BILL REQ. #:  H-3043.2 

Read first time 03/19/2007.   Referred to Committee on Human Services.

     AN ACT Relating to improving public safety by improving state supervision of felony offenders in the community; amending RCW 9.94A.737, 9.94A.631, and 9.94A.728; adding a new section to chapter 9.94A RCW; adding new sections to chapter 72.09 RCW; adding a new section to chapter 4.24 RCW; creating a new section; prescribing penalties; making an appropriation; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The legislature finds that public safety is one of the paramount duties of the state and an essential function of government. The legislature further finds that systemic problems exist with the department of corrections that must be addressed expeditiously and unequivocally in order to rebuild public confidence in the state's ability to best protect them from criminal offenders who have been released from full incarceration but are still serving their sentences on community custody. Turnstile justice is not conducive to building public safety, public confidence in and support for our criminal justice system as a whole, and the morale of personnel working within our department of corrections, law enforcement agencies, and prosecutors' offices. Citizens expect and demand predictability, proportionality, uniformity, transparency, and justice when dealing with criminal offenders and due consideration for the severe and detrimental impact of crime on victims and their families and friends when dealing with such offenders.

Sec. 2   RCW 9.94A.737 and 2005 c 435 s 3 are each amended to read as follows:
     (1) If an offender violates any condition or requirement of community custody, the department 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)(a)(i) For a sex offender sentenced to a term of community custody under RCW 9.94A.670 for a crime committed prior to the effective date of this act who violates any condition of community custody, the department may impose a sanction of up to sixty days' confinement in a local correctional facility for each violation. If the department imposes a sanction, the department shall submit within seventy-two hours a report to the court and the prosecuting attorney outlining the violation or violations and the sanctions imposed.
     (ii) For a sex offender sentenced to a term of community custody under RCW 9.94A.670 for a crime committed on or after the effective date of this act who violates any condition of community custody, the department may impose, for each violation, a sanction of total confinement in a local correctional facility for any period of time that does not exceed the offender's remaining term of community custody. If the department imposes a sanction, the department shall submit within seventy-two hours a report to the court and the prosecuting attorney outlining the violation or violations and the sanctions imposed.
     (b) For a sex offender sentenced to a term of community custody under RCW 9.94A.710 who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in a local correctional facility for each violation.
     (c)(i) For an offender sentenced to a term of community custody under RCW 9.94A.505(2)(b), 9.94A.650, or 9.94A.715, or under RCW 9.94A.545, for a crime committed on or after July 1, 2000, but before the effective date of this act, who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.
     (ii) For an offender sentenced to a term of community custody under RCW 9.94A.505(2)(b), 9.94A.650, or 9.94A.715, or under RCW 9.94A.545, for a crime committed on or after the effective date of this act, who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose, for each violation, a sanction of total confinement for any period of time that does not exceed the offender's remaining term of community custody. The department 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.
     (d) For an offender sentenced to a term of community placement under RCW 9.94A.705 who violates any condition of community placement after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.
     (3) If an offender is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the department prior to the imposition of sanctions. The hearing shall be considered as offender disciplinary proceedings and shall not be subject to chapter 34.05 RCW. The department shall develop hearing procedures and a structure of graduated sanctions.
     (4) The hearing procedures required under subsection (3) of this section shall be developed by rule and include the following:
     (a) Hearing officers shall report through a chain of command separate from that of community corrections officers;
     (b) The department shall provide the offender with written notice of the violation, the evidence relied upon, and the reasons the particular sanction was imposed. The notice shall include a statement of the rights specified in this subsection, and the offender's right to file a personal restraint petition under court rules after the final decision of the department;
     (c) The hearing shall be held unless waived by the offender, and shall be electronically recorded. For offenders not in total confinement, the hearing shall be held within fifteen working days, but not less than twenty-four hours, after notice of the violation. For offenders in total confinement, the hearing shall be held within five working days, but not less than twenty-four hours, after notice of the violation;
     (d) The offender shall have the right to: (i) Be present at the hearing; (ii) have the assistance of a person qualified to assist the offender in the hearing, appointed by the hearing officer if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and present documentary evidence; and (v) question witnesses who appear and testify; and
     (e) The sanction shall take effect if affirmed by the hearing officer. Within seven days after the hearing officer's decision, the offender may appeal the decision to a panel of three reviewing officers designated by the secretary or by the secretary's designee. The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to any of the following: (i) The crime of conviction; (ii) the violation committed; (iii) the offender's risk of reoffending; or (iv) the safety of the community.
     (5) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations.
     (6) The department shall work with the Washington association of sheriffs and police chiefs to establish and operate an electronic monitoring program for low-risk offenders who violate the terms of their community custody. Between January 1, 2006, and December 31, 2006, the department shall endeavor to place at least one hundred low-risk community custody violators on the electronic monitoring program per day if there are at least that many low-risk offenders who qualify for the electronic monitoring program.
     (7) Local governments, their subdivisions and employees, the department and its employees, and the Washington association of sheriffs and police chiefs and its employees shall be immune from civil liability for damages arising from incidents involving low-risk offenders who are placed on electronic monitoring unless it is shown that an employee acted with gross negligence or bad faith.

