ENGROSSED SECOND SUBSTITUTE SENATE BILL 5036
State of Washington 67th Legislature 2021 Regular Session
By Senate Ways & Means (originally sponsored by Senators Dhingra,
Carlyle, Darneille, Das, Hasegawa, Mullet, Nguyen, Pedersen,
Stanford, Wellman, and Wilson, C.)
READ FIRST TIME 02/22/21.
1 AN ACT Relating to the release of incarcerated individuals from
2 total confinement prior to the expiration of a sentence; amending RCW
3 9.94A.501, 9.94A.565, 9.94A.633, 9.94A.728, and 9.94A.880; reenacting
4 and amending RCW 9.94A.885; adding a new section to chapter 9.94A
5 RCW; creating a new section; and providing an expiration date.
6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
7 Sec. 1. RCW 9.94A.501 and 2020 c 275 s 1 are each amended to
8 read as follows:
9 (1) The department shall supervise the following ((offenders))
10 individuals who are sentenced to probation in superior court,
11 pursuant to RCW 9.92.060, 9.95.204, or 9.95.210:
12 (a) ((Offenders)) Individuals convicted of:
13 (i) Sexual misconduct with a minor second degree;
14 (ii) Custodial sexual misconduct second degree;
15 (iii) Communication with a minor for immoral purposes; and
16 (iv) Violation of RCW 9A.44.132(2) (failure to register); and
17 (b) ((Offenders)) Individuals who have:
18 (i) A current conviction for a repetitive domestic violence
19 offense where domestic violence has been pleaded and proven after
20 August 1, 2011; and
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 1 (ii) A prior conviction for a repetitive domestic violence
2 offense or domestic violence felony offense where domestic violence
3 has been pleaded and proven after August 1, 2011.
4 (2) ((Misdemeanor)) Individuals convicted of misdemeanor and
5 gross misdemeanor ((offenders)) offenses supervised by the department
6 pursuant to this section shall be placed on community custody.
7 (3) The department shall supervise every individual convicted of
8 a felony ((offender)) and sentenced to community custody pursuant to
9 RCW 9.94A.701 or 9.94A.702 whose risk assessment classifies the
10 ((offender)) individual as one who is at a high risk to reoffend.
11 (4) Notwithstanding any other provision of this section, the
12 department shall supervise an ((offender)) individual sentenced to
13 community custody regardless of risk classification if the
14 ((offender)) individual:
15 (a) Has a current conviction for a sex offense or a serious
16 violent offense and was sentenced to a term of community custody
17 pursuant to RCW 9.94A.701, 9.94A.702, or 9.94A.507;
18 (b) Has been identified by the department as a dangerous mentally
19 ill offender pursuant to RCW 72.09.370;
20 (c) Has an indeterminate sentence and is subject to parole
21 pursuant to RCW 9.95.017;
22 (d) Has a current conviction for violating RCW 9A.44.132(1)
23 (failure to register) and was sentenced to a term of community
24 custody pursuant to RCW 9.94A.701;
25 (e)(i) Has a current conviction for a domestic violence felony
26 offense where domestic violence has been pleaded and proven after
27 August 1, 2011, and a prior conviction for a repetitive domestic
28 violence offense or domestic violence felony offense where domestic
29 violence was pleaded and proven after August 1, 2011. This subsection
30 (4)(e)(i) applies only to offenses committed prior to July 24, 2015;
31 (ii) Has a current conviction for a domestic violence felony
32 offense where domestic violence was pleaded and proven. The state and
33 its officers, agents, and employees shall not be held criminally or
34 civilly liable for its supervision of an ((offender)) individual
35 under this subsection (4)(e)(ii) unless the state and its officers,
36 agents, and employees acted with gross negligence;
37 (f) Was sentenced under RCW 9.94A.650, 9.94A.655, 9.94A.660,
38 9.94A.670, or 9.94A.711;
39 (g) Is subject to supervision pursuant to RCW 9.94A.745; or
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 1 (h) Was convicted and sentenced under RCW 46.61.520 (vehicular
2 homicide), RCW 46.61.522 (vehicular assault), RCW 46.61.502(6)
3 (felony DUI), or RCW 46.61.504(6) (felony physical control).
