thirty days from the time that
he or she is served with charges of the violation of conditions of
parole after his or her arrest and detention. The hearing shall be
held before one or more members of the board at a place or places,
within this state, reasonably near the site of the alleged violation or
violations of parole.
In the event that the board suspends a parole by reason of an
alleged parole violation or in the event that a parole is suspended
pending the disposition of a new criminal charge, the board shall have
the power to nullify the order of suspension and reinstate the
individual to parole under previous conditions or any new conditions
that the board may determine advisable. Before the board shall nullify
an order of suspension and reinstate a parole they shall have
determined that the best interests of society and the individual shall
best be served by such reinstatement rather than a return to a
((penal)) correctional institution.
Sec. 15 RCW 9.95.435 and 2002 c 175 s 17 are each amended to read
as follows:
(1) If an offender released by the board under RCW 9.95.420
violates any condition or requirement of community custody, the board
may transfer the offender to a more restrictive confinement status to
serve up to the remaining portion of the sentence, less credit for any
period actually spent in community custody or in detention awaiting
disposition of an alleged violation and subject to the limitations of
subsection (2) of this section.
(2) Following the hearing specified in subsection (3) of this
section, the board may impose sanctions such as work release, home
detention with electronic monitoring, work crew, community restitution,
inpatient treatment, daily reporting, curfew, educational or counseling
sessions, supervision enhanced through electronic monitoring, or any
other sanctions available in the community, or may suspend or revoke
the release to community custody whenever an offender released by the
board under RCW 9.95.420 violates any condition or requirement of
community custody.
(3) If an offender released by the board under RCW 9.95.420 is
accused of violating any condition or requirement of community custody,
he or she is entitled to a hearing before the board or its designee
prior to the imposition of sanctions. The hearing shall be considered
as offender disciplinary proceedings and shall not be subject to
chapter 34.05 RCW. The board shall develop hearing procedures and a
structure of graduated sanctions consistent with the hearing procedures
and graduated sanctions developed pursuant to RCW 9.94A.737. The board
may suspend the offender's release to community custody and confine the
offender in a correctional institution owned, operated by, or operated
under contract with the state prior to the hearing unless the offender
has been arrested and confined for a new criminal offense.
(4) The hearing procedures required under subsection (3) of this
section shall be developed by rule and include the following:
(a) Hearings shall be conducted by members of the board unless the
board enters into an agreement with the department to use the hearing
officers established under RCW 9.94A.737;
(b) The board shall provide the offender with written notice of the
violation, the evidence relied upon, and the reasons the particular
sanction was imposed. The notice shall include a statement of the
rights specified in this subsection, and the offender's right to file
a personal restraint petition under court rules after the final
decision of the board;
(c) The hearing shall be held unless waived by the offender, and
shall be electronically recorded. For offenders not in total
confinement, the hearing shall be held within fifteen working days, but
not less than twenty-four hours after notice of the violation. For
offenders in total confinement, the hearing shall be held within five
working days, but not less than twenty-four hours after notice of the
violation;
(d) The offender shall have the right to: (i) Be present at the
hearing; (ii) have the assistance of a person qualified to assist the
offender in the hearing, appointed by the hearing examiner if the
offender has a language or communications barrier; (iii) testify or
remain silent; (iv) call witnesses and present documentary evidence;
(v) question witnesses who appear and testify; and (vi) be represented
by counsel if revocation of the release to community custody is a
possible sanction for the violation; and
(e) The sanction shall take effect if affirmed by the hearing
examiner.
(5) Within seven days after the hearing examiner's decision, the
offender may appeal the decision to a panel of three reviewing
examiners designated by the chair of the board or by the chair's
designee. The sanction shall be reversed or modified if a majority of
the panel finds that the sanction was not reasonably related to any of
the following: (((i))) (a) The crime of conviction; (((ii))) (b) the
violation committed; (((iii))) (c) the offender's risk of reoffending;
or (((iv))) (d) the safety of the community.
(((5))) (6) For purposes of this section, no finding of a violation
of conditions may be based on unconfirmed or unconfirmable allegations.
Sec. 16 RCW 9.95.440 and 2001 2nd sp.s. c 12 s 310 are each
amended to read as follows:
In the event the board suspends the release status of an offender
released under RCW 9.95.420 by reason of an alleged violation of a
condition of release, or pending disposition of a new criminal charge,
the board may nullify the suspension order and reinstate release under
previous conditions or any new conditions the board determines
advisable pursuant to RCW 9.94A.713(5). Before the board may nullify
a suspension order and reinstate release, it shall determine that the
best interests of society and the offender shall be served by such
reinstatement rather than return to confinement.
Sec. 17 RCW 18.155.030 and 2001 2nd sp.s. c 12 s 402 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) Except as provided under RCW 9.94A.820 and 71.09.350, 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.670 and 13.40.160;
(b) Treatment of convicted sex offenders who are sentenced and
ordered into treatment pursuant to chapter 9.94A RCW and adjudicated
juvenile sex offenders who are ordered into treatment pursuant to
chapter 13.40 RCW;
(c) ((Except as provided under subsection (3) of this section,))
Treatment of sexually violent predators who are conditionally released
to a less restrictive alternative pursuant to chapter 71.09 RCW.
(3) A certified sex offender treatment provider or a treatment
provider authorized under RCW 71.09.350 may not perform or provide
treatment of sexually violent predators under subsection (2)(c) of this
section if the certified sex offender treatment provider has been:
(a) Convicted of a sex offense, as defined in RCW 9.94A.030;
(b) Convicted in any other jurisdiction of an offense that under
the laws of this state would be classified as a sex offense as defined
in RCW 9.94A.030; or
(c) Suspended or otherwise restricted from practicing any health
care profession by competent authority in any state, federal, or
foreign jurisdiction.
Sec. 18 RCW 71.09.270 and 2001 2nd sp.s. c 12 s 210 are each
amended to read as follows:
The secretary of social and health services shall coordinate with
the secretary of corrections and the appropriate local or state law
enforcement agency or agencies to establish a twenty-four-hour law
enforcement presence on McNeil Island before any person is admitted to
the secure community transition facility established under RCW
71.09.250(1)(a)(i). Law enforcement shall coordinate with the
emergency response team for McNeil Island to provide planning and
coordination in the event of an escape from the special commitment
center or the secure community transition facility.
((In addition, or if no law enforcement agency will provide a law
enforcement presence on the island, not more than ten correctional
employees, as selected by the secretary of corrections, who are members
of the emergency response team for the McNeil Island correctional
facility, shall have the powers and duties of a general authority peace
officer while acting in a law enforcement capacity. If there is no law
enforcement agency to provide the law enforcement presence, those
correctional employees selected as peace officers shall provide a
twenty-four-hour presence and shall not have correctional duties at the
correctional facility in addition to the emergency response team while
acting in a law enforcement capacity.))
NEW SECTION. Sec. 19 A new section is added to chapter 72.09 RCW
to read as follows:
If no law enforcement agency will provide a law enforcement
presence on the island, not more than ten correctional employees, as
selected by the secretary of corrections, who are members of the
emergency response team for the McNeil Island correctional facility,
shall have the powers and duties of a general authority peace officer
while acting in a law enforcement capacity. If there is no law
enforcement agency to provide the law enforcement presence, those
correctional employees selected as peace officers shall provide a
twenty-four-hour presence and shall not have correctional duties at the
correctional facility in addition to the emergency response team while
acting in a law enforcement capacity.