ENGROSSED SECOND SUBSTITUTE HOUSE BILL 1189
State of Washington 68th Legislature 2023 Regular Session
By House Appropriations (originally sponsored by Representatives
Hackney, Reed, Simmons, Wylie, Santos, and Ormsby)
READ FIRST TIME 02/24/23.
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, and 9.94A.880; reenacting and
4 amending RCW 9.94A.728 and 9.94A.885; adding new sections to chapter
5 9.94A RCW; and creating a new section.
6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
7 Sec. 1. RCW 9.94A.501 and 2021 c 242 s 2 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, 9.94A.711, or 9.94A.695;
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 (9), 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 chapter 1, Laws of 1994 or chapter 10.95 RCW shall
32 ever be interpreted or construed as to reduce or eliminate the power
33 of the governor to grant a pardon or clemency to any ((offender))
34 incarcerated individual on an individual case-by-case basis. However,
35 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 commutation that includes a period
9 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 2021 c 242 s 4 are each amended to
20 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 under the mental
16 health sentencing alternative set out in RCW 9.94A.695, the
17 ((offender)) individual may be sanctioned in accordance with that
18 section.
19 (f) If the ((offender)) individual was sentenced to a work ethic
20 camp pursuant to RCW 9.94A.690, the ((offender)) individual may be
21 reclassified to serve the unexpired term of his or her sentence in
22 total confinement.
23 (g) If ((a sex offender)) an individual convicted of a sex
24 offense was sentenced pursuant to RCW 9.94A.507, the ((offender))
25 individual may be transferred to a more restrictive confinement
26 status to serve up to the remaining portion of the sentence, less
27 credit for any period actually spent in community custody or in
28 detention awaiting disposition of an alleged violation.
29 (h) If the individual was granted conditional commutation
30 pursuant to RCW 9.94A.885, the individual may be transferred to a
31 more restrictive confinement status to serve up to the remaining
32 portion of the sentence, less credit for any period actually spent in
33 community custody or in detention awaiting disposition of an alleged
34 violation.
35 (3) If a probationer is being supervised by the department
36 pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, the probationer may
37 be sanctioned pursuant to subsection (1) of this section. The
38 department shall have authority to issue a warrant for the arrest of
39 an ((offender)) individual who violates a condition of community
40 custody, as provided in RCW 9.94A.716. Any sanctions shall be imposed
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 1 by the department pursuant to RCW 9.94A.737. Nothing in this
2 subsection is intended to limit the power of the sentencing court to
3 respond to a probationer's violation of conditions.
4 (4) The parole or probation of an ((offender)) individual who is
5 charged with a new felony offense may be suspended and the
6 ((offender)) individual placed in total confinement pending
7 disposition of the new criminal charges if:
8 (a) The ((offender)) individual is on parole pursuant to RCW
9 9.95.110(1); or
10 (b) The ((offender)) individual is being supervised pursuant to
11 RCW 9.94A.745 and is on parole or probation pursuant to the laws of
12 another state.
13 Sec. 4. RCW 9.94A.728 and 2021 c 311 s 19 and 2021 c 266 s 2 are
14 each reenacted and amended to read as follows:
15 (1) No ((person)) incarcerated individual serving a sentence
16 imposed pursuant to this chapter and committed to the custody of the
17 department shall leave the confines of the correctional facility or
18 be released prior to the expiration of the sentence except as
19 follows:
20 (a) An ((offender)) incarcerated individual may earn early
21 release time as authorized by RCW 9.94A.729;
22 (b) An ((offender)) incarcerated individual may leave a
23 correctional facility pursuant to an authorized furlough or leave of
24 absence. In addition, ((offenders)) incarcerated individuals may
25 leave a correctional facility when in the custody of a corrections
26 officer or officers;
27 (c)(i) The secretary may authorize an extraordinary medical
28 placement for an ((offender)) incarcerated individual when all of the
29 following conditions exist:
30 (A) The ((offender)) incarcerated individual has a medical
31 condition that is serious and is expected to require costly care or
32 treatment;
33 (B) The ((offender poses a)) incarcerated individual has been
34 assessed as low risk to the community ((because he or she is
35 currently physically incapacitated due to age or the medical
36 condition or is expected to be so)) at the time of release; and
37 (C) It is expected that granting the extraordinary medical
38 placement will result in a cost savings to the state.
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 1 (ii) An ((offender)) incarcerated individual sentenced to death
2 or to life imprisonment without the possibility of release or parole
3 is not eligible for an extraordinary medical placement.
4 (iii) The secretary shall require electronic monitoring for all
5 ((offenders)) individuals in extraordinary medical placement unless
6 the electronic monitoring equipment is detrimental to the
7 individual's health, interferes with the function of the
8 ((offender's)) individual's medical equipment, or results in the loss
9 of funding for the ((offender's)) individual's medical care, in which
10 case, an alternative type of monitoring shall be utilized. The
11 secretary shall specify who shall provide the monitoring services and
12 the terms under which the monitoring shall be performed. The
13 requirement for electronic monitoring shall be waived if the medical
14 condition as certified by the individual's treating physician
15 prevents the individual from being independently mobile.
16 (iv) The secretary may revoke an extraordinary medical placement
17 under this subsection (1)(c) at any time.
18 (v) Persistent offenders are not eligible for extraordinary
19 medical placement;
20 (d) The governor, upon recommendation from the clemency and
21 pardons board, may grant an extraordinary release ((for)):
22 (i) For reasons of serious health problems, senility, advanced
23 age, extraordinary meritorious acts, or other extraordinary
24 circumstances; or
25 (ii) Pursuant to section 7 of this act;
26 (e) No more than the final ((twelve)) 12 months of the
27 ((offender's)) incarcerated individual's term of confinement may be
28 served in partial confinement for aiding the ((offender))
29 incarcerated individual with: Finding work as part of the work
30 release program under chapter 72.65 RCW; or reestablishing himself or
31 herself in the community as part of the parenting program in RCW
32 9.94A.6551. This is in addition to that period of earned early
33 release time that may be exchanged for partial confinement pursuant
34 to RCW 9.94A.729(5)(d);
35 (f)(i) No more than the final five months of the ((offender's))
36 incarcerated individual's term of confinement may be served in
37 partial confinement as home detention as part of the graduated
38 reentry program developed by the department under RCW
39 9.94A.733(1)(a);
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 1 (ii) For eligible ((offenders)) individuals under RCW
2 9.94A.733(1)(b), after serving at least four months in total
3 confinement in a state correctional facility, an ((offender))
4 incarcerated individual may serve no more than the final 18 months of
5 the ((offender's)) incarcerated individual's term of confinement in
6 partial confinement as home detention as part of the graduated
7 reentry program developed by the department;
8 (g) The governor may pardon any ((offender)) incarcerated
9 individual;
10 (h) The department may release an ((offender)) incarcerated
11 individual from confinement any time within ((ten)) 10 days before a
12 release date calculated under this section;
13 (i) An ((offender)) incarcerated individual may leave a
14 correctional facility prior to completion of his or her sentence if
15 the sentence has been reduced as provided in RCW 9.94A.870;
16 (j) Notwithstanding any other provisions of this section, an
17 ((offender)) incarcerated individual sentenced for a felony crime
18 listed in RCW 9.94A.540 as subject to a mandatory minimum sentence of
19 total confinement shall not be released from total confinement before
20 the completion of the listed mandatory minimum sentence for that
21 fel