In the March, 1995, issue of PLN I gave a rundown on most of the anti-prisoner and defendant legislation then pending in the legislature. After we had gone to press for that issue Ida Ballasiotes, the rabid chair of the House Acorrections committee (See PLN, March, 1995,) introduced HB 2010 which essentially rolled up a bunch of anti prisoner bills into one big bill. As detailed below, most of the proposed legislation passed but, not surprisingly, all legislation designed to rein in DOC growth and spending either died in conference committee or was vetoed by the governor. For those who still believe in liberals, it's worth noting that nearly all of the below listed legislation passed both houses of the legislature unanimously, there were no token dissenting or protest votes. Here's a rundown on what passed and is now law.
Prisons and Jails:
HB 2010 is the reincarnation of HB 1054. The latter bill was prefiled in the legislature and sought to completely eliminate the Extended Family Visiting (EFV) Program, weights, erotic and violent materials and television from prisons. While TV's, EFVs and weights survived this time, prisoners suffered serious setbacks and we can be sure the whackos will be back for more next year. When first introduced by Ballasiotes 2010 contained numerous portions setting forth policy on the EFV program, banning wide ranges of written materials, etc. It also included issues dear to the Republican right, can=t ban welfare, then let's prohibit welfare for any child conceived during an EFV. ASorry kid, you need to starve because mommy/daddy is a prisoner and its your fault. It also imposed significant cuts on the DOC, including elimination of 20% of its management (from secretary of corrections down to lieutenant), eliminated the use of live instructors in prison education courses, etc. These provisions were stricken from the final version that passed. While the purported reason for this legislation is to cut prison costs, staffing makes up 72% of the operational costs of running a prison, yet anything designed to limit those labor costs never made it into law. The token elements that did were vetoed. Readers should note that the Washington DOC employs over 6,100 people to hold some 11,000 prisoners captive. That 1 to 2 ratio is the second highest in the nation (only the federal Bureau of Prisons is higher). The real pork in prisons is, surprise, the pork. But you wouldn=t know that from reading these laws. The key to cutting prison costs is to do what corporations the world over do: cut staffing, reduce wages and slash benefits. Because cutting costs isn't a real goal, that won't happen. Here's what Washington prisoners have to look forward to with 2010.
Indigence, Work and Education:
The legislature now defines prisoner indigence as a prisoner having less than $10 on their account for thirty days prior to making a request for services. The DOC shall make a record of all services provided and note it as a debt to be collected whenever a prisoner=s institutional account exceeds $10. Readers should note that in Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991) the court found that an indigence level of $46 a month was realistic when prisoners had to buy hygiene items as well as litigation materials. The law states that all prisoners should be required to participate in DOC approved education or work programs. Eligible prisoners who refuse to participate in those programs available for free (and there aren't many) will lose privileges. Prisoners who refuse to financially contribute to a work or education program will be placed in another one. Refusal to pay won't result in the loss of privileges. The DOC is instructed to establish objective medical standards to determine when a prisoner is mentally or physically unable to participate in work/education programs. The DOC is instructed to conduct an assessment of all prisoners basic academic skill levels. Prisoners with less than an eighth grade academic level shall be placed in a combined education/work program.
Prisoners will be required to pay all or a portion of the costs and tuition associated with certain educational programs. The DOC is instructed to devise the payment formula, and base it on the prisoner=s ability to pay. Prisoners will pay some of the costs associated with second and subsequent vocational programs associated with work programs and an AA or BA program if placement is made under subsection b of section 5. Prisoners will be forced to pay all costs associated with courses they enter independent of the DOC and vocational programs not associated with the prisoners= work. Prisoners serving life without parole sentences won=t be required to participate in educational programming and cannot get more than one academic degree via a DOC educational program. Before the DOC builds or expands a prison it must adopt plans to use cable, closed circuit and satellite TV for education purposes. By December, 1996, the DOC must adopt a plan to reduce per pupil costs of instruction by Aincreasing the use of volunteer instructors and implementing technological efficiencies.
