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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.
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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
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.”
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
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.
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
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.
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
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.
