AN ACT Relating to community custody; amending RCW 9.94A.030, 9.94A.150, 72.09.020, and 9.94A.170; reenacting and amending RCW 9.94A.120; adding new sections to chapter 9.94A RCW; adding new sections to chapter 72.09 RCW; creating a new section; prescribing penalties; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1. The purpose of this act is to ensure that sex offenders and serious violent offenders continue to be supervised by department of corrections staff when released from total or partial confinement upon reaching their earned early release date. Community custody is designed to provide more effective offender management and to thereby assist in the protection of the public. Community custody is distinct and separate from community supervision.

Sec. 2. Section 3, chapter 137, Laws of 1981 as last amended by section 17, chapter 257, Laws of 1986 and RCW 9.94A.030 are each amended to read as follows:

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

(1) "Commission" means the sentencing guidelines commission.

(2) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions.

(3) "Community custody" is a department of corrections program designed to intensely monitor offenders convicted of any sex offense or serious violent offense following transfer from partial or total confinement.

(4) "Community service" means compulsory service, without compensation, performed for the benefit of the community by the offender. For purposes of the interstate compact for out of state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.

((~~(4)~~)) (5) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed pursuant to this chapter by a court. For first-time offenders, the supervision may include crime-related prohibitions and other conditions imposed pursuant to RCW 9.94A.120(5).

((~~(5)~~)) (6) "Confinement" means total or partial confinement as defined in this section.

((~~(6)~~)) (7) "Conviction" means an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.

((~~(7)~~)) (8) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct.

((~~(8)~~)) (9) (a) "Criminal history" means the list of a defendant's prior convictions, whether in this state, in federal court, or elsewhere. The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.

(b) "Criminal history" includes a defendant's prior convictions in juvenile court if: (i) The conviction was for an offense which is a felony and is criminal history as defined in RCW 13.40.020(6)(a); (ii) the defendant was fifteen years of age or older at the time the offense was committed; and (iii) with respect to prior juvenile class B and C felonies, the defendant was less than twenty-three years of age at the time the offense for which he or she is being sentenced was committed.

((~~(9)~~)) (10) "Department" means the department of corrections.

((~~(10)~~)) (11) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community service work, or dollars or terms of a fine or restitution. The fact that an offender through "earned early release" can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.

((~~(11)~~)) (12) "Drug offense" means any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403).

((~~(12)~~)) (13) "Escape" means escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), wilful failure to return from furlough (RCW 72.66.060), or wilful failure to return from work release (RCW 72.65.070).

((~~(13)~~)) (14) "Felony traffic offense" means vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), or felony hit-and-run injury-accident (RCW 46.52.020(4)).

((~~(14)~~)) (15) "Fines" means the requirement that the offender pay a specific sum of money over a specific period of time to the court.

((~~(15)~~)) (16) (a) "First-time offender" means any person who is convicted of a felony not classified as a violent offense or a sex offense under this chapter, and except as provided in (b) of this subsection, who previously has never been convicted of a felony in this state, federal court, or another state, and who has never participated in a program of deferred prosecution for a felony offense.

(b) For purposes of (a) of this subsection, a juvenile adjudication for an offense committed before the age of fifteen years is not a previous felony conviction.

((~~(16)~~)) (17) "Nonviolent offense" means an offense which is not a violent offense.

((~~(17)~~)) (18) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.

((~~(18)~~)) (19) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, for a substantial portion of each day with the balance of the day spent in the community.

((~~(19)~~)) (20) "Restitution" means the requirement that the offender pay a specific sum of money over a specific period of time to the court as payment of damages. The sum may include both public and private costs. The imposition of a restitution order does not preclude civil redress.

((~~(20)~~)) (21) "Serious traffic offense" means driving while intoxicated (RCW 46.61.502), actual physical control while intoxicated (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)).

((~~(21)~~)) (22) "Serious violent offense" is a subcategory of violent offense and means murder in the first degree, murder in the second degree, assault in the first degree, kidnapping in the first degree, or rape in the first degree, or an attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies.

((~~(22)~~)) (23) "Sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.