Earned Time and Paying for Privileges:
RCW 72.09.130 concerning earned early release time is amended to include the loss of privileges within the prison, in addition to earned time. Prisoners won=t receive earned early release days Aduring any time in which he or she refuses to participate in an available education or work program into which he or she has been placed under section 5 of this act. Prisoners will be provided with a copy of this new system by the DOC.
Prisoners will be required to contribute to the cost of Aprivileges. The department shall establish standards by which inmates shall contribute a portion of the department's capital costs of providing privileges, including television cable access, extended family visitation, weight lifting and other recreational sports equipment and supplies. The standards shall also require inmates to contribute a significant portion of the department's operating costs directly associated with providing privileges, including staff and supplies. Inmate contributions may be in the form of individual user fees assessed against an inmate's institution account, deductions from an inmate's gross wages or gratuities, or inmates collective contributions to the institutional welfare/betterment fund. The department shall make every effort to maximize individual inmate contributions to payment for privileges. The department shall not limit inmates financial support for privileges to contributions from the institutional welfare/betterment fund.
Taking Prisoner Money:
Section 8 of the law states: AWhen an inmate receives any funds in addition to his or her wages or gratuities, the additional funds shall be subject to the deductions in RCW 72.09.111(l)(a) and the priorities established in Chapter 72.11 RCW. This means that 35% of all money received by a prisoner will be seized by the DOC (20% goes to the DOC, 10% to a Asavings account to be given to the prisoner on release and 5% goes to the victim's compensation fund). This is in addition to any fines, restitution, child support, etc., a prisoner may already have. I have already filed suit on this portion of the law. Wright v. Riveland is pending in the US district court in Tacoma. I filed on June 20th and sought a TRO to halt enforcement of the law while the matter is litigated. As we go to press the case has been served and the TRO is awaiting a ruling. Readers will be advised of how it progresses. Anyone with questions on this should write to me directly.
The legislature did almost nothing with regards to the EFV program. What seems to have happened is that the DOC adopted an EFV policy that did everything the legislature wanted done, in many respects it was harsher than the proposed legislation (see PLN, March, 1995). To prevent the DOC from pulling a fast one, the legislature now requires the DOC to notify the house and senate corrections committees of any proposed changes and allow the committee's input before the changes are made. So legislative micro-management of the DOC is now enshrined into law. I am sure that this has not ended the attack on the EFV program, instead they got their foot into the door and I'm sure will be back to kick the door in next year. In the meantime, prisoners at all close custody prisons (Walla Walla and Clallam Bay) have lost their EFVs, no prisoner married after January 10, 1995, can get them with their spouse, etc.
Weights, Censorship and TVs:
Weight lifting survived but now prisoners found to have committed an aggravated assault against another person will have their weight lifting privileges suspended for at least two years, at which point the warden must review the prisoner's infraction record and determine if an additional suspension should be imposed because the prisoner poses a threat to the safety of others or the order of the facility. Another section states purchases of recreational equipment following the effective date of this act shall be cost-effective and, to the extent possible, minimize an inmate's ability to substantially increase muscle mass. Dietary supplements made for the sole purpose of increasing muscle mass shall not be available for purchase by inmates unless prescribed by a physician for medical purposes or for inmates officially competing in department sanctioned competitive weight lifting.
Prisoners can't acquire or purchase a TV for at least sixty days after arriving at a prison from the intake and evaluation process at Shelton or Purdy.
Previous versions of 2010 were big on banning anything deemed to be erotic violent or sexually explicit. This survived in a vague section 13 which instructs the DOC, in conjunction with the AG's office, to adopt by rule a uniform policy that prohibits receipt or possession of anything that is determined to be contraband. Gee, and we thought the DOC mail and property policies, plus the whim and caprice of individual guards, already did this. Given the deletion of the previous language prisoners can probably expect new and still more repressive rules on mail and property as it looks like the DOC cut a deal on this one too.
