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Washington Enacts Sweeping New Sentencing Laws, Creates Parole Board for Sex Offenders

Washington Governor Gary Locke recently signed into law the biggest changes to that state's sentencing laws since the Sentencing Reform Act of 1984 (SRA) was established. The Bill, known formally as Third Engrossed Substitute Senate Bill 6151, creates, among other things, a new parole board exclusively for sex offenders, and converts the current "determinate sentence" handed out by the judge into the sex offender's "minimum term," subject to release only with the assent of the parole board.

The new law also mandates the immediate creation of a new halfway house for civilly committed sex offenders on McNeil Island and declares itself to "preempt and supersede" any and all other laws or local regulations impeding its construction.

Until 1984, Washington had a sentencing scheme not unlike many other states. The judge would hand down the sentence after conviction, and then the prisoner would become subject to the jurisdiction of the parole board, or, as it is now known in Washington, the Indeterminate Sentence Review Board (ISRB). If released before the expiration of the imposed sentence, the convict would then be on parole, and would continue under the jurisdiction of the parole board until his/her sentence expired.

When the SRA came into effect, sentences handed down by the judge were "determinate" sentences, meaning when you served your sentence, minus 1/3 for goodtime, you were released. The SRA eliminated the parole system altogether for those prisoners convicted after enactment of the SRA.

Now, a new system, which is targeted only at those who commit a sex offense or other serious offenses that are found to be sexually motivated, has been signed into law. According to Senator Hargrove, a co-sponsor of the Bill, its purpose is "to keep sex offenders under the state's thumb for the rest of their lives."

Here's how the new system will work: Washington's SRA created 16 seriousness levels into which all crimes are placed, from theft to aggravated murder. A defendant's seriousness level is combined with his offender score (a number representing any prior convictions) to give him a standard sentencing rangesay, 87 to 116 months for first degree assault. The defendant is then sentenced, in this example, to 90 months and (if the assault is committed on or after July 1, 1990) they are eligible to be released after serving 85 per cent of the sentence, which, in this case, would be 76.5 months.

In addition to seriousness levels, Washington categorizes felonies as Class A, B or C offenses, and assigns a "statutory maximum" sentence to each level. The statutory maximum sentence for Class A felonies is life, class B is 10 years, and class C is five years.

Under the new sentencing laws, a person convicted of the same first degree assault, but with a finding of sexual motivation, would still be sentenced by the judge to 90 months. But that's where the similarities end. The 90 months would now be considered the "minimum term," which he would be required to serve before even being allowed to see the parole board (ISRB). The "maximum term" is the statutory maximum for the offense level, in this example, life, since first degree assault is a class A felony.

Ninety days before the expiration of the minimum term, the board is required to conduct a hearing "to determine whether it is more likely than not that the offender will engage in sex offenses if released." If the Board chooses not to release the prisoner, it then sets a new "minimum term" not to exceed an additional two years.

Even after the Board releases a prisoner, the new law mandates that he is still under their jurisdiction until the expiration of the maximum term. Whenever a member of the Board, or a community corrections officer, has "reason to believe" a parolee has violated a condition of his parole, they "may cause the arrest of the offender pending a determination by the Board whether sanctions should be imposed", which may include serving the remaining portion of the maximum term.

The new law requires that a parolee accused of a violation of the conditions of community custody is entitled to a hearing, but that the hearing "shall be considered as offender disciplinary proceeding", which severely limits the scope of due process rights of the individual. A parolee is, however, entitled to counsel if revocation of parole is a possible sanction.

In setting, modifying, and enforcing conditions of parole, the new law declares that the Department of Corrections is deemed to be performing a "quasi-judicial function." This gives the DOC immunity from suit, but also arguably violates the constitutional separation of powers doctrine, critics say.

Other provisions of the new law concern the construction of a new halfway house for civilly committed sex offenders at, among other places, McNeil Island. The law authorizes the construction and operation of a 404-bed "secure community transition facility" at McNeil Island and offers bonuses of up to $100,000 per bed to any city or county that builds such a facility.

Efforts to build these facilities have met with widespread opposition, including numerous protests on McNeil Island, as well as other communities. The City of Steilacoom _ which operates the docks for the ferries that transport staff, visitors and prisoners to McNeil Island _ threatened to deny the State permission to use the docks. However, the new legislation attempts to remedy that situation in one fell swoop.

"Notwithstanding ... any other law, this statute preempts and supersedes local plans, development regulations, permitting requirements, inspection requirements, and all other laws necessary to enable" the construction and operation of a secure community transition facility (SCTF), Section 210 (2) of the law says.

In addition, the law declares that the operation of the SCTF mandates "access to adequate docking facilities on state-owned tidelands at the town of Steilacoom."

Some other notes concerning the new law: The provisions of the parole board and new sentencing scheme for sex offenders only applies to those persons convicted of a crime committed on or after July 1, 2001. It does not apply to any prisoner already incarcerated at the time of its passage.

And, concerning the establishment of the new halfway house on McNeil Island, Judge William Dwyer of the United States District Court for the Western District of Washington recently ruled in ongoing litigation over the conditions of confinement and treatment of civilly committed persons, that building a halfway house on McNeil Island was not sufficient to satisfy the court's concerns over the constitutionality of the State's civil commitment law.

As this new law has just recently been passed, it may take some time to see what challenges, if any, may be brought against it. There is almost sure to be constitutional arguments made against many of the provisions of the new sentencing laws, as well as sections of the statute that effectively declare all local permitting requirements, etc., null and void. We will report future developments as they occur.

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