4 (5) The department shall supervise any ((offender who is))
5 individual released by the indeterminate sentence review board
6 ((and)) who was sentenced to community custody or subject to
7 community custody under the terms of release.
8 (6) The department shall supervise any individual granted
9 conditional commutation pursuant to RCW 9.94A.885.
10 (7) The department is not authorized to, and may not, supervise
11 any ((offender)) individual sentenced to a term of community custody
12 or any probationer unless the ((offender)) individual or probationer
13 is one for whom supervision is required under this section ((or RCW
14 9.94A.5011)).
15 (((7))) (8) The department shall conduct a risk assessment for
16 every individual convicted of a felony ((offender)) and sentenced to
17 a term of community custody who may be subject to supervision under
18 this section ((or RCW 9.94A.5011)).
19 (((8))) (9) The period of time the department is authorized to
20 supervise an ((offender)) individual under this section may not
21 exceed the duration of community custody specified under RCW
22 9.94B.050, 9.94A.701 (1) through (8), or 9.94A.702, except in cases
23 where the court has imposed an exceptional term of community custody
24 under RCW 9.94A.535.
25 (((9))) (10) The period of time the department is authorized to
26 supervise an ((offender)) individual under this section may be
27 reduced by the earned award of supervision compliance credit pursuant
28 to RCW 9.94A.717.
29 Sec. 2. RCW 9.94A.565 and 1994 c 1 s 5 are each amended to read
30 as follows:
31 (1) Nothing in this chapter ((1, Laws of 1994)) or chapter 10.95
32 RCW shall ever be interpreted or construed as to reduce or eliminate
33 the power of the governor to grant a pardon or clemency to any
34 ((offender)) incarcerated individual on an individual case-by-case
35 basis. However, the people recommend that ((any offender)):
36 (a) Any incarcerated individual subject to total confinement for
37 life without the possibility of parole not be considered for release
38 until the ((offender)) incarcerated individual has ((reached the age
39 of at least sixty years old and has)) been judged to ((be)) no longer
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 1 be a threat to society((. The people further recommend that sex
2 offenders)) and has served at least 20 years in total confinement or
3 25 years in total confinement if the incarcerated individual was
4 sentenced pursuant to chapter 10.95 RCW;
5 (b) Incarcerated individuals who have been convicted of a sex
6 offense be held to the utmost scrutiny under this subsection
7 regardless of age; and
8 (c) Release take the form of a conditional commutation that
9 includes a period of law-abiding behavior in the community.
10 (2) Nothing in this section shall ever be interpreted or
11 construed to grant any release for the purpose of reducing prison
12 overcrowding. Furthermore, the governor shall provide twice yearly
13 reports on the activities and progress of ((offenders)) individuals
14 subject to total confinement for life without the possibility of
15 parole who are released through executive action during his or her
16 tenure. These reports shall continue for not less than ((ten)) 10
17 years after the release of the ((offender)) individual or upon the
18 death of the released ((offender)) individual.
19 Sec. 3. RCW 9.94A.633 and 2012 1st sp.s. c 6 s 2 are each
20 amended to read as follows:
21 (1)(a) An ((offender)) individual who violates any condition or
22 requirement of a sentence may be sanctioned by the court with up to
23 ((sixty)) 60 days' confinement for each violation or by the
24 department with up to ((thirty)) 30 days' confinement as provided in
25 RCW 9.94A.737.
26 (b) In lieu of confinement, an ((offender)) individual may be
27 sanctioned with work release, home detention with electronic
28 monitoring, work crew, community restitution, inpatient treatment,
29 daily reporting, curfew, educational or counseling sessions,
30 supervision enhanced through electronic monitoring, or any other
31 community-based sanctions.