Sec. 3   RCW 9.94A.631 and 1984 c 209 s 11 are each amended to read as follows:
     If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, an offender may be required to submit to a search and seizure of the offender's person, residence, automobile, or other personal property. An offender may be required to submit to a search without reasonable cause to believe that he or she has violated a condition or requirement of the sentence if the search is a condition of his or her community custody under section 4 of this act. A community corrections officer may also arrest an offender for any crime committed in his or her presence. The facts and circumstances of the conduct of the offender shall be reported by the community corrections officer, with recommendations, to the court.
     If a community corrections officer arrests or causes the arrest of an offender under this section, the offender shall be confined and detained in the county jail of the county in which the offender was taken into custody, and the sheriff of that county shall receive and keep in the county jail, where room is available, all prisoners delivered to the jail by the community corrections officer, and such offenders shall not be released from custody on bail or personal recognizance, except upon approval of the court, pursuant to a written order.

NEW SECTION.  Sec. 4   A new section is added to chapter 9.94A RCW to read as follows:
     (1) The legislature finds that:
     (a) Offenders in total confinement may be subjected to random, unannounced inspections without violating the constitutional requirement that all searches be reasonable;
     (b) Offenders on community custody have the same expectation of privacy as offenders in total confinement; and
     (c) Requiring an offender on community custody to submit to random, unannounced inspections is therefore reasonable under the federal and state Constitutions.
     (2) When a court sentences an offender to a term of community custody under RCW 9.94A.505(2)(b), 9.94A.545, 9.94A.650, or 9.94A.715, for a crime committed on or after the effective date of this act, the court shall require the offender, as a condition of community custody, to submit to random, unannounced inspections of his or her person, residence, automobile, or other personal property.

NEW SECTION.  Sec. 5   A new section is added to chapter 72.09 RCW to read as follows:
     (1) The department shall inspect the person, residence, automobile, or other personal property of an offender under its supervision in the community whenever the department has reasonable cause to believe that the offender has violated a condition or requirement of his or her sentence.
     (2) The department shall perform random, unannounced inspections of the person, residence, automobile, or other personal property of every offender under the department's supervision pursuant to a term of community custody imposed for a crime committed on or after the effective date of this act.

