Transcript The Basics of Sex Offender Sentencing in Washington

The Basics of Sex Offender
Sentencing in Washington
Prepared by Jim Morishima
Office of Program Research
Introduction
• Sex offender sentencing is fairly complicated:
– The Legislature has made many changes over the
years to sex offender sentencing.
– Because of the ex post facto clauses of the federal
and state constitutions, most of these changes apply
only to offenders who commit crimes on or after the
date the changes took effect; i.e., prospectively only.
– Therefore, the sentencing provisions that apply to a
given offender depend on when he or she committed
his or her crime.
• This presentation will cover sex offender
sentencing as it applies to an offender who
commits his or her crime today.
Introduction
• This presentation will give a brief overview
of the following aspects:
– Standard range sentences
– Community custody
– Persistent offenders
– “Determinate Plus” sentencing
– The Special Sex Offender Sentencing
Alternative (SSOSA)
– Civil restrictions on sex offenders
Part One:
Standard Range Sentencing
Standard Range Sentencing
• Determinate sentencing – offenders
sentenced within a specific range. No
parole.
• Put in place by the Legislature in 1981.
• Applies to offenders sentenced for crimes
committed on or after July 1, 1984 (prior to
July 1, 1984, – indeterminate sentencing).
Standard Range Sentencing
• A standard range sentence is determined
using a grid:
– The “seriousness level” of the crime on the
vertical axis.
– The offender’s criminal history (offender
score) on the horizontal axis.
Standard Range Sentencing
• The Legislature has assigned seriousness
levels to most felonies in RCW 9.94A.515.
• Seriousness levels range from
seriousness level I (crimes like Forgery
and Mineral Trespass) to seriousness level
XVI (Aggravated Murder in the first
degree)
• A felony that does not have a seriousness
level attached to it is known as an
“unranked felony.”
Seriousness
Level
Offense
XVI Aggravated Murder 1 (RCW 10.95.020)
XV Malicious Explosion 1 (RCW 70.74.280(1))
Murder 1 (RCW 9A.32.030)
XIV Trafficking 1 (RCW 9A.40.100(1))
XIII Malicious Explosion 2 (RCW 70.74.280(2))
Malicious Placement of an Explosive 1 (RCW 70.74.270(1))
XII Assault 1 (RCW 9A.36.011)
Rape 1 (RCW 9A.44.040)
Rape of a Child 1 (RCW 9A.44.073)
XI Manslaughter 1 (RCW 9A.32.060)
Rape 2 (RCW 9A.44.050)
X Child Molestation 1 (RCW 9A.44.083)
Kidnapping 1 (RCW 9A.40.020)
Leading Organized Crime (RCW 9A.82.060(1)(a))
IX Explosive Devices Prohibited (RCW 70.74.180)
Homicide by Watercraft by being under the Influence of Intoxicating Liquor or any Drug (RCW 88.12.029)
Robbery 1 (RCW 9A.56.200)
VIII Arson 1 (RCW 9A.48.020)
Promoting Prostitution 1 (RCW 9A.88.070)
VII Burglary 1 (RCW 9A.52.020)
Dealing in Depictions of Minor Engaged in Sexually Explicit Conduct (RCW 9.68A.050)
Drive-by Shooting (RCW 9A.36.045)
VI Intimidating a Judge (RCW 9A.72.160)
Theft of a Firearm (RCW 9A.56.300)
V Perjury 1 (RCW 9A.72.020)
Taking a Motor Vehicle Without Permission 1 (RCW 9A.56.070)
IV Robbery 2 (RCW 9A.56.210)
Theft of Livestock 1 (RCW 9A.56.080)
Threats to Bomb (RCW 9.61.160)
III Criminal Gang Intimidation (RCW 9A.46.120)
Cyberstalking (subsequent conviction or threat of death) (RCW 9.61.260(3))
II Theft of Rental, Leased, or Lease-purchased Property (valued at one thousand five hundred dollars or more)
((RCW 9A.56.096(5) (a))
I Forgery (RCW 9A.60.020)
** All Drug Offe ns e s are lo cate d o n a s e parate Drug Offe ns e Grid in the SRA
Standard Range Sentencing
• An offender’s offender score measures his
or her criminal history.
– In general, one prior offense = one point.
– Note that special scoring rules apply for
certain types of offenses:
• Some types of prior offenses (like non-violent
juvenile offenses) may count for only ½ point.
• Under some circumstances, some types of
offenses (like violent or serious violent offenses)
can be double- or triple-scored; i.e., the offenses
count as either 2 or 3 points.