((~~(23)~~)) (24) "Sex offense" means a felony that is a violation of chapter 9A.44 RCW or RCW 9A.64.020 or 9.68A.090 or that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes.

((~~24)~~)) (25) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.

((~~(25)~~)) (26) "Victim" means any person who has sustained physical or financial injury to person or property as a direct result of the crime charged.

((~~(26)~~)) (27) "Violent offense" means:

(a) Any of the following felonies, as now existing or hereafter amended: Any felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, rape in the second degree, kidnapping in the second degree, arson in the second degree, assault in the second degree, extortion in the first degree, robbery in the second degree, vehicular homicide, and vehicular assault;

(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in subsection ((~~(26)~~)) (27)(a) of this section; and

(c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under subsection ((~~(26)~~)) (27) (a) or (b) of this section.

Sec. 3. Section 12, chapter 137, Laws of 1981 as last amended by section 20, chapter 257, Laws of 1986 and by section 4, chapter 301, Laws of 1986 and RCW 9.94A.120 are each reenacted and amended to read as follows:

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

(1) Except as authorized in subsections (2), (5), and (7) of this section, the court shall impose a sentence within the sentence range for the offense.

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

(3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard range shall be a determinate sentence.

(4) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years. An offender convicted of the crime of assault in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years. An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than three years, and shall not be eligible for furlough, work release or other authorized leave of absence from the correctional facility during such minimum three year term except for the purpose of commitment to an inpatient treatment facility. The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section.

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

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

(b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;

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

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

(f) Pay a fine and/or accomplish some community service work.

(6) If a sentence range has not been established for the defendant's crime, the court shall impose a determinate sentence which may include not more than one year of confinement, community service work, a term of community supervision not to exceed one year, and/or a fine. The court may impose a sentence which provides more than one year of confinement if the court finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

(7) (a) When an offender is convicted of a sex offense other than a violation of RCW 9A.44.040 or RCW 9A.44.050 and has no prior convictions for a sex offense or any other felony sexual offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.

After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative. If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years. As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:

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

(ii) 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;

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

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

(v) Pay a fine, accomplish some community service work, or any combination thereof; or

(vi) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.

If the offender violates these sentence conditions the court may revoke the suspension and order execution of the sentence. All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.

(b) When an offender ((~~is convicted of~~)) commits any felony sexual offense and is sentenced on or after July 1, 1987, and is sentenced to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, request the department of corrections to evaluate whether the offender is amenable to treatment and the department may place the offender in a treatment program within a correctional facility operated by the department.

If the offender completes the treatment program before the expiration of his term of confinement, the department of corrections may request the court to convert the balance of confinement to community ((~~supervision and to place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:~~

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

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

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

~~(iv) Undergo available outpatient treatment~~)) custody with the same conditions as placed on the offender by the court at the original imposition of sentence pursuant to subsection (8)(a) of this section.

If the offender violates any of the terms of his community ((~~supervision~~)) custody, the court may order the offender to serve out the balance of his ((~~community supervision~~ ))term in confinement in the custody of the department of corrections.

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

After June 30, 1993, (b) of this subsection shall cease to have effect.

(((c) Whenever a court sentences a person convicted of a sex offense committed after July 1, 1986, to a term of confinement of more than one year, including a sentence under (b) of this subsection, the court may also order, in addition to the other terms of the sentence, that the offender, upon release from confinement, serve up to two years of community supervision. The conditions of supervision shall be limited to:

~~(i) Crime-related provisions;~~

~~(ii) A requirement that the offender report to a community corrections officer at regular intervals; and~~

~~(iii) A requirement to remain within or without stated geographical boundaries.~~

The length and conditions of supervision shall be set by the court at the time of sentencing. However, within thirty days prior to release from confinement and throughout the period of supervision, the length and conditions of supervision may be modified by the sentencing court, upon motion of the department of corrections, the offender, or the prosecuting attorney. The period of supervision shall be tolled during any time the offender is in confinement for any reason. In no case may the period of supervision, in combination with the other terms of the offender's sentence, exceed the statutory maximum term for the offender's crime, as set forth in RCW 9A.20.021.

If the offender violates any condition of supervision, the sentencing court, after a hearing conducted in the same manner as provided for in RCW 9.94A.200, may order the offender to be confined for up to sixty days in the county jail at state expense from funds provided for this purpose to the department of corrections. Reimbursement rates for such purposes shall be established based on a formula determined by the office of financial management and reestablished each even-numbered year. An offender may be held in jail at state expense pending the hearing, and any time served while awaiting the hearing shall be credited against confinement imposed for a violation. Even after the period of supervision has expired, an offender may be confined for a violation occurring during the period of supervision. The court shall retain jurisdiction for the purpose of holding the violation hearing and imposing a sanction.))

(8)(a) When a court sentences a person to a term of total confinement to the custody of the department of corrections for a sex offense or a serious violent offense committed on or after July 1, 1987, the court shall order that the offender shall be transferred from confinement to community custody when the offender is eligible for community custody status in lieu of earned early release time pursuant to RCW 9.94A.150(1), as computed by the department of corrections. An offender shall be released from community custody after serving the total sentence imposed by the court or one year, whichever is less.

(b) When a court sentences a person to a term of total confinement to the custody of the department of corrections for a sex offense or serious violent offense committed on or after July 1, 1987, unless a condition is waived by the court, the sentence shall include, in addition to the other terms of the sentence, the following conditions regarding the community custody program of the department of corrections:

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

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

(iii) The offender shall not consume or possess controlled substances; and

(iv) The offender shall pay community custody fees as determined by the department of corrections.

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

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

(iii) The offender shall not consume alcohol;

(iv) The residence location and living arrangements of a sex offender shall be subject to the prior approval of the department of corrections; or

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

(d) The offender shall submit to a search and seizure of the offender's person, residence, automobile, or other personal property.

(9) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days. A sentence requiring more than thirty days of confinement shall be served on consecutive days. Local jail administrators may schedule court-ordered intermittent sentences as space permits.

((~~(9)~~)) (10) If a sentence imposed includes a fine or restitution, the sentence shall specify a reasonable manner and time in which the fine or restitution shall be paid. In any sentence under this chapter the court may also require the offender to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary (a) to pay court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, (b) to make recoupment of the cost of defense attorney's fees if counsel is provided at public expense, (c) to contribute to a county or interlocal drug fund, and (d) to make such other payments as provided by law. All monetary payments shall be ordered paid by no later than ten years after the date of the judgment of conviction.

((~~(10)~~)) (11) Except as provided under RCW 9.94A.140(1), a court may not impose a sentence providing for a term of confinement or community supervision which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.

((~~(11)~~)) (12) All offenders sentenced to terms involving community supervision, community service, restitution, or fines shall be under the supervision of the secretary of the department of corrections or such person as the secretary may designate and shall follow implicitly the instructions of the secretary including reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, and notifying the community corrections officer of any change in the offender's address or employment.

((~~(12)~~)) (13) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

((~~(13)~~)) (14) A departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210(2) through (6).

((~~(14)~~)) (15) The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court's judgment. The court shall set forth the extraordinary circumstances in the record if it does not order restitution.

Sec. 4. Section 15, chapter 137, Laws of 1981 as last amended by section 8, chapter 209, Laws of 1984 and RCW 9.94A.150 are each amended to read as follows:

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

(1) Except for sex offenders and serious violent offenders, the terms of the sentence may be reduced by earned early release time in accordance with procedures developed and promulgated by the department. The earned early release time shall be for good behavior and good performance, as determined by the department. In no case shall the aggregate earned early release time exceed one-third of the sentence. Sex offenders and serious violent offenders may become eligible for community custody in lieu of earned early release time in accordance with the program developed and promulgated by the department;

(2) When a sex offender or serious violent offender is eligible for transfer to community custody status in lieu of earned early release time pursuant to RCW 9.94A.150(1), as computed by the department of corrections, the offender shall be transferred from confinement to community custody. A person so transferred shall continue to be considered an inmate for all purposes.