Sec. 6   RCW 9.94A.728 and 2004 c 176 s 6 are each amended to read as follows:
     No person serving a sentence imposed pursuant to this chapter and committed to the custody of the department shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows:
     (1) Except as otherwise provided for in subsection (2) of this section, the term of the sentence of an offender committed to a correctional facility operated by the department may be reduced by earned release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined. The earned release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction. The correctional agency shall not credit the offender with earned release credits in advance of the offender actually earning the credits. Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration. If an offender is transferred from a county jail to the department, the administrator of a county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned release time. An offender who has been convicted of a felony committed after July 23, 1995, that involves any applicable deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both, shall not receive any good time credits or earned release time for that portion of his or her sentence that results from any deadly weapon enhancements.
     (a) In the case of an offender convicted of a serious violent offense, or a sex offense that is a class A felony, committed on or after July 1, 1990, and before July 1, 2003, the aggregate earned release time may not exceed fifteen percent of the sentence. In the case of an offender convicted of a serious violent offense, or a sex offense that is a class A felony, committed on or after July 1, 2003, or any other offense committed on or after the effective date of this act, the aggregate earned release time may not exceed ten percent of the sentence.
     (b)(i) In the case of an offender who qualifies under (b)(ii) of this subsection, the aggregate earned release time may not exceed fifty percent of the sentence.
     (ii) An offender is qualified to earn up to fifty percent of aggregate earned release time under this subsection (1)(b) if he or she:
     (A) Is classified in one of the two lowest risk categories under (b)(iii) of this subsection;
     (B) Is not confined pursuant to a sentence for:
     (I) A sex offense;
     (II) A violent offense;
     (III) A crime against persons as defined in RCW 9.94A.411;
     (IV) A felony that is domestic violence as defined in RCW 10.99.020;
     (V) A violation of RCW 9A.52.025 (residential burglary);
     (VI) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or
     (VII) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor); and
     (C) Has no prior conviction for:
     (I) A sex offense;
     (II) A violent offense;
     (III) A crime against persons as defined in RCW 9.94A.411;
     (IV) A felony that is domestic violence as defined in RCW 10.99.020;
     (V) A violation of RCW 9A.52.025 (residential burglary);
     (VI) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or
     (VII) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor).
     (iii) For purposes of determining an offender's eligibility under this subsection (1)(b), the department shall perform a risk assessment of every offender committed to a correctional facility operated by the department who has no current or prior conviction for a sex offense, a violent offense, a crime against persons as defined in RCW 9.94A.411, a felony that is domestic violence as defined in RCW 10.99.020, a violation of RCW 9A.52.025 (residential burglary), a violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine, or a violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor). The department must classify each assessed offender in one of four risk categories between highest and lowest risk.
     (iv) The department shall recalculate the earned release time and reschedule the expected release dates for each qualified offender under this subsection (1)(b).
     (v) This subsection (1)(b) applies retroactively to eligible offenders serving terms of total confinement in a state correctional facility as of July 1, 2003.
     (vi) This subsection (1)(b) does not apply to offenders convicted of offenses committed on or after ((July 1, 2010)) the effective date of this act.
     (c) In no other case shall the aggregate earned release time exceed one-third of the total sentence;
     (2)(a) A person convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, vehicular homicide, vehicular assault, assault of a child in the second degree, any crime against persons where it is determined in accordance with RCW 9.94A.602 that the offender or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW, committed before July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section;
     (b) A person convicted of a sex offense, a violent offense, any crime against persons under RCW 9.94A.411(2), or a felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section;
     (c) The department shall, as a part of its program for release to the community in lieu of earned release, require the offender to propose a release plan that includes an approved residence and living arrangement. All offenders with community placement or community custody terms eligible for release to community custody status in lieu of earned release shall provide an approved residence and living arrangement prior to release to the community;
     (d) The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender's release plan, including proposed residence location and living arrangements, may violate the conditions of the sentence or conditions of supervision, place the offender at risk to violate the conditions of the sentence, place the offender at risk to reoffend, or present a risk to victim safety or community safety. The department's authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement;
     (e) An offender serving a term of confinement imposed under RCW 9.94A.670(4)(a) is not eligible for earned release credits under this section;
     (3) An offender may leave a correctional facility pursuant to an authorized furlough or leave of absence. In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers;
     (4)(a) The secretary may authorize an extraordinary medical placement for an offender when all of the following conditions exist:
     (i) The offender has a medical condition that is serious enough to require costly care or treatment;
     (ii) The offender poses a low risk to the community because he or she is physically incapacitated due to age or the medical condition; and
     (iii) Granting the extraordinary medical placement will result in a cost savings to the state.
     (b) An offender sentenced to death or to life imprisonment without the possibility of release or parole is not eligible for an extraordinary medical placement.
     (c) The secretary shall require electronic monitoring for all offenders in extraordinary medical placement unless the electronic monitoring equipment interferes with the function of the offender's medical equipment or results in the loss of funding for the offender's medical care. The secretary shall specify who shall provide the monitoring services and the terms under which the monitoring shall be performed.
     (d) The secretary may revoke an extraordinary medical placement under this subsection at any time;
     (5) The governor, upon recommendation from the clemency and pardons board, may grant an extraordinary release for reasons of serious health problems, senility, advanced age, extraordinary meritorious acts, or other extraordinary circumstances;
     (6) No more than the final six months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing himself or herself in the community;
     (7) The governor may pardon any offender;
     (8) The department may release an offender from confinement any time within ten days before a release date calculated under this section; and
     (9) An offender may leave a correctional facility prior to completion of his or her sentence if the sentence has been reduced as provided in RCW 9.94A.870.
     Notwithstanding any other provisions of this section, an offender sentenced for a felony crime listed in RCW 9.94A.540 as subject to a mandatory minimum sentence of total confinement shall not be released from total confinement before the completion of the listed mandatory minimum sentence for that felony crime of conviction unless allowed under RCW 9.94A.540, however persistent offenders are not eligible for extraordinary medical placement.

