SB 5952 — Concerning the department of corrections.

S-2888.1SUBSTITUTES-2841.2SENATE SENATE BILL 5952State of Washington65th Legislature2017 2nd Special SessionBy Senate Law & Justice (originally sponsored by Senators Padden and O'Ban)READO'BanRead FIRSTfirst TIMEtime 06/21/17.AN06/16/17. ACT Relating to addressing the department of corrections early release error;

Referred to Committee on Law & Justice.AN ACT Relating to addressing the department of corrections early release error;

and(c) A representative of the governor's office.(5) After the full membership is attained, the council shall develop a process for replacing members in case of resignation or expiration of terms.(6) Councilmembers serve a term of two years, except that the council shall create and implement a system of staggered terms, and no member other than the department staff serving as the internal ombuds may serve more than two consecutive terms.

The council must meet at least once a year.(6) Councilmembers serve a term of two years, except that the council shall create and implement a system of staggered terms, and no member other than the department staff serving as the internal ombuds may serve more than two consecutive terms.

The selected organization must have experience and the capacity to communicate effectively regarding criminal justice issues with policymakers, stakeholders, and the general public, and must be prepared and able to provide all program and staff support necessary, directly or through subcontracts, to carry out all duties of the office.(2) The organization and its subcontractors, if any, are not state agencies or departments, but instead are private, independent entities operating under contract with the state.(3) The organization must be an objective and neutral entity that will impartially investigate complaints.(4) The organization is subject to financial and other audits by the state auditor's office, and its employees must abide by the provisions of chapter 42.52 RCW.NEW SECTION.  Sec. 6.  (1) The ombuds shall:(a) Establish priorities for use of the limited resources appropriated to implement this chapter;(b) MaintainDevelop apolicies statewide toll-free telephone number, a collect telephone number, a web site, and a mailing address for theresponding receipt of complaints and inquiries;(c) Provide information, as appropriate, to inmates,records familyrequests members,from representatives of inmates, department employees, and others regarding the rightspublic. of inmates;(d) Provide technical assistance to support inmate participation in self-advocacy;(e) Monitor department compliance with applicable federal, state, and local laws, rules, regulations, and policies with a view toward the appropriate health, safety, welfare, and rehabilitation of inmates;(f) Monitor and participate in legislative and policy developments affecting correctional facilities;(g) Establish a statewide uniform reporting system to collect and analyze data related to complaints regarding the department;(h) Establish procedures to receive, investigate, and resolve complaints;(i) Submit annually to the council, the governor's office, and the legislature, by November 1st of each year, a report analyzing the work of the office, including any recommendations;

and(j)These Adoptpolicies andshall complybe withsimilar rules,in policies,scope andto proceduresthe necessaryrequirements toin implementthe thispublic chapter.(2)(a)records Theact ombudsexcept maythat initiateidentifying andinformation attemptabout tocomplainants resolveor anwitnesses investigationmust uponbe hisprotected orand hernondisclosable ownunless initiative,the complainant or uponwitness receiptwaives ofconfidentiality;(c) Maintain a complaintstatewide fromtoll-free antelephone inmate,number, a familycollect member,telephone number, a representativeweb site, and a mailing address for the receipt of ancomplaints inmate,and ainquiries;(d) Provide information, as appropriate, to inmates, family members, representatives of inmates, department employee,employees, orand others,others regarding anythe allegationrights of theinmates;(e) followingProvide thattechnical mayassistance adverselyto affectsupport inmate participation in self-advocacy;(f) Monitor department compliance with applicable federal, state, and local laws, rules, regulations, and policies with a view toward the appropriate health, safety, welfare, and rightsrehabilitation of inmates:(i)inmates;(g) AbuseMonitor orand neglect;(ii)participate Departmentin decisionslegislative orand administrativepolicy actions;(iii)developments Inactionsaffecting orcorrectional omissions;(iv)facilities;(h) Policies,Establish rules,a orstatewide procedures;uniform reporting system to collect and analyze data related to complaints regarding the department;(i) Establish procedures to receive, investigate, and resolve complaints;(j) Submit annually to the council, the governor's office, and the legislature, by November 1st of each year, a report analyzing the work of the office, including any recommendations;

or(v)and(k) AllegedAdopt violationsand ofcomply lawwith byrules, thepolicies, department.(b)and Priorprocedures necessary to filingimplement this chapter.(2)(a) The ombuds may initiate and attempt to resolve an investigation upon his or her own initiative, or upon receipt of a complaint withfrom thean ombuds,inmate, a personfamily shallmember, havea reasonablyrepresentative pursuedof resolutionan ofinmate, thea complaintdepartment throughemployee, theor internalothers, grievance,regarding:(i) administrative,Abuse or appellateneglect;(ii) proceduresDepartment withdecisions theor department.administrative actions;(iii) Inactions or omissions;(iv) Policies, rules, or procedures;

or(v) Alleged violations of law by the department that may adversely affect the health, safety, welfare, and rights of inmates.(b) Prior to filing a complaint with the ombuds, a person shall have reasonably pursued resolution of the complaint through the internal grievance, administrative, or appellate procedures with the department.