(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;

((~~(3)~~)) (4) 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;

((~~(4)~~)) (5) If the sentence of confinement is in excess of twelve months but not in excess of three years, no more than the final three months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing him or herself in the community. If the sentence of confinement is in excess of three years, no more than the final six months of the sentence may be served in such partial confinement;

((~~(5)~~)) (6) The governor may pardon any offender;

((~~(6)~~)) (7) The department of corrections may release an offender from confinement any time within ten days before a release date calculated under this section; and

((~~(7)~~)) (8) An offender may leave a correctional facility prior to completion of his sentence if the sentence has been reduced as provided in RCW 9.94A.160.

NEW SECTION. Sec. 5. A new section is added to chapter 9.94A RCW to read as follows:

If an offender violates any condition or requirement of community custody, the department may impose sanctions. If an offender is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before sanctions may be imposed. The department shall promulgate rules governing such hearing procedures and sanctions. Detention of an offender pursuant to section 6 of this act shall not be considered a sanction.

NEW SECTION. Sec. 6. A new section is added to chapter 9.94A RCW to read as follows:

(1) The secretary may issue warrants for the arrest of any offender who violates a condition of community custody. The arrest warrants shall authorize any law enforcement or peace officer or community corrections officer of this state or any other state where such offender may be located, to arrest the offender and place him or her in total confinement pending return to confinement in a state correctional institution. The department shall compensate the local jurisdiction at the office of financial management's adjudicated rate, in accordance with RCW 70.48.440. A community corrections officer, if he or she has reasonable cause to believe an offender in community custody has violated a condition of community custody, may suspend the person's community custody status and arrest or cause the arrest and detention in total confinement of the offender in a state facility, pending the determination of the secretary as to whether the violation has occurred. The community corrections officer shall report to the secretary all facts and circumstances and the reasons for the action of suspending community custody status.

(2) Inmates, as defined in RCW 72.09.020, who have been transferred to community custody and who are detained in a local correctional facility are the financial responsibility of the department of corrections. The community custody inmate shall be removed from the local correctional facility not later than eight days, excluding weekends and holidays, following admittance to the local correctional facility and notification that the inmate is available for movement to a state correctional institution. However, if good cause is shown, the department may negotiate with local correctional authorities for an additional period of detention.

NEW SECTION. Sec. 7. A new section is added to chapter 72.09 RCW to read as follows:

An offender in community custody who wilfully fails to report to the assigned community corrections officer at the time specified by the department of corrections shall be deemed an escapee and fugitive from justice, and upon conviction shall be guilty of a class C felony under chapter 9A.20 RCW.

NEW SECTION. Sec. 8. A new section is added to chapter 72.09 RCW to read as follows:

Community corrections officers and volunteers who assist community corrections officers in the community custody program are not liable for civil damages resulting from any act or omission in the rendering of community custody monitoring activities, other than acts or omissions constituting gross negligence or wilful or wanton misconduct. For purposes of this section, "volunteers" is defined according to RCW 51.12.035.

Sec. 9. Section 7, chapter 136, Laws of 1981 and RCW 72.09.020 are each amended to read as follows:

For purposes of this chapter, "inmate" means any person committed to the custody of the department, including but not limited to persons residing in a correctional institution or facility and persons released on furlough ((or)), work release, or community custody.

Sec. 10. Section 17, chapter 137, Laws of 1981 and RCW 9.94A.170 are each amended to read as follows:

(1) A term of confinement ordered in a sentence pursuant to this chapter shall be tolled by any period of time during which the offender has absented him or herself from supervision without the prior approval of the entity in whose custody the offender has been placed.

(2) The period of community custody shall be tolled during any period of time the offender is in confinement for any reason. However, if an offender is detained pursuant to section 6 of this act and is later found not to have violated a condition or requirement of community custody, time spent in total confinement due to such detention shall not toll the period of community custody. The period of community custody shall be tolled by any period of time during which the offender has absented himself or herself from monitoring without prior approval of the entity under whose supervision the offender has been placed. For the period of a sentence during which an offender is placed in community custody, the date for the tolling of the sentence shall be established by the department of corrections.

NEW SECTION. Sec. 11. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1987.