NEW SECTION.  Sec. 7   A new section is added to chapter 72.09 RCW to read as follows:
     The department shall develop a performance review whenever an offender serving a term of community custody is convicted of a new crime to determine whether the department contributed to the circumstances that allowed the crime to occur. Beginning January 1, 2008, the department shall compile and submit copies of the reviews developed during the previous calendar year to the governor and the legislature.

NEW SECTION.  Sec. 8   A new section is added to chapter 72.09 RCW to read as follows:
     (1) Beginning January 1, 2008, the department shall submit an annual report to the governor and the legislature containing:
     (a) The number of offenders supervised by the department during the previous calendar year;
     (b) The number and custody levels of offenders who violated one or more conditions of their community custody during the previous calendar year; and
     (c) The number and custody levels of offenders who were convicted, during the previous calendar year, of new offenses that were committed while the offenders were on community custody.
     (2) The department shall perform a study to determine whether it has the capacity to adequately supervise all offenders who are serving a term of community custody. The department shall report the results of this study along with a plan to efficiently and effectively improve its supervision capacity to the governor and the legislature by January 1, 2008. For purposes of this subsection, "adequately supervise" means to supervise in a manner that minimizes the number of community custody violations and new crimes committed by offenders under supervision.

NEW SECTION.  Sec. 9   A new section is added to chapter 4.24 RCW to read as follows:
     (1) The department of corrections and its officers, employees, agents, and volunteers, who supervise offenders in the community, are not liable for civil damages resulting from any act or omission in the provision of such supervision, unless the act or omission constitutes gross negligence. This section does not create any duty and shall not be construed to create a duty where none exists.
     (2) The burden of proof is clear, cogent, and convincing evidence in any action alleging damages as a result of any act or omission on the part of the department of corrections and its officers, employees, agents, and volunteers, in supervising offenders in the community.

NEW SECTION.  Sec. 10   The sum of . . . . . . dollars, or as much thereof as may be necessary, is appropriated for the fiscal year ending June 30, 2008, from the general fund to the department of corrections for the purposes of this act.

NEW SECTION.  Sec. 11   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.