32 (2) If an ((offender)) individual was under community custody
33 pursuant to one of the following statutes, the ((offender))
34 individual may be sanctioned as follows:
35 (a) If the ((offender)) individual was transferred to community
36 custody in lieu of earned early release in accordance with RCW
37 9.94A.728, the ((offender)) individual may be transferred to a more
38 restrictive confinement status to serve up to the remaining portion
39 of the sentence, less credit for any period actually spent in
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 1 community custody or in detention awaiting disposition of an alleged
2 violation.
3 (b) If the ((offender)) individual was sentenced under the drug
4 offender sentencing alternative set out in RCW 9.94A.660, the
5 ((offender)) individual may be sanctioned in accordance with that
6 section.
7 (c) If the ((offender)) individual was sentenced under the
8 parenting sentencing alternative set out in RCW 9.94A.655, the
9 ((offender)) individual may be sanctioned in accordance with that
10 section.
11 (d) If the ((offender)) individual was sentenced under the
12 special sex offender sentencing alternative set out in RCW 9.94A.670,
13 the suspended sentence may be revoked and the ((offender)) individual
14 committed to serve the original sentence of confinement.
15 (e) If the ((offender)) individual was sentenced to a work ethic
16 camp pursuant to RCW 9.94A.690, the ((offender)) individual may be
17 reclassified to serve the unexpired term of his or her sentence in
18 total confinement.
19 (f) If ((a)) an individual convicted of a sex ((offender))
20 offense was sentenced pursuant to RCW 9.94A.507, the ((offender))
21 individual may be transferred to a more restrictive confinement
22 status to serve up to the remaining portion of the sentence, less
23 credit for any period actually spent in community custody or in
24 detention awaiting disposition of an alleged violation.
25 (g) If the individual was granted conditional commutation
26 pursuant to RCW 9.94A.885, the individual may be transferred to a
27 more restrictive confinement status to serve up to the remaining
28 portion of the sentence, less credit for any period actually spent in
29 community custody or in detention awaiting disposition of an alleged
30 violation.
31 (3) If a probationer is being supervised by the department
32 pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, the probationer may
33 be sanctioned pursuant to subsection (1) of this section. The
34 department shall have authority to issue a warrant for the arrest of
35 an ((offender)) individual who violates a condition of community
36 custody, as provided in RCW 9.94A.716. Any sanctions shall be imposed
37 by the department pursuant to RCW 9.94A.737. Nothing in this
38 subsection is intended to limit the power of the sentencing court to
39 respond to a probationer's violation of conditions.
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1 (4) The parole or probation of an ((offender)) individual who is
2 charged with a new felony offense may be suspended and the
3 ((offender)) individual placed in total confinement pending
4 disposition of the new criminal charges if:
5 (a) The ((offender)) individual is on parole pursuant to RCW
6 9.95.110(1); or
7 (b) The ((offender)) individual is being supervised pursuant to
8 RCW 9.94A.745 and is on parole or probation pursuant to the laws of
9 another state.
10 Sec. 4. RCW 9.94A.728 and 2018 c 166 s 2 are each amended to
11 read as follows:
12 (1) No ((person)) incarcerated individual serving a sentence
13 imposed pursuant to this chapter and committed to the custody of the
14 department shall leave the confines of the correctional facility or
15 be released prior to the expiration of the sentence except as
16 follows:
17 (a) An ((offender)) incarcerated individual may earn early
18 release time as authorized by RCW 9.94A.729;
19 (b) An ((offender)) incarcerated individual may leave a
20 correctional facility pursuant to an authorized furlough or leave of
21 absence. In addition, ((offenders)) incarcerated individuals may
22 leave a correctional facility when in the custody of a corrections
23 officer or officers;
24 (c)(i) The secretary may authorize an extraordinary medical
25 placement for an ((offender)) incarcerated individual when all of the
26 following conditions exist:
27 (A) The ((offender)) incarcerated individual has a medical
28 condition that is chronic or serious and is expected to require
29 costly care or treatment;
30 (B) The ((offender poses a)) incarcerated individual has been
31 assessed as low risk to the community ((because he or she is
32 currently physically incapacitated due to age or the medical
33 condition or is expected to be so)) at the time of release; and
34 (C) It is expected that granting the extraordinary medical
35 placement will result in a cost savings to the state.