and(b) Department employees, or other persons, who might be reasonably believed to have knowledge of the incident under investigation, which includes the opportunity to interview those individuals.(3) Upon the ombuds' request, the department shall grant the ombuds the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the department that the ombuds considers necessary in an investigation of a complaint filed under this chapter, and must assist the ombuds in obtaining the necessary releases of documents that are specifically restricted or privileged for use by the ombuds.(4) Following notification from the ombuds with a written demand for access to agency records, the delegated department staff must provide the ombuds with access to the requested documentation not later than thirtytwenty business days after the ombuds' written request for the records.(5) A state or local government agency or entity that has records that are relevant to a complaint or an investigation conducted by the ombuds must provide the ombuds with access to such records.(6) The department may not hinder the lawful actions of the ombuds or employees of the office, or willfully refuse to comply with lawful demands of the office.(7) The ombuds must work with the department to minimize disruption to the operations of the department due to ombuds activities, and must comply with the department's security clearance processes, provided these processes do not impede the activities outlined in this chapter.NEW SECTION.  Sec. 8.  (1) TheCorrespondence ombudsand shallcommunication treatwith all matters under investigation, including the identitiesoffice ofis serviceconfidential recipients, complainants, and individualsmust frombe whomprotected informationas isprivileged acquired,correspondence asin confidential,the exceptsame asmanner far as disclosureslegal maycorrespondence beor necessarycommunication.(2) toThe enableoffice theshall ombudsestablish toconfidentiality performrules the duties of the office and toprocedures supportfor anyall recommendations resulting from an investigation.(2) Upon receipt of information thatmaintained by lawthe isoffice.(3) confidentialThe oroffice privileged or exempt from disclosure under chapter 42.56 RCW, the ombuds shall maintainpreserve the confidentiality of such information andobtained shallwhile notproviding furtherservices, discloseincluding orgeneral disseminateinformation, thetechnical informationassistance, exceptand asinvestigations, providedto byindividuals, applicableincluding stateinmates, orfamily federalmembers law.(3)and Investigativerepresentatives records of theinmates, officedepartment ofemployees, the ombuds are confidential and areothers. exempt from public disclosure under chapter 42.56 RCW.

RecordsConfidential providedinformation tomay andnot communicationsbe withdisclosed theunless office of the ombudsindividual relatedgives toinformed anconsent, investigationthe are also exempt from public disclosure underis chapterimpliedly 42.56authorized RCWNEWin SECTION.  Sec. 9.  (1)order Identifyingto informationcarry aboutout complainantsombuds services, or witnessesthe disclosure is notauthorized subjectby tosubsection any(4) method of legalthis compulsionsection.(4) andTo may not be revealed to the legislatureextent or the governorombuds exceptreasonably underbelieves necessary, the followingombuds:(a) circumstances:(a)Must Thereveal complainantinformation orobtained witnessin waivesthe confidentiality;(b)course Under a legislative subpoena when there is a legislative investigation for neglect of dutyproviding or misconduct by the ombuds orservices ombuds'to officeprevent whenreasonably thecertain identifyingdeath informationor issubstantial necessarybodily toharm; the investigation of the ombuds' acts;

or(c)and(b) UnderMay anreveal investigationinformation orobtained inquiryin by the governorcourse as to neglect of dutyproviding or misconduct by the ombuds orservices ombuds' office when the identifying information is necessary to theprevent investigation of the ombuds'commission acts.(2) For the purposes of thisa section,crime.(5) "identifyingIf information" includes the complainant'sombuds orreceives witness'spersonally name,identifying location,information telephoneabout number,individual likeness,corrections social security number or other identification number, or identification of immediate family members.NEW SECTION.  Sec. 10.  The privilege described in section 9 of this act does not apply when:(1) The ombuds or ombuds' staff memberduring hasthe directcourse knowledge of an allegedinvestigation crime,that and the testimony,ombuds evidence,determines oris discoveryunrelated soughtor isunnecessary relevant to thatthe allegation;(2)subject The ombuds or a member of the ombuds'investigation staff has received a threat of, or becomesrecommendation awarefor ofaction, a risk of, imminent serious harm to any person, and the testimony,ombuds evidence,will ornot discoveryfurther soughtdisclose issuch relevantinformation. to that threat or risk;

or(3)If Thethe ombuds hasdetermines beenthat askedsuch disclosure is necessary to providean generalinvestigation informationor regardingrecommendation, the generalombuds operationwill of,contact or the generalstaff processesmember employedas at,well as the ombuds'bargaining office.NEWunit SECTION.  Sec. 11.  (1)representative before any disclosure.NEW SECTION.  Sec. