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2003 Washington Legislative Round-up
In its 2003 session the Washington leg-islature enacted numerous laws affecting prisoners. Highlights of the most relevant laws are as follows:
Regional Jails
Substitute House Bill 1609 instructs the Sentencing Guidelines Commission to present a plan by Dec. 31, 2003, for creating "pilot regional correctional facilities," and establishing a "regional corrections authority."
The law does not make clear what benefits will be realized by creating these new prisons. Other than pre-trial detainees, SHB 1609 directs that the new facilities will only house prisoners serving sentences of 60 days to two years and "must accept inmates serving terms" of more than one year. Which could impact the DOC's population.
Sex Offender Website Expansion
Senate Bill 5410 amends RCW 4.24.550, relating to sex offender notification. This law, which previously only allowed Level III sex offenders to be posted on the state's web site, now allows Level II offenders as well. SB 5410 allows the same information to be posted about a Level II sex offender as is allowed for a Level III, "provided it is permissible under state and federal law."
The new law also now allows for state funds to pay for the web site where before it was to be funded by federal grants or other sources "other than state funds." Apparently such funding was not forthcoming.
Jail Booking Fees
This law amends RCW 70.48.390 to require anyone booked into a city, county, or regional jail to pay a "booking fee" of up to $100. The law allows jail staff to immediately collect the fee from any money in the possession of the person being booked. If a person has no money at the time of booking, he will be billed through the court where he or she has charges pending.
If the charges against the prisoner are dismissed or the person is acquitted, the sheriff is to refund the booking fee by mailing it to the person at his last known address. PLN has previously reported successful class action lawsuits in other states that have challenged the constitutionality and implementation of this type of jail booking fee on due process grounds.
Venue to Challenge Agency Actions
Engrossed Substitute House Bill 1530 works a change to RCW 34.05.570, relating to the jurisdictional venue for challenging a state agency's action (such as the promulgation of new rules by the Department of Corrections) under the Administrative Procedure Act. Previously, one who wished to challenge a state agency's administrative decision had to file for a declaratory judgment in Thurston County Superior Court only. Now the petitions may also be filed in Clark, Spokane, Whatcom, and Yakima counties.
Post-Conviction DNA Testing
House Bill 1391 amends RCW 10.73.170 and the procedure for post-conviction DNA testing. A prisoner who believes DNA testing may exonerate them for the crime they have been convicted of committing, and who have been denied post-conviction DNA testing may now petition the State Office of Public Defense for DNA testing. The Office of Public Defense will then forward the request to the county prosecutor's office. This provision is effective only until Jan. 1, 2005, after which all DNA issues must be raised at trial or on appeal.
This new law also contains an avenue of appeal when a county prosecutor denies a request from the Office of Public Defense for DNA tests. The appeal will go to the attorney general's office, who is then supposed to provide DNA testing if it determines that "it is likely that DNA testing would demonstrate innocence on a more probable than not basis."
Sex Offender Supervision Hearings
This law makes numerous amendments to RCW 9.95.435, .017, .055, .070, .120, .440, and 110. While most of the changes are minor, all relate to conducting hearings of sex offenders who are alleged to have violated post-release conditions. The most significant change increases from 15 to 30 the number of days in which a non-incarcerated person may be held prior to a hearing, and from five to 30 days for a prisoner in total confinement.
The parole board may also now determine whether probable cause exists to substantiate the charges, and must make such determination within 48 hours of the allegation of violation.
All other changes to the statutes are remedial and minor, such as changing "penitentiary" to "correctional institution" or changing dates.
Hepatitis Law Passed, Ignores Prisoners
This law creates new laws and amends old ones relating to the prevention and treatment of hepatitis C. But the law is especially noteworthy for what it doesn't say.
SB 5039 directs the Secretary of Health to develop a plan for the management of hepatitis C. Among the people the secretary is to consult with to develop the plan are the public, patient groups, state agencies, health departments, clinical laboratories, scientists, the University of Washington, and relevant health care associations. There is not a word contained anywhere in the bill about prisoners or their advocates.
This is troublesome due simply to the high rate of hepatitis C among those who are incarcerated versus those who aren't. As a large number of those who contracted the disease did so through drug use, and as drug offenders usually are serving sentences much shorter than other prisoners, thus released back into society more regularly, the fact that the legislature completely ignored this section of the population may not be as surprising as it is disturbing. Especially given the fact that the Washington DOC does not treat prisoners infected with hepatitis C. Most significant is the fact that HCV infection has been added to the state's anti discrimination law, thus providing a private cause of action for those who are discriminated against as a result of their HCV infection or status.
Child Support Collection from Prisoners
Finally, the legislature unanimously enacted Substitute House Bi1l 1571 which affects the collection of child support from incarcerated parents, and deductions from court awards and settlements received by prisoners.
This new law begins with a declaration by the legislature that says, in part, "A person owing a duty of child support who chooses to engage in behaviors that result in the person becoming incarcerated should not be able to avoid child support obligations."
The law then amends RCW 72.09.111 (which already mandates deductions of up to 40% of a prisoner's wages) to allow another 15% to be deducted for child support payments. This law applies to any prisoner working in a class II through class IV job.
SHB 1571 also amends RCW 72.09.480, allowing for an additional 15% of a prisoner's incoming funds to be seized for payment of child support. This is in addition to the 35% that is already deducted to pay for the cost of incarceration, crime victim's compensations, and mandatory savings account. Then there is the 20% to be deducted for Legal Financial Obligations and the 100% that can be deducted for debts owed to the DOC for medical care, postage and legal copies. Originally the legislation had mandated that child support money seized from prisoners actually go the child. Governor Locke vetoed that portion of the bill so that money seized from prisoners will actually go to the state as child support.
This legislation also substantially affects money received by prisoners as a result of a court settlement or award. Up to 55% of such money may now be confiscated by the state under the new law, purportedly to pay for cost of incarceration (20%), crime victim's fund (l0%), mandatory savings account (l0%), and legal financial obligations (20%). In addition, for those who owe lump sums of back child support, the law allows the confiscation of all money received by a prisoner from settlements or awards resulting from legal action, but does not allow the Department of Corrections to make deductions from such settlements for child support payment purposes. Readers should note that PLN editor Paul Wright previously sued the Washington DOC over legislation that allowed the seizure of funds from federal litigation. Judge Burgess of Tacoma voided the law as it applied to federal funds, including lawsuit settlements and judgments, and the state did not appeal that portion of the ruling. See: Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000). The supremacy clause should also prohibit the seizure of any federal litigation funds under this statute as well.
The law still exempts those serving a sentence of life without the possibility of parole from contributing 10% to a mandatory savings account
All of the bills in this article are available online or can be ordered, free, from the Legislative Information Center, P.O. Box 40600, Olympia, WA 98504-0600.
Regional Jails
Substitute House Bill 1609 instructs the Sentencing Guidelines Commission to present a plan by Dec. 31, 2003, for creating "pilot regional correctional facilities," and establishing a "regional corrections authority."
The law does not make clear what benefits will be realized by creating these new prisons. Other than pre-trial detainees, SHB 1609 directs that the new facilities will only house prisoners serving sentences of 60 days to two years and "must accept inmates serving terms" of more than one year. Which could impact the DOC's population.
Sex Offender Website Expansion
Senate Bill 5410 amends RCW 4.24.550, relating to sex offender notification. This law, which previously only allowed Level III sex offenders to be posted on the state's web site, now allows Level II offenders as well. SB 5410 allows the same information to be posted about a Level II sex offender as is allowed for a Level III, "provided it is permissible under state and federal law."
The new law also now allows for state funds to pay for the web site where before it was to be funded by federal grants or other sources "other than state funds." Apparently such funding was not forthcoming.
Jail Booking Fees
This law amends RCW 70.48.390 to require anyone booked into a city, county, or regional jail to pay a "booking fee" of up to $100. The law allows jail staff to immediately collect the fee from any money in the possession of the person being booked. If a person has no money at the time of booking, he will be billed through the court where he or she has charges pending.
If the charges against the prisoner are dismissed or the person is acquitted, the sheriff is to refund the booking fee by mailing it to the person at his last known address. PLN has previously reported successful class action lawsuits in other states that have challenged the constitutionality and implementation of this type of jail booking fee on due process grounds.
Venue to Challenge Agency Actions
Engrossed Substitute House Bill 1530 works a change to RCW 34.05.570, relating to the jurisdictional venue for challenging a state agency's action (such as the promulgation of new rules by the Department of Corrections) under the Administrative Procedure Act. Previously, one who wished to challenge a state agency's administrative decision had to file for a declaratory judgment in Thurston County Superior Court only. Now the petitions may also be filed in Clark, Spokane, Whatcom, and Yakima counties.
Post-Conviction DNA Testing
House Bill 1391 amends RCW 10.73.170 and the procedure for post-conviction DNA testing. A prisoner who believes DNA testing may exonerate them for the crime they have been convicted of committing, and who have been denied post-conviction DNA testing may now petition the State Office of Public Defense for DNA testing. The Office of Public Defense will then forward the request to the county prosecutor's office. This provision is effective only until Jan. 1, 2005, after which all DNA issues must be raised at trial or on appeal.
This new law also contains an avenue of appeal when a county prosecutor denies a request from the Office of Public Defense for DNA tests. The appeal will go to the attorney general's office, who is then supposed to provide DNA testing if it determines that "it is likely that DNA testing would demonstrate innocence on a more probable than not basis."
Sex Offender Supervision Hearings
This law makes numerous amendments to RCW 9.95.435, .017, .055, .070, .120, .440, and 110. While most of the changes are minor, all relate to conducting hearings of sex offenders who are alleged to have violated post-release conditions. The most significant change increases from 15 to 30 the number of days in which a non-incarcerated person may be held prior to a hearing, and from five to 30 days for a prisoner in total confinement.
The parole board may also now determine whether probable cause exists to substantiate the charges, and must make such determination within 48 hours of the allegation of violation.
All other changes to the statutes are remedial and minor, such as changing "penitentiary" to "correctional institution" or changing dates.
Hepatitis Law Passed, Ignores Prisoners
This law creates new laws and amends old ones relating to the prevention and treatment of hepatitis C. But the law is especially noteworthy for what it doesn't say.
SB 5039 directs the Secretary of Health to develop a plan for the management of hepatitis C. Among the people the secretary is to consult with to develop the plan are the public, patient groups, state agencies, health departments, clinical laboratories, scientists, the University of Washington, and relevant health care associations. There is not a word contained anywhere in the bill about prisoners or their advocates.
This is troublesome due simply to the high rate of hepatitis C among those who are incarcerated versus those who aren't. As a large number of those who contracted the disease did so through drug use, and as drug offenders usually are serving sentences much shorter than other prisoners, thus released back into society more regularly, the fact that the legislature completely ignored this section of the population may not be as surprising as it is disturbing. Especially given the fact that the Washington DOC does not treat prisoners infected with hepatitis C. Most significant is the fact that HCV infection has been added to the state's anti discrimination law, thus providing a private cause of action for those who are discriminated against as a result of their HCV infection or status.
Child Support Collection from Prisoners
Finally, the legislature unanimously enacted Substitute House Bi1l 1571 which affects the collection of child support from incarcerated parents, and deductions from court awards and settlements received by prisoners.
This new law begins with a declaration by the legislature that says, in part, "A person owing a duty of child support who chooses to engage in behaviors that result in the person becoming incarcerated should not be able to avoid child support obligations."
The law then amends RCW 72.09.111 (which already mandates deductions of up to 40% of a prisoner's wages) to allow another 15% to be deducted for child support payments. This law applies to any prisoner working in a class II through class IV job.
SHB 1571 also amends RCW 72.09.480, allowing for an additional 15% of a prisoner's incoming funds to be seized for payment of child support. This is in addition to the 35% that is already deducted to pay for the cost of incarceration, crime victim's compensations, and mandatory savings account. Then there is the 20% to be deducted for Legal Financial Obligations and the 100% that can be deducted for debts owed to the DOC for medical care, postage and legal copies. Originally the legislation had mandated that child support money seized from prisoners actually go the child. Governor Locke vetoed that portion of the bill so that money seized from prisoners will actually go to the state as child support.
This legislation also substantially affects money received by prisoners as a result of a court settlement or award. Up to 55% of such money may now be confiscated by the state under the new law, purportedly to pay for cost of incarceration (20%), crime victim's fund (l0%), mandatory savings account (l0%), and legal financial obligations (20%). In addition, for those who owe lump sums of back child support, the law allows the confiscation of all money received by a prisoner from settlements or awards resulting from legal action, but does not allow the Department of Corrections to make deductions from such settlements for child support payment purposes. Readers should note that PLN editor Paul Wright previously sued the Washington DOC over legislation that allowed the seizure of funds from federal litigation. Judge Burgess of Tacoma voided the law as it applied to federal funds, including lawsuit settlements and judgments, and the state did not appeal that portion of the ruling. See: Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000). The supremacy clause should also prohibit the seizure of any federal litigation funds under this statute as well.
The law still exempts those serving a sentence of life without the possibility of parole from contributing 10% to a mandatory savings account
All of the bills in this article are available online or can be ordered, free, from the Legislative Information Center, P.O. Box 40600, Olympia, WA 98504-0600.
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