36 (ii) An ((offender)) incarcerated individual sentenced to death
37 or to life imprisonment without the possibility of release or parole
38 is not eligible for an extraordinary medical placement.
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 1 (iii) The secretary shall require electronic monitoring for all
2 ((offenders)) individuals in extraordinary medical placement unless
3 the electronic monitoring equipment is detrimental to the
4 individual's health, interferes with the function of the
5 ((offender's)) individual's medical equipment, or results in the loss
6 of funding for the ((offender's)) individual's medical care, in which
7 case, an alternative type of monitoring shall be utilized. The
8 secretary shall specify who shall provide the monitoring services and
9 the terms under which the monitoring shall be performed. The
10 requirement for electronic monitoring shall be waived if the medical
11 condition as certified by the individual's treating physician
12 prevents the individual from being independently mobile.
13 (iv) The secretary may revoke an extraordinary medical placement
14 under this subsection (1)(c) at any time.
15 (v) Persistent offenders are not eligible for extraordinary
16 medical placement;
17 (d) The governor, upon recommendation from the clemency and
18 pardons board, may grant ((an extraordinary)):
19 (i) Extraordinary release for reasons of serious health problems,
20 senility, advanced age, extraordinary meritorious acts, or other
21 extraordinary circumstances; or
22 (ii) Conditional commutation pursuant to section 7 of this act;
23 (e) No more than the final ((twelve)) 12 months of the
24 ((offender's)) incarcerated individual's term of confinement may be
25 served in partial confinement for aiding the ((offender))
26 incarcerated individual with: Finding work as part of the work
27 release program under chapter 72.65 RCW; or reestablishing himself or
28 herself in the community as part of the parenting program in RCW
29 9.94A.6551. This is in addition to that period of earned early
30 release time that may be exchanged for partial confinement pursuant
31 to RCW 9.94A.729(5)(d);
32 (f) No more than the final six months of the ((offender's))
33 incarcerated individual's term of confinement may be served in
34 partial confinement as home detention as part of the graduated
35 reentry program developed by the department under RCW 9.94A.733;
36 (g) The governor may pardon any ((offender)) incarcerated
37 individual;
38 (h) The department may release an ((offender)) incarcerated
39 individual from confinement any time within ((ten)) 10 days before a
40 release date calculated under this section;
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 1 (i) An ((offender)) incarcerated individual may leave a
2 correctional facility prior to completion of his or her sentence if
3 the sentence has been reduced as provided in RCW 9.94A.870;
4 (j) Notwithstanding any other provisions of this section, an
5 ((offender)) incarcerated individual sentenced for a felony crime
6 listed in RCW 9.94A.540 as subject to a mandatory minimum sentence of
7 total confinement shall not be released from total confinement before
8 the completion of the listed mandatory minimum sentence for that
9 felony crime of conviction unless allowed under RCW 9.94A.540; and
10 (k) Any ((person)) individual convicted of one or more crimes
11 committed prior to the person's ((eighteenth)) 18th birthday may be
12 released from confinement pursuant to RCW 9.94A.730.
13 (2) ((Offenders)) Individuals residing in a juvenile correctional
14 facility placement pursuant to RCW 72.01.410(1)(a) are not subject to
15 the limitations in this section.
16 Sec. 5. RCW 9.94A.880 and 2011 c 336 s 335 are each amended to
17 read as follows:
18 (1) The clemency and pardons board is established as a board
19 within the office of the governor