RCW 4.24.130 on name changes was amended. Prisoners seeking to change their name must give the DOC a copy of their application five days before entry of the order and if the name change is granted they will give the DOC a copy of the order within five days of entry, failure to do either will be a misdemeanor. Courts are instructed not to issue name change orders if it will Ainterfere with legitimate penological interests, except that no order shall be denied when the name change is requested for religious or legitimate cultural reasons or in recognition of marriage or dissolution of marriage. For a discussion on Washington prisoners' federal right to adopt another name see: Malik v. Brown, 16 F.3d 330 (9th Cir. 1994). Another section of the law states that prisoners who have a name change and do not use both their old name and new name to communicate with the DOC will be guilty of a misdemeanor.
Paying for Medical Care and Hygiene Items:
Washington prisoners will now be charged at least $3.00 each time they seek access to medical care. The money will be taken from the prisoner's account and sent to the state's general fund. The law states that Offenders are required to make co-payments for initial health care visits that are offender initiated and, by rule adopted by the department, may be charged a co-payment for subsequent visits related to the medical condition which caused the initial visit. Offenders are not required to pay for emergency treatment or for visits initiated by health care staff or treatment of those conditions that constitute a serious health care need. Prisoners won't be refused care due to indigence and withdrawal of the co-payments won't take a prisoner's account below $10. [The next issue of PLN will contain an article on legal challenges to this type of law and the idiocy of passing laws like this.]
The DOC will report to the legislature how many prisoners sought medical care, the amount of co-payments assessed, how many were paid, those not collected due to indigence and the number not assessed due to the serious, emergency need or being staff initiated. The first report is due no later than October 1, 1996.
Prisoners will be required to pay for all personal hygiene items now distributed by the DOC. While prisoners who are indigent won't be denied hygiene items, the law states that charges for both hygiene items and health care will become debts to be collected by the DOC. The Office of Financial Management is instructed to contract a private research company to review DOC health care services and delivery, to include whether prison health care should be privatized.
Alien Offender Camps and Work Camps:
Something that attracted no attention from the corporate media is the law's provisions for the alien offender camp. Generally countries that lock people up and segregate them into special prisons because of their race are denounced as racist, at a minimum. The DOC is ordered to create a camp for alien offenders and have it operational no later than January 1, 1997. In a letter to the legislature Governor Lowry states he is not vetoing this section of the law despite the fact that it applies to all alien offenders, whether documented or not and whether the offense they are incarcerated for will result in their deportation or not. The camp goals, to expedite deportation and reduce costs, are not questioned by Mr. Lowry. He states: Of most importance, however, is the need to avoid any appearance that the State of Washington is sending an anti-alien message generally. We have all seen the regrettable results of cost saving or efficiency measures escalating into issues of discrimination or even ethnic separation. I have been assured, however, that no such message should be read into the language of this section.He cites a letter from Ballasiotes to the effect that only illegal alien offenders will be considered for the camp.
Now, what can be read into the language of this alien offender camp? Its goals are: A(a) Expedited deportation of alien offenders; (b) reduced daily costs of incarceration, (c) enhanced public benefit through an emphasis on inmate work and exemption from education programs other than those programs necessary for offenders to understand and follow directions; (d) minimum access to privileges; and (e) maximized use of non-state resources for the costs of incarceration. Except for section (a), I can easily see the remaining criteria being used to establish Dachau in 1933. The original concentration camps set up by the British government in South Africa, Nazis in Germany, etc., did not have as their goal the killing of the prisoners. Everyone knows that the alien offenders that are gong to be locked up in this camp will be almost entirely Hispanic with the bulk being from Mexico. A more accurate name would have been the AMexican prison bill. Will they be forced to wear a yellow star too? Or perhaps a Mexican flag.
