Post-conviction review board

Official Bill Page on Legislative Site (Bill SB 5819)

AN ACT Relating to the establishing a post-conviction review board and review process for early release of qualifying offenders;

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

 

NEW SECTION. Sec. 1. The legislature affirms the belief that while prisons are useful for providing punishment to offenders and keeping the public safe while the offender is incarcerated, prison sentences, predominantly long sentences, are not likely to deter future crime. The legislature has determined that in certain situations, prisons actually may have the opposite effect, leading offenders to learn more effective crime strategies from each other, with time spent in prison potentially desensitizing many to the threat of future imprisonment. The legislature believes that many of the individuals who commit low severity offenses have unmet behavioral health needs that could be better managed in the community, and that people who are incarcerated have higher rates of victimization, trauma, and abuse than those in the general public.

The legislature affirms that while offenders must be held accountable for their crimes, research in cognitive development and brain science have given us the information necessary to trust that against the backdrop of rehabilitation, hope, and effective programming, many people are able to learn from mistakes. The legislature affirms that behavioral change is possible and everyone deserves to live a productive and successful life.

As such, the legislature intends to create a separate small cabinet agency to review cases, on an individualized basis, for early release. The legislature intends to expand the authority and size of the currently existing indeterminate sentence review board, and rename it as the post-conviction review board. The board shall report directly to the governor, and will review post-conviction cases for early release. The legislature believes that separating the board from the department of corrections is necessary for the separation of any unintended influence on board decisions.

NEW SECTION. Sec. 2.  A new section is added to chapter 9.94A RCW to read as follows:

(1) Notwithstanding any other provision of this chapter, a person may petition the post-conviction review board as defined in RCW 9.95.001 for early release under this section, provided that he or she:

(a) Has served at least fifteen consecutive years of total confinement;

(b) Has not committed a disqualifying serious infraction as defined by the department in the twelve months prior to filing the petition for early release; and

(c) Consents to a review of all his or her medical, mental health, and department files by the board.

(2) No later than five years prior to the date the offender will be eligible to petition for release, the department shall:

(a) Notify the offender regarding his or her eligibility under this section;

(b) Conduct an assessment of the offender and identify programming and services that would be appropriate to prepare the offender for return to the community. To the extent possible, the department shall make programming available as identified by the assessment.

(i) If the offender has a prior known or diagnosed decreased cognitive function or developmental disability, or a decreased cognitive function or developmental disability is determined during the assessment process as outlined in subsection (2)(b) of this section, the department shall assist the offender with the process of applying for review by the post-conviction review board, or refer to additional services for such assistance.   

(3) No later than one hundred eighty days from the date that the offender submits his or her petition for early release to the board, the department shall conduct, and the offender shall participate in, an examination of the person, incorporating methodologies that are evidence based, normed on the specific gender of the offender, and recognized by experts in the prediction of dangerousness, and including a prediction of the probability that the person will engage in future criminal behavior if released on conditions to be set by the post-conviction review board.

 

NEW SECTION. Sec. 3. A new section is added to chapter 9.95 RCW to read as follows:

When a petition is filed under this section, the board will review the petition, and shall take the following actions:

(1) Deny a petition without a hearing due to the offender’s failure to meet the statutory eligibility for review or based on the presence of any of the following:

(a) A risk related infraction within the past five years, including but not limited to serious infractions;

(b) A security threat group concern within the past five years;

(c) A lack of compliance with the departments recommended treatment and programming; or

(d) A new conviction after admission to prison; or

(2) Conduct a hearing if the conditions in subsection (1) of this section are not met. The determination made at the hearing is whether to grant or deny the petition for early release.

