HOUSE BILL REPORT

ESHB 1547

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Floor Activity:

Passed House: 3/2/11, 85-11.

Senate Amended.

Passed Senate: 4/5/11, 48-1.

House Refused to Concur.

Senate Amended.

Passed Senate: 4/21/11, 47-0.

Brief Summary of Engrossed Substitute Bill

Removes the requirement that the Secretary of the Department of Corrections (Secretary) make a finding that a placement of an alien offender on conditional release status is in the best interests of the state.
Removes the requirement of approval by the sentencing court and the prosecuting attorney in the county of conviction as a prerequisite to placing an alien offender on conditional release status.
Requires the Secretary to enter into an agreement with the Federal Immigration and Customs Enforcement Agency (ICE) that once an alien offender has been turned over to the ICE and placed on conditional release status, that offender will remain in total confinement at a facility operated by the ICE pending the offender's return to his or her country of origin.

Background:

Any alien offender who has been sentenced under the Sentencing Reform Act of 1981 and who has been found by the United States Attorney General to be subject to a final order of deportation or exclusion may be placed on conditional release status. If placed on conditional release status, the offender is transferred to the custody of the Immigration and Customs Enforcement (ICE) division of the U.S. Department of Homeland Security.

An offender may not be released on a conditional release status unless the Secretary of the Department of Corrections (Secretary) finds that such a release is in the best interest of the state. Conditional release status may only be allowed with the approval of the sentencing court and the prosecuting attorney of the county of conviction.

If an offender is serving a sentence for a violent offense, sex offense, or for an offense that is a crime against a person, he or she may not be placed on conditional release status. Once an offender is turned over to the ICE, the Department of Corrections (DOC) must issue a warrant for the offender's arrest within the United States which will remain in effect until the expiration of the conditional release. The unserved portion of an offender's term of confinement is tolled when the offender is released to the ICE. If the offender is arrested, the DOC must seek extradition as necessary and the offender must be returned to the DOC for the completion of the unserved portion of his or her term of total confinement.

Summary of Engrossed Substitute Bill:

The placement of an offender on conditional release status no longer requires the Secretary to find that such placement is in the best interest of the state. The approval of the sentencing court and the prosecuting attorney is no longer needed.

If an offender is serving a sentence for a violent offense, sex offense, or for an offense that is a crime against a person, he or she may not be placed on conditional release status. Before an offender is placed on conditional release status, the Secretary is required to enter into an agreement with the ICE that once an alien offender has been turned over to the ICE and placed on conditional release status, that offender will remain in total confinement at a facility operated by the ICE pending the offender's return to his or her country of origin. If an offender is arrested after being placed on conditional release status, the DOC may, but is not required to, seek extradition to have the offender returned to the DOC.

The provisions would apply to persons convicted before, on, or after the effective date of the bill.

EFFECT OF SENATE AMENDMENT(S):

The Senate amendment allows offenders serving a sentence for a crime against a person to be eligible for early deportation.

The Senate amendment provides that a warrant for the arrest of an offender issued upon release of the offender to the Immigration and Customs Enforcement agency remains in effect indefinitely, rather than until the expiration of the statutory maximum sentence for the crime committed.

The Senate amendment requires the DOC to provide an offender who is subject to early deportation with a written notice of his or her rights in removal proceedings. The notice must be provided as early in the removal process as feasible. The written notice of rights that is provided at the initial master calendar hearing in removal proceedings satisfies this requirement. The DOC must work with a nonprofit legal services organization that is qualified to appear in immigration court to create the written notice.

The Senate amendment also requires that prior to accepting a defendant's guilty plea, a state court advise the defendant that he or she may be subject to early removal as a consequence of conviction and that he or she may be able to contest removal.

The Senate amendment takes effect immediately, rather than on March 15, 2011.

Staff Summary of Public Testimony:

(In support) Under current law, the sentencing court and the prosecutor must approve the placement of an offender on conditional release status. In the last two years, the DOC sent out letters on 80 cases to the courts and prosecutors and in only one case did both the court and the prosecutor consent to conditional release. The DOC supports the bill. During this economic crisis the state taxpayers should not pay to incarcerate offenders who will be deported at the end of their sentence anyway.

(With concerns) The scope of the bill would extend beyond undocumented residents to all legal non-citizens who might be subject to deportation due to a felony conviction. The bill does not include any protections for individuals who may be able to contest deportation even after a final order of deportation has been entered. There is an amendment that could be adopted that would mitigate the due process concerns raised by the bill. The amendment would require the DOC to provide notice to individuals who may be considered for early release so those individuals have the opportunity to access legal representation. For those being sentenced after enactment, the court would be required to alert the individuals of their rights at sentencing before being transferred to DOC custody.

(Opposed) None.