The terms needed to qualify for the work ethic camp were changed. Prisoners with sentences between 16 and 36 months can now participate and drug offenders are specifically allowed, while sex and violent offenders are still excluded (the distinction is made because under Washington law drug offenses are considered violent. Courts will now specify that prisoners will serve their post camp sentences in community custody until the entire sentence is completed.
A new Ajoint committee on corrections cost efficiencies oversight is established in the state legislature, this is in addition to the corrections committees in both houses. We need more government to save money. This section expires July 1, 1997.
Studies in Slave Labor, Fences and Bunk Sharing:
The DOC is instructed to seek funding for incarcerating illegal aliens. These funds were recently appropriated by congress in the 1994 crime bill (PLN, Dec. 1994). The DOC is instructed to seek enforcement of federal laws criminalizing alien reentry. The DOC should submit several reports to the legislature, including progress on the deportation of illegal aliens, reviewing the use of perimeter security designs that will minimize or eliminate the need for staffed guard towers at prisons (California recently implemented use of electrified fences). And, in what has to be the stupidest piece of legislation to come out of Olympia in two weeks, The secretary shall review the feasibility and desirability of implementing a system to allow prison beds to be used on a rotational basis. The review shall include at least the following: (a) A fiscal analysis of the capital and operating costs of implementing a twelve hour scheduled rotation in which each prison cell and bed could be used by multiple inmates; and (b) an analysis of how the department would address safety issues that might arise from a rotation system that increases the amount of time inmates would spend out of their cells. Even prisoners at Aushwitz had their own bunk!
The correctional industries board of directors is instructed to review the possibility of expanding work programs in: recycling inorganic materials, redesigning and prefabrication of industrial products, data management services, industrial food services, construction and maintenance of adult and juvenile prisons in the state, building migrant worker housing using state and federal housing funds (could this be the agricultural interests of Eastern Washington state seeking to exploit prison slave labor to subsidize their exploitation of migrant farm labor?), horticulture specialty crops and, my favorite, Ause of the Airway Heights prison kitchen to prepare kosher meals for correctional facilities inside and outside Washington state. The board will also review educational programs now available and see if they adequately prepare prisoners for slave labor jobs.
RCW 9.95.210 is amended so that when courts suspend sentences they can order probationers to report to DOC designees rather than to the court. The state Law and Justice Advisory Council is instructed to propose standards for the supervision of misdemeanant probationers. Whenever a misdemeanant probationer is under DOC supervision the DOC may collect up to $100 a month to help pay for the probationer's supervision.
Conclusion of 2010:
The last portions of the bill are interesting. Section 39 stated: AIf specific funding for the purpose of this act, referencing this by bill number, is not provided by June 30, 1995, in the omnibus appropriations act, this act shall be null and void. Readers will note that this act, which purports to save money is going to require a lot of money to implement. Section 40 states AThis act is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions, and shall take effect immediately.
Governor Lowry vetoed section 39 noting it was inconsistent with section 40. If something is necessary for the preservation of the public peace, health and safety Ait cannot also be subject to the uncertainties of the appropriation process. Lowry signed the law on June 15, 1995, which is when it went into effect. Despite being an Aemergency it will take the DOC a while to implement the various provisions of the law.
Other Prison Laws:
Jail industries: HB 1929 passed unanimously in both houses. It amends RCW 36.110.130 to allow jails to enter into the slave labor business by contracting jail prisoners out to private sector business, industry and nonprofit groups. Also included, for the first time, is allowing jail detainees to produce goods directly for the county for sale to either the state, the county or private business, these are called Atax reduction industries. It requires businesses or counties using jail slave labor to have industrial insurance but doesn't allow the detainee to collect money for any injuries suffered until discharged from custody. The law adds a section which purports to grant immunity from civil suit to all members of the state jail industries board if the act is performed in good faith. The law repeals RCW 36.110.040.