(a) A decision to grant a petition for early release under this section must be made by a majority vote of the board, after the hearing. The board shall order the person released under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the person will commit new criminal law violations if released. In making a determination, the board shall consider: the nature, circumstances, and seriousness of the offense committed; evidence of the offender’s remorse and atonement for the offense committed, including any efforts to participate in the department’s victim offender dialogue program; the offender’s behavior while incarcerated, including job history, education, participation in rehabilitative programming and treatment, infraction history; statements of correctional staff, program supervisors, and volunteer facilitators regarding the offender; and other behavior or medical conditions, or risk assessments and psychological evaluations that the board finds to be relevant to the question of whether the offender is likely to engage in future criminal behavior if released to appropriate conditions. In addition, the board may consider factors pertaining to the offender’s ability to reintegrate into society, including employment skills, outside support from family, friends, or other groups, including but not limited to police and prosecutors in the jurisdictions where the crimes were committed.  The board shall give public safety considerations the highest priority when making all discretionary decisions regarding the ability for release and conditions of release. The board shall seek input from the victim of the crime, if the victim so chooses.

(b) When denying a petition for release under this section, the board shall provide the offender with a written report setting forth the reasons for the denial and recommendations as to what the offender should do prior to submitting any subsequent petition under this section. The recommendations may include behavioral changes, programming or educational objectives, or other actions the board reasonably believes will reduce the offender’s risk to reoffend. An offender whose petition for release is denied may file a new petition for release five years from the date of denial or at an earlier date as may be set by the board.

(c) The granting or denial of a petition is reviewable by the Washington State Court of Appeals, only if the board fails to follow the proper procedures.

(d) A decision of the board to grant or deny petition must be filed with the superior court in the county where the last offense took place, and a certified copy must be provided to the department. Before the release of an offender, the department shall confirm the decision with the board.

 (3) In a hearing conducted under subsection (2) of this section, the board shall provide opportunities for victims and survivors of victims of any crimes for which the offender has been convicted to present statements as set forth in RCW 7.69.032. The procedures for victim and survivor of victim input shall be provided by rule. To facilitate victim and survivor of victim involvement, county prosecutor’s offices shall ensure that any victim impact statements and known contact information for victims of record and survivors of victims are forwarded as part of the judgment and sentence. Prior to the hearing, the department shall notify victims and survivors of victims of the offender’s eligibility this section, which must also include notice as to the availability of the voluntary victim offender dialogue program and other support programs or services administered by the department

(4) When a petition is filed under this section, the board must render its decision and notify the offender and all other necessary parties within the following timeframes:

(a)For a petition denied according to subsection (1) of this section, within sixty days of the receipt the petition.

(b) For a hearing conducted according to subsection (2) of this section, within sixty days of the final hearing date.

(5)(a) The board has jurisdiction over an offender released under this section for the length of the offender’s original sentence. Conditions for release may include: partial confinement for up to six months, regular drug and/or alcohol testing, no violations of law, restrictions on travel, no contact with certain individuals or classes of individuals, restrictions on the type of employment and any other restrictions that the board determines to be reasonable and appropriate in light of the individual offender’s case. The board shall order the released offender to serve a term of community custody under the supervision of the department, which may not be less than three years and may not exceed the expiration date of the original sentence imposed by the court.

 (b) The department shall supervise the offender for the period ordered by the board and may impose additional individualized conditions. The department shall monitor the offender’s compliance with conditions of community custody imposed by the court, the board, and the department, and shall promptly report any violations to the board. Any violation of conditions of community custody established or modified by the board are subject to the provisions of RCW 9.95.425 through 9.95.440.

(6) An offender released under the provisions of this section may be returned to the institution at the discretion of the board if the offender is found to have violated a condition of community custody. The offender is entitled to a hearing pursuant to RCW 9.95.435. If the board finds that the offender has committed a new violation, the board may return the offender to the institution for up to the remainder of the court-imposed term of incarceration. The offender may file a new petition for release five years from the date of return to the institution or at an earlier date as may be set by the board.

(7) Individuals determined to be indigent who are petitioning for release under this section have a right to appointed counsel. Both lawyers and nonlawyers may assist the offender in the preparation of his or her petition and at the hearing.

(8) The hearing may be conducted telephonically and without the offender’s physical presence at the hearing. When possible, video conferencing shall be used.