Standard Range Sentencing
• An offender’s standard range is
determined by looking up the intersection
of the seriousness level of the offender’s
crime and the offender’s offender score on
the sentencing grid.
• In general, a court must sentence the
offender to a term within the standard
range (unless it imposes an “exceptional
sentence”).
Standard Range Sentencing
• Note: The range of confinement for “unranked felonies”
is 0-12 months, regardless of offender score.
• Note: Some felonies have mandatory minimum
sentences. For example, the mandatory minimum
sentence for Rape in the 1st degree is five years.
• Note: The standard sentence imposed by the court
cannot exceed the statutory maximum for the crime:
– Class A felonies: Life
– Class B felonies: 10 years
– Class C felonies: 5 years
Standard Range Sentencing
• Example:
• An offender with two prior offenses is
convicted of Custodial Sexual Misconduct
in the first degree (a class C felony).
– Seriousness level VII
– Offender score of 2
• The intersection between the seriousness
level of VII and an offender score of 2 on
the sentencing grid = 26-34 months.
Standard Range Sentencing
• Sex offenses to which standard range
sentencing applies:
–
–
–
–
–
Child Molestation 2 (first two offenses)
Child Molestation 3
Communication with a Minor for Immoral Purposes
Custodial Sexual Misconduct 1
Dealing in Depictions of a Minor Engaged in Sexually
Explicit Conduct
– Failure to Register as a Sex Offender
– Incest 1 (first two offenses)
– Incest 2 (first two offenses)
Standard Range Sentencing
• Sex offenses to which standard range
sentencing applies (continued):
–
–
–
–
–
–
–
–
–
Indecent Liberties (no forcible compulsion)
Patronizing a Juvenile Prostitute
Rape 3 (first two offenses)
Rape of a Child (statutory rape) 3
Sending or Bringing into the State Depictions of a
Minor Engaged in Sexually Explicit Conduct
Sexual Exploitation of a Minor (first two offenses)
Sexual Misconduct with a Minor 1
Sexually Violating Human Remains
Voyeurism
Part Two:
Community Custody
Community Custody
• “Community custody” refers to the portion
of an offender’s sentence spent in the
community under the supervision of the
DOC.
• Mandatory terms of community custody
are required for several type of offenses,
including sex offenses.
• Currently, the term of community custody
that must be imposed by the court for sex
offenses is 36-48 months.
Community Custody
• Conditions of community custody that
courts are required by statute to impose
include:
– Reporting to a community corrections officer.
– Working at DOC-approved education,
employment, or community restitution.
– Refraining from possessing or using
controlled substances, except for by
prescription.
– Paying supervision fees.
– Obtaining residence approval.
Community Custody
• Conditions of community custody that
courts are allowed by statute to impose
include:
– Remaining within or outside of a specified
geographic boundary.
– Refraining from having contact with the victim
of the crime.
– Refraining from consuming alcohol.
• Other conditions set by the DOC.
Community Custody
• In addition, the DOC is prohibited from approving the
residence of a sex offender whose victim was a minor
(convicted after June 6, 1996) if the residence:
– Includes a minor victim or a child of similar age or
circumstance who may be placed at substantial risk of
harm; or
– Is within close proximity of the current residence of a
minor victim, unless the residence of the victim cannot be
determined or unless the residency restriction would
interfere with family reunification efforts.
• The DOC is authorized to reject a residence location near
schools, child care centers, playgrounds, or other facilities
where children of similar age or circumstance to the victim
are present who may be placed at substantial risk of harm.
Part Three:
Persistent Offenders
Persistent Offenders
• Two main types of persistent offenders:
– “Three strikes” offenders
– “Two strikes” offenders
Persistent Offenders
• “Three Strikes”:
– Passed in 1993 by initiative.
– An offender convicted of a third strike (called a
“most serious offense”) will be sentenced to life
in prison without possibility of release.
Persistent Offenders
• Sex offenses that are strikes under the
three strikes law include:
– Child Molestation 2
– Incest 1
– Incest 2
– Indecent Liberties (w/o forcible compulsion)
– Rape 3
– Sexual Exploitation of a Minor
Persistent Offenders
• “Two Strikes”:
– Passed by the Legislature in 1997 for certain
sex offenses.
– An offender convicted of a second strike
offense will be sentenced to life in prison
without possibility of release.
Persistent Offenders
• Offenses that are strikes under the two
strikes law include:
– Child Molestation 1
– Indecent Liberties (by forcible compulsion)
– Rape 1
– Rape 2
– Rape of a Child 1
– Rape of a Child 2
Persistent Offenders
• Offenses that are strikes under the two strikes
law (continued):
– The following offenses committed with sexual
motivation:
•
•
•
•
•
•
•
•
•
Assault 1
Assault 2
Assault of a Child 1
Burglary 1
Homicide by Abuse
Kidnapping 1
Kidnapping 2
Murder 1
Murder 2
Part Four:
Determinate Plus Sentencing
Determinate Plus Sentencing
• Applies to:
– Offenders convicted of a first “two strikes” sex
offense.
– Offenders who have a prior first “two strikes”
sex offense who then commit another non-two
strikes sex offense.
Determinate Plus Sentencing
• “Determinate plus” offenders are
sentenced to both a minimum and a
maximum term.
– The minimum sentence is generally equal to
the standard range sentence.
– The maximum sentence is the statutory
maximum sentence for the crime:
• Life for class A felonies.
• 10 years for class B felonies
• 5 years for class C felonies
Determinate Plus Sentencing
• After the expiration of the minimum term, the Indeterminate
Sentence Review Board (ISRB) evaluates the offender.
• The ISRB must order the release of the offender unless the
offender is likelier than not to commit a predatory sex
offense.
• If the person is not released, the ISRB must re-evaluate the
offender at least every two years.
• If the offender is released, he or she is on community
custody status for the remainder of his or her maximum
term.
• Under HB 1147 (passed in 2005), the conditions of
community custody for certain “determinate plus” offenders
sentenced for crimes committed on or after July 24, 2005
must include a prohibition against living within two blocks of
a school.
Determinate Plus Sentencing
• Example:
– An offender with no priors is convicted of
Rape of a Child 1 (class A, seriousness level
XII).
– The offender will normally be given a
minimum term of 93-123 months and a
maximum sentence of life.
– After the minimum term expires, the offender
will be evaluated by the ISRB and every two
years thereafter if necessary.
– If the offender is released, he or she will be on
community custody status for life.
Part Five:
SSOSA
SSOSA
• The Special Sex Offender Sentencing Alternative
(SSOSA):
– A suspended sentence
– Incarceration of up to 12 months or the maximum of the
standard range, whichever is less
– Treatment of up to five years.
– Community custody
SSOSA
• Eligibility for SSOSA:
– Convicted of a sex offense other than a serious
violent sex offense or Rape 2.
– No prior felony sex offenses.
– No prior violent offenses within five years of the
current offense.
– The current offense did not cause substantial bodily
harm to the victim
– The offender has an established relationship or
connection to the victim.
– The offender’s standard sentence range includes
the possibility of incarceration for less than 11
years.
SSOSA
• Before a court can grant a SSOSA, it must
consider:
– An examination report provided by a treatment
provider
– The opinion of the victim
– Whether the offender and the community will benefit
from the SSOSA
– Whether the offender had multiple victims
– Whether the offender is amenable to treatment
– The risk the offender poses
– Whether the SSOSA is too lenient in light of the
circumstances
SSOSA
• The Legislature made changes to SSOSA
in 2004. The changes went into effect on
July 1, 2005.
• Changes included:
– Narrower eligibility
– Increased incarceration
– Increased judicial oversight
– Longer term of treatment
Part Six:
Civil Restrictions
Civil Restrictions
• Two main types of civil restrictions sex
offenders may face over and above their
sentences:
– Registration
– Civil commitment
Civil Restrictions
• Registration
– Applies to persons convicted of sex offenses and
kidnapping offenses (includes out-of-state
convictions).
– Offenders must register with the county sheriff of
the county where they reside.
– Offenders must also notify the county sheriff if they
are enrolled or employed at a institution of higher
education.
– Failure to meet the registration requirements is an
unranked class C felony.
Civil Restrictions
• Civil Commitment
– A “sexually violent predator” may be civilly
committed after the completion of his or her
criminal sentence
– Sexually violent predator = A person who has
been convicted of, found not guilty by reason
of insanity of, or found to be incompetent to
stand trail for a crime of sexual violence and
who suffers from a mental abnormality or
personality disorder that makes the person
likely to engage in predatory acts of sexual
violence if not confined to a secure facility.
Civil Restrictions
• Civil Commitment (continued)
– Sexually violent predators are committed to
the custody of the DSHS.
– Most are confined at the Special Commitment
Center on McNeil Island.
– Some have progressed in their treatment to
the point where a less restrictive alternative
has been ordered.
Questions?