Looting the Inmate Betterment Fund:
HB 1136 amends RCW 7.68.090 and adds a new section to RCW 72.09. This law orders the DOC to transfer Atwenty five percent of the total annual revenues and receipts received in each institutional betterment fund subaccount to the department of labor and industries for the purpose of providing direct benefits to crime victims through the crime victims compensation program as outlined in chapter 7.68 RCW. This transfer takes priority over any expenditure of betterment funds and shall be reflected on the monthly financial statements of each institution's betterment fund subaccount. The purpose of the inmate betterment fund has historically been to pay for recreation items for prisoners, such as sports equipment, dayroom supplies, EFV expenses, etc. There is little case law on challenging how betterment fund money is spent, historically it has operated as a warden's slush fund where prisoners have no voice in determining how or where the money is spent. But Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994), PLN, March, 1995, recently discussed limits on DOC appropriation of betterment funds for purposes they were not intended for.
SB 5905 creates a new crime of Persistent Prison Misbehavior. Realizing that with little good time left, many prisoners will soon lose whatever good time they have, leaving them with nothing to lose, likewise for the many prisoners doing sentences of life without parole. The new statute states: AAn inmate of a state correctional institution who is serving a sentence for an offense committed on or after August 1, 1995, commits the crime of persistent prison misbehavior if the inmate knowingly commits a serious infraction, that does not constitute a Class A or class B felony, after losing all potential earned early release time credit. This crime is classified as a class C felony and ranked at level 5 on the SRA's sentencing grid. Any convictions must be served consecutive to other sentences imposed. This law will create some interesting due process and administrative problems. While prisoners have no right to full due process in a disciplinary proceeding they do at a criminal trial. Does this mean the prosecutor must prove the disciplinary infraction was committed beyond a reasonable doubt? Given the time and expense involved in a criminal trial we=ll see how often this law is invoked.
The biggest change in criminal law was the passing of initiative 159, the AHard Time for Armed Crime@ initiative which will increase sentences involving weapons as well as expand the use of the death penalty. For a detailed analysis of this law refer to the August, 1994, issue of PLN, copies are still available for $1.00, or send a SASE for a copy of the individual article.
Drug Treatment: HB 1549 significantly amended RCW 9.94A.030 to allow defendants convicted of manufacturing, delivery or possession of Schedule 1 and 2 narcotics to be sentenced to a treatment oriented sentenced, including electronic monitoring, home detention, etc.
Charging Misdemeanants: SB 5523 amended RCW 10.01.160 to allow judges to order defendants convicted of a misdemeanor to pay up to $50 a day to pay for their Acost of incarceration.
DOC Imposes Sanctions: HB 1280 was passed into law, this amended RCW 9.94A.200 so that whenever a criminal defendant violates, or is accused of violating, any condition of his sentence the DOC, rather than a sentencing judge, can hold hearings and impose sentence for the violation. The DOC is now permitted to impose a wide variety of community sanctions as punishment for alleged violators, including electronic monitoring, jail time, home detention, work crews, etc. The DOC can only impose the punishment if the accused agrees to it and signs a stipulated agreement with the DOC. In the event no such agreement is reached, the case goes back to the trial court. The DOC must send copies of the stipulated agreements to the court and if the court isn't satisfied with the punishment imposed it can schedule a hearing and modify the DOC's sanctions.
Community Supervision: HB 1081 and SB 5065 modify RCW 9.94A.200 so that terms imposed on second or later sentences community supervision will begin with the first sentence and will be treated as violations of the community supervision sentence being served.
DOC Records: HB 1893 amended RCW 72.09.050 and added a new section to it. This added to the DOC Secretary=s powers so that he/she can certify and maintain records within the DOC for court purposes. It authorizes the DOC to charge fees for the reproduction, transport, etc., of these records.
Restitution: HB 1047 modified RCW 9.94A.140 regarding restitution in criminal cases. It extends the time in which a restitution hearing may be scheduled by the trial court from 60 to 180 days. AThe court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount. Trial courts are now instructed to identify, in the sentence and judgment, the victim(s) entitled to restitution and the amount due each. Either the state or the victim can enforce the court ordered restitution Ain the same manner as a judgment in a civil action. Which means they need to go through a garnishment proceeding.