(a) Hearings under this section are subject to the open public meetings act under 42.30 RCW.

(9) All information contained in a petition or that is submitted to the board is subject to public disclosure.

(10) Members of the board are not civilly liable for decisions made while performing their duties.

 

NEW SECTION. Sec. 4.  A new section is added to chapter 9.95 RCW to read as follows:

(1) The post-conviction review board shall evaluate outcomes of petitions brought under section 1 of this act. The board shall develop recommendations for changes to the eligibility requirements under section 1 of this act and to the composition or scope of review of the board. The board shall submit a report with its findings and recommendations, to the appropriate committees of the legislature and the governor’s office no later than July 1, 2022.

          (2) This section expires July 1, 2023.

 

          NEW SECTION. Sec. 5. A new chapter is added to title 43 RCW to read as follows:

          (1) Subject to the availability of amounts appropriated for this specific purpose, there is hereby created the post-conviction review board, as described and defined in 9.95 RCW, within the office of the governor for the purpose of reviewing and granting the early release of certain qualifying offenders.

(2) The post-conviction review board reports directly to the governor and exercises their powers and duties independently of the department of corrections.

Sec. 6.  RCW 9.94A.533 and 2016 c 203 s 7 are each amended to read as follows:

(1) The provisions of this section apply to the standard sentence ranges determined by RCW 9.94A.510 or 9.94A.517.

(2) For persons convicted of the anticipatory offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the standard sentence range is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the completed crime, and multiplying the range by seventy-five percent.

(3) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements based on the classification of the completed felony crime. If the offender is being sentenced for more than one offense, the firearm enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm enhancement. If the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any firearm enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

(a) Five years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection;

(b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection;

(c) Eighteen months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection;

(d) If the offender is being sentenced for any firearm enhancements under (a), (b), and/or (c) of this subsection and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (4)(a), (b), and/or (c) of this section, or both, all firearm enhancements under this subsection shall be twice the amount of the enhancement listed;

(e) Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be:

(i) Granted an extraordinary medical placement when authorized under RCW 9.94A.728(1)(c); or

(ii) Released under the provisions of RCW 9.94A.730 or section 1 of this act;

(f) The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony;

(g) If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

(4) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any deadly weapon enhancements based on the classification of the completed felony crime. If the offender is being sentenced for more than one offense, the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a deadly weapon enhancement. If the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any deadly weapon enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

(a) Two years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection;

(b) One year for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection;

(c) Six months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection;

(d) If the offender is being sentenced under (a), (b), and/or (c) of this subsection for any deadly weapon enhancements and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (3)(a), (b), and/or (c) of this section, or both, all deadly weapon enhancements under this subsection shall be twice the amount of the enhancement listed;

(e) Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be:

(i) Granted an extraordinary medical placement when authorized under RCW 9.94A.728(1)(c); or

(ii) Released under the provisions of RCW 9.94A.730 or section 1 of this act;

(f) The deadly weapon enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony;

(g) If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a deadly weapon enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

(5) The following additional times shall be added to the standard sentence range if the offender or an accomplice committed the offense while in a county jail or state correctional facility and the offender is being sentenced for one of the crimes listed in this subsection. If the offender or an accomplice committed one of the crimes listed in this subsection while in a county jail or state correctional facility, and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section:

(a) Eighteen months for offenses committed under RCW 69.50.401(2) (a) or (b) or 69.50.410;

(b) Fifteen months for offenses committed under RCW 69.50.401(2) (c), (d), or (e);

(c) Twelve months for offenses committed under RCW 69.50.4013.

For the purposes of this subsection, all of the real property of a state correctional facility or county jail shall be deemed to be part of that facility or county jail.

(6) An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.827. All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter.

(7) An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055.

Notwithstanding any other provision of law, all impaired driving enhancements under this subsection are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other impaired driving enhancements, for all offenses sentenced under this chapter.

An offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.728(1)(c).

(8)(a) The following additional times shall be added to the standard sentence range for felony crimes committed on or after July 1, 2006, if the offense was committed with sexual motivation, as that term is defined in RCW 9.94A.030. If the offender is being sentenced for more than one offense, the sexual motivation enhancement must be added to the total period of total confinement for all offenses, regardless of which underlying offense is subject to a sexual motivation enhancement. If the offender committed the offense with sexual motivation and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020:

(i) Two years for any felony defined under the law as a class A felony or with a statutory maximum sentence of at least twenty years, or both;

(ii) Eighteen months for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both;

(iii) One year for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both;

(iv) If the offender is being sentenced for any sexual motivation enhancements under (a)(i), (ii), and/or (iii) of this subsection and the offender has previously been sentenced for any sexual motivation enhancements on or after July 1, 2006, under (a)(i), (ii), and/or (iii) of this subsection, all sexual motivation enhancements under this subsection shall be twice the amount of the enhancement listed;

(b) Notwithstanding any other provision of law, all sexual motivation enhancements under this subsection are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other sexual motivation enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be:

(i) Granted an extraordinary medical placement when authorized under RCW 9.94A.728(1)(c); or

(ii) Released under the provisions of RCW 9.94A.730 or section 1 of this act;

(c) The sexual motivation enhancements in this subsection apply to all felony crimes;

(d) If the standard sentence range under this subsection exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a sexual motivation enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced;

(e) The portion of the total confinement sentence which the offender must serve under this subsection shall be calculated before any earned early release time is credited to the offender;

(f) Nothing in this subsection prevents a sentencing court from imposing a sentence outside the standard sentence range pursuant to RCW 9.94A.535.

(9) An additional one‑year enhancement shall be added to the standard sentence range for the felony crimes of RCW 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, or 9A.44.089 committed on or after July 22, 2007, if the offender engaged, agreed, or offered to engage the victim in the sexual conduct in return for a fee. If the offender is being sentenced for more than one offense, the one‑year enhancement must be added to the total period of total confinement for all offenses, regardless of which underlying offense is subject to the enhancement. If the offender is being sentenced for an anticipatory offense for the felony crimes of RCW 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, or 9A.44.089, and the offender attempted, solicited another, or conspired to engage, agree, or offer to engage the victim in the sexual conduct in return for a fee, an additional one‑year enhancement shall be added to the standard sentence range determined under subsection (2) of this section. For purposes of this subsection, “sexual conduct” means sexual intercourse or sexual contact, both as defined in chapter 9A.44 RCW.

(10)(a) For a person age eighteen or older convicted of any criminal street gang-related felony offense for which the person compensated, threatened, or solicited a minor in order to involve the minor in the commission of the felony offense, the standard sentence range is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the completed crime, and multiplying the range by one hundred twenty-five percent. If the standard sentence range under this subsection exceeds the statutory maximum sentence for the offense, the statutory maximum sentence is the presumptive sentence unless the offender is a persistent offender.

(b) This subsection does not apply to any criminal street gang-related felony offense for which involving a minor in the commission of the felony offense is an element of the offense.

(c) The increased penalty specified in (a) of this subsection is unavailable in the event that the prosecution gives notice that it will seek an exceptional sentence based on an aggravating factor under RCW 9.94A.535.

(11) An additional twelve months and one day shall be added to the standard sentence range for a conviction of attempting to elude a police vehicle as defined by RCW 46.61.024, if the conviction included a finding by special allegation of endangering one or more persons under RCW 9.94A.834.

(12) An additional twelve months shall be added to the standard sentence range for an offense that is also a violation of RCW 9.94A.831.

(13) An additional twelve months shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.520 or for vehicular assault committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.522, or for any felony driving under the influence (RCW 46.61.502(6)) or felony physical control under the influence (RCW 46.61.504(6)) for each child passenger under the age of sixteen who is an occupant in the defendant’s vehicle. These enhancements shall be mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions. If the addition of a minor child enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.

(14) An additional twelve months shall be added to the standard sentence range for an offense that is also a violation of RCW 9.94A.832.

Sec. 7. RCW 9.94A.570 and 2000 c 28 s 6 are each amended to read as follows:

(1) Notwithstanding the statutory maximum sentence or any other provision of this chapter, a persistent offender shall be:

(a) Sentenced to a term of total confinement for life ((without the possibility of release)) and may only be released if authorized by the board under section 1 of this act; or((,))

(b) When authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree((, sentenced to death)).

(2) Except when released by the board under section 1 of this act, a persistent offender is not ((In addition, no offender subject to this section)) eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of release as defined under RCW 9.94A.728 (((1), (2), (3), (4), (6), (8), or (9))) (b), (c), (e), (g), or (h), or any other form of authorized leave from a correctional facility while not in the direct custody of a corrections officer or officers, except: (((1))) (a) In the case of an offender in need of emergency medical treatment; or (((2))) (b) for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree.

Sec. 8.  RCW 9.94A.6332 and 2014 c 130 s 3 are each amended to read as follows:

The procedure for imposing sanctions for violations of sentence conditions or requirements is as follows:

(1) If the offender was sentenced under the drug offender sentencing alternative, any sanctions shall be imposed by the department or the court pursuant to RCW 9.94A.660.

(2) If the offender was sentenced under the special sex offender sentencing alternative, any sanctions shall be imposed by the department or the court pursuant to RCW 9.94A.670.

(3) If the offender was sentenced under the parenting sentencing alternative, any sanctions shall be imposed by the department or by the court pursuant to RCW 9.94A.655.

(4) If a sex offender was sentenced pursuant to RCW 9.94A.507, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

(5) If the offender was released pursuant to RCW 9.94A.730, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

(6) If the offender was sentenced pursuant to RCW 10.95.030(3) or 10.95.035, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

(7) If the offender was released pursuant to section 1 of this act, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

(8) In any other case, if the offender is being supervised by the department, any sanctions shall be imposed by the department pursuant to RCW 9.94A.737. If a probationer is being supervised by the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, upon receipt of a violation hearing report from the department, the court retains any authority that those statutes provide to respond to a probationer’s violation of conditions.

(((8))) (9) If the offender is not being supervised by the department, any sanctions shall be imposed by the court pursuant to RCW 9.94A.6333.

Sec. 9. RCW 9.94A.728 and 2018 c 166 s 2 are each amended to read as follows:

(1) 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:

(a) An offender may earn early release time as authorized by RCW 9.94A.729;

(b) 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;

(c)(i) The secretary may authorize an extraordinary medical placement for an offender when all of the following conditions exist:

(A) The offender has a medical condition that is serious and is expected to require costly care or treatment;

(B) The offender poses a low risk to the community because he or she is currently physically incapacitated due to age or the medical condition or is expected to be so at the time of release; and

(C) It is expected that granting the extraordinary medical placement will result in a cost savings to the state.

(ii) An offender sentenced to death or to life imprisonment without the possibility of release or parole is not eligible for an extraordinary medical placement.

(iii) 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, in which case, an alternative type of monitoring shall be utilized. The secretary shall specify who shall provide the monitoring services and the terms under which the monitoring shall be performed.

(iv) The secretary may revoke an extraordinary medical placement under this subsection (1)(c) at any time.

(v) Persistent offenders are not eligible for extraordinary medical placement;

(d) 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;

(e) No more than the final twelve months of the offender’s term of confinement may be served in partial confinement for aiding the offender with: Finding work as part of the work release program under chapter 72.65 RCW; or reestablishing himself or herself in the community as part of the parenting program in RCW 9.94A.6551. This is in addition to that period of earned early release time that may be exchanged for partial confinement pursuant to RCW 9.94A.729(5)(d);

(f) No more than the final six months of the offender’s term of confinement may be served in partial confinement as home detention as part of the graduated reentry program developed by the department under RCW 9.94A.733;

(g) The governor may pardon any offender;

(h) The department may release an offender from confinement any time within ten days before a release date calculated under this section;

(i) 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;

(j) 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; ((and))

(k) Any person convicted of one or more crimes committed prior to the person’s eighteenth birthday may be released from confinement pursuant to RCW 9.94A.730; and

(l) An offender may leave a correctional facility prior to completion of his or her sentence if he or she qualifies under section 1 of this act and release has been granted by the board.

(2) Offenders residing in a juvenile correctional facility placement pursuant to RCW 72.01.410(1)(a) are not subject to the limitations in this section.

Sec. 10.  RCW 9.95.0001 and 2011 1st sp.s. c 40 s 15 are each amended to read as follows:

(1) “Board” means the ((indeterminate sentence)) post-conviction review board.

(2) “Community custody” means that portion of an offender’s sentence subject to controls including crime-related prohibitions and affirmative conditions from the court, the board, or the department of corrections based on risk to community safety, that is served under supervision in the community, and which may be modified or revoked for violations of release conditions.

(3) “Crime-related prohibition” has the meaning defined in RCW 9.94A.030.

(4) “Department” means the department of corrections.

(5) “Parole” means that portion of a person’s sentence for a crime committed before July 1, 1984, served on conditional release in the community subject to board controls and revocation and under supervision of the department.

(6) “Secretary” means the secretary of the department of corrections or his or her designee.

 

Sec. 11.  RCW 9.95.002 and 2011 1st sp.s. c 40 s 16 are each amended to read as follows:

 (1) The ((indeterminate sentence)) post-conviction review board is ((transferred to the)) no longer a part of the department of corrections, but is instead.

(2)(a) All reports, documents, surveys, books, records, files, papers, or written materials in the possession of the department of corrections ((indeterminate sentence review board))shall be delivered to the custody of the ((department of corrections)) post-conviction review board. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the ((indeterminate sentence review board)) department of corrections shall be made available to the ((department of corrections)) post-conviction review board. All funds, credits, or other assets held by the department of corrections for the used by the indeterminate sentence review board shall be assigned to the ((department of corrections)) post-conviction review board.

(b) Any appropriations made during the 2017-2019 biennium to department of corrections for the use by the indeterminate sentence review board shall ((,on August 24, 2011,)) be transferred and credited to the ((department of corrections)) post-conviction review board.

(c) If any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.

(3) All employees of the indeterminate sentence review board are transferred to the jurisdiction of the ((department of corrections)) post-conviction review board. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the ((department of corrections ))post-conviction review board to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

(4) All rules and all pending business before the indeterminate sentence review board shall be continued and acted upon by the ((department of corrections)) post-conviction review board. All existing contracts and obligations shall remain in full force and shall be performed by the ((department of corrections)) post-conviction review board.

(5)((The transfer of the powers, duties, functions, and personnel of the indeterminate sentence review board shall not affect the validity of any act performed before August 24, 2011.))

(((6) ))If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

(((7) All classified employees of the indeterminate sentence review board assigned to the department of corrections under chapter 40, Laws of 2011 1st sp. sess. whose positions are within an existing bargaining unit description at the department of corrections shall become a part of the existing bargaining unit at the department of corrections and shall be considered an appropriate inclusion or modification of the existing bargaining unit under the provisions of chapter 41.80 RCW.))

(((8) Notwithstanding any provision of chapter 40, Laws of 2011 1st sp. sess. and despite the transfer of the indeterminate sentence review board to the department of corrections, the members of the indeterminate sentence review board will possess and shall exercise independent judgment when making any decisions concerning offenders. These decisions include, but are not limited to, decisions concerning offenders’ release, revocation, reinstatement, or the imposition of conditions of supervision.))

Sec. 12. RCW 9.95.003 and 2011 1st sp.s. c 40 s 15 are each amended to read as follows:

(1) The indeterminate sentence review board is ((created)) renamed the post-conviction review board as an entity within the governors office.((within the department. The board)) The board shall consist of a chair and ((four)) seven other members, each of whom shall be appointed by the governor with the consent of the senate. In appointing members, the governor shall consider racial inequities in the criminal justice system, and ensure the members are representatives of underrepresented communities.

(a) The four of the eight board members shall be composed of members as follows:

(i) a judge chosen from a pool of six to eight retired superior court or appellate court judges/justices;

(ii) a representative from a statewide or local organization representing communities of color or otherwise concerning issues of racial equity;

(iii) a representative from an association, organization, or advocacy group with experience or interest in the formerly incarcerated and successful reentry; and

(iv) a behavioral health professional.

(b) Minimum qualifications for board members include, but are not limited to:

(i) bachelor’s degree and five years’ experience in criminal justice or a social science field;

(ii) ten years’ experience in criminal justice or a social science field; or

(iii) demonstrated competence in principles of racial equity and restorative justice. 

(c) Each member shall hold office for a term of five years, and until his or her successor is appointed and qualified. The terms shall expire on April 15th of the expiration year. Vacancies in the membership of the board shall be filled by appointment by the governor with the consent of the senate. In the event of the inability of any member to act, the governor shall appoint some competent person to act in his or her stead during the continuance of such inability. The members shall not be removable during their respective terms except for cause determined by the ((superior court of Thurston county)) governor. The governor in appointing the members shall designate one of them to serve as chair at the governor’s pleasure. The appointed chair shall serve as a fully participating board member.

(2) The ((department shall provide administrative and staff support for the board. The secretary )) board may employ a senior administrative officer and such other personnel as may be necessary to assist the board in carrying out its duties.

(3) The members of the board and staff assigned to the board shall not engage in any other business or profession or hold any other public office without the prior approval of the executive ethics board indicating compliance with RCW 42.52.020, 42.52.030, 42.52.040, and 42.52.120; nor shall they, at the time of appointment or employment or during their incumbency, serve as the representative of any political party on an executive committee or other governing body thereof, or as an executive officer or employee of any political committee or association. The members of the board shall each severally receive salaries fixed by the governor in accordance with the provisions of RCW 43.03.040, and in addition shall receive travel expenses incurred in the discharge of their official duties in accordance with RCW 43.03.050 and 43.03.060.

Sec. 13.  RCW 9.95.422 and 2016 c 218 s 2 are each amended to read as follows:

(1) Upon receipt of a petition for early release submitted under RCW 9.94A.730 or the time it is determined that a hearing shall be  scheduled for a petition submitted under section 1 of this act, or upon determination of a parole eligibility review date pursuant to RCW 9.95.100 and 9.95.052, the ((indeterminate sentence)) post-conviction review board must provide notice and a copy of a petition or parole eligibility documents to the sentencing court, prosecuting attorney, and crime victim or surviving family member. The board may request the prosecuting attorney to assist in contacting the crime victim or surviving family member. If requested in writing by the sentencing court, the prosecuting attorney, or the crime victim or surviving family member, the ((indeterminate sentence review)) board must also provide any assessment, psychological evaluation, institutional behavior record, or other examination of the offender. Notice of the early release hearing date or parole eligibility date, and any evaluations or information relevant to the release decision, must be provided at least ninety days before the early release hearing or parole eligibility review hearing. The records described in this section, and other records reviewed by the board in response to the petition or parole eligibility review (([,])), must be disclosed in full and without redaction. Copies of records to be provided to the sentencing court and prosecuting attorney under this section must be provided as required without regard to whether the board has received a request for copies.

(2) For the purpose of review by the board of a petition for early release or parole eligibility, it is presumed that none of the records reviewed are exempt from disclosure to the sentencing court, prosecuting attorney, and crime victim or surviving family member, in whole or in part. The board may not claim any exemption from disclosure for the records reviewed for an early release petition or parole eligibility review hearing.

(3) The board and its subcommittees must provide comprehensive minutes of all related meetings and hearings on a petition for early release or parole eligibility review hearing. The comprehensive minutes should include, but not be limited to, the board members present, the name of the petitioner seeking review, the purpose and date of the meeting or hearing, a listing of documents reviewed, the names of members of the public who testify, a summary of discussion, the motions or other actions taken, and the votes of board members by name. For the purposes of this subsection, “action” has the same meaning as in RCW 42.30.020. The comprehensive minutes must be publicly and conspicuously posted on the board’s web site within thirty days of the meeting or hearing, without any information withheld or redacted. Nothing in this subsection precludes the board from receiving confidential input from the crime victim or surviving family member.

Sec. 14.  RCW 9.95.425 and 2014 c 130 s 5 are each amended to read as follows:

(1) Whenever the board or a community corrections officer of this state has reason to believe an offender released under RCW 9.95.420, 10.95.030(3), ((or)) 9.94A.730, or section 1 of this act has violated a condition of community custody or the laws of this state, any community corrections officer may arrest or cause the arrest and detention of the offender pending a determination by the board whether sanctions should be imposed or the offender’s community custody should be revoked. The community corrections officer shall report all facts and circumstances surrounding the alleged violation to the board, with recommendations.

(2) If the board or the department causes the arrest or detention of an offender for a violation that does not amount to a new crime and the offender is arrested or detained by local law enforcement or in a local jail, the board or department, whichever caused the arrest or detention, shall be financially responsible for local costs. Jail bed costs shall be allocated at the rate established under RCW 9.94A.740.

Sec. 15.  RCW 9.95.430 and 2014 c 130 s 6 are each amended to read as follows:

Any offender released under RCW 9.95.420, 10.95.030(3), ((or)) 9.94A.730, or section 1 of this act who is arrested and detained in physical custody by the authority of a 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 reinstating the offender’s release on the same or modified conditions. 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.

Sec. 16.  RCW 9.95.435 and 2014 c 130 s 7 are each amended to read as follows:

(1) If an offender released by the board under RCW 9.95.420, 10.95.030(3), ((or)) 9.94A.730, or section 1 of this act 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 the release and sanction up to sixty days’ confinement in a local correctional facility for each violation, or revoke the release to community custody whenever an offender released by the board under RCW 9.95.420, 10.95.030(3), ((or)) 9.94A.730, or section 1 of this act violates any condition or requirement of community custody.

(3) If an offender released by the board under RCW 9.95.420, 10.95.030(3), ((or)) 9.94A.730, or section 1 of this act is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the board or a designee of the board 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 or designees 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 findings and conclusions which include the evidence relied upon, and the reasons the particular sanction was imposed. The board shall notify the offender of the right to appeal the sanction and the 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 thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. For offenders in total confinement, the hearing shall be held within thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. The board or its designee shall make a determination whether probable cause exists to believe the violation or violations occurred. The determination shall be made within forty-eight hours of receipt of the allegation;

(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 presiding hearing officer 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 upon a finding of violation is a probable sanction for the violation. The board may not revoke the release to community custody of any offender who was not represented by counsel at the hearing, unless the offender has waived the right to counsel; and

(e) The sanction shall take effect if affirmed by the presiding hearing officer.

(5) Within seven days after the presiding hearing officer’s decision, the offender may appeal the decision to the full board or 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: (a) The crime of conviction; (b) the violation committed; (c) the offender’s risk of reoffending; or (d) the safety of the community.

(6) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations.

Sec. 17.  RCW 9.95.440 and 2014 c 130 s 8 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, 10.95.030(3), ((or)) 9.94A.730, or section 1 of this act 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 under RCW 9.94A.704. 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.

NEW SECTION.  Sec. 18. This act applies retroactively to persons incarcerated on the effective date of this section, regardless of the date of the offense or conviction.

 

NEW SECTION.  Sec. 19. This act does not create any right or entitlement to release from incarceration before the end of a term of incarceration imposed by the court, but instead creates a right to petition and have a potential hearing by the post-conviction review board hearing on the petition.

 

 

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