Sex Offender Registration: SB 5326 modified RCW 9A.44.130 concerning sex offender registration. It expands the requirements of those who must now register. Defendants found Anot guilty by reason of insanity and sex offenders under federal jurisdiction must now register as well. Likewise, sex offenders who move to Washington from other states or other countries must now register. A new section added to the statute states that whenever a sex offender registers with the county sheriff, the sheriff must make an attempt to verify that the registrant in fact resides at the address given. This includes sending certified letters and making visits to the registered sex offender.
Indigent Defense: HB 1237 added new sections and amended RCW 10.73 and 13.40.145 concerning state funded defense of the indigent. The law states AThe legislature finds that it is appropriate to extend the right to counsel at state expense beyond constitutional requirements in certain limited circumstances to persons who are indigent.... The law states that counsel will be provided at state expense to indigent defendants so they can file appeals as a matter of right; respond to motions for discretionary review filed by the state; file a collateral attack on their conviction if they are under a sentence of death; are not sentenced to death and request counsel to prosecute a collateral attack on their conviction that has been found non-frivolous by the chief judge; to respond to a collateral attack by the state; to prosecute a motion for a petition for review in the state supreme or appeals court.
In another section, the law states that courts can require the parents of juvenile defendants to pay the costs of defense. Courts can also require defendants to pay the costs the state incurred in prosecuting or defending an attack by defendant on their criminal conviction or sentence. Costs that can be taxed against the defendant are those involving reproduction of the trial transcript (which usually costs thousands of dollars), clerk's papers and fees for appellate counsel. The law states that parties may petition the court for remission of the costs assessed if payment would constitute an undue hardship.
Jail Riots: HB 1117 amended RCW 9.94.010 so that criminal sanctions for rioting, hostage taking, drug and weapons possession that previously applied only to state prisoners now apply to those confined in county jails as well.
Self Defense: SB 5278 modified RCW 9A. 16.110 so that anyone found not guilty of a crime by reason of self defense can be reimbursed for their legal expenses by the state.
Criminal History: HB 1140 amends RCW 9.94A.60 regarding the use of criminal history in sentencing defendants. The main changes are moderating the washout period in which offenses can be used for sentencing purposes. The law now computes the time to include when the crime was committed, rather than when the conviction occurred. Federal convictions will now be scored as a comparable state offense, if the offense is exclusively federal it will be scored as a class C felony. Offenses committed in different counties or charged in different indictments will not be presumed to be the same criminal conduct for sentencing purposes. This means offender scores will be higher with a lesser likelihood of concurrent sentences being imposed. A new section allowing sentencing courts to impose above the guideline sentences is added. Courts can now rely on unscored misdemeanors and foreign criminal history.
Crime Victims: HB 1858 was passed, it creates the office of crime victims advocacy as part of the Department of Community, Trade and Economic Development. Its purpose is to assist communities in planing and implementing services for crime victims, advocating on their behalf and advise local and state government on policies and practices impacting crime victims. So much for reducing the role of government.
HB 1610 amends RCW 9.94A.080 which concerns plea bargains to include a section mandating that prosecutors Amake reasonable efforts to inform the victim of the violent offense of the nature of and reasons for the plea agreement, including all offenses the prosecutor has agreed not to file, and ascertain any objections or comments the victim has to the plea agreement. Prosecutors must tell the court, on the record, if the victim(s) expressed any objections to the plea agreement .
SB 5400 significantly amends several statutes relating to victim compensation. Under the new law, if a sentencing court does not enter a restitution order resulting in payments to the victim the DOC is ordered, within a year of sentence being imposed, to petition the court for entry of a restitution order. The DOC will be the party issuing notice of debt and the party served has thirty days to respond and request a superior court hearing.
In the October issue of PLN we will analyze the Washington DOC budget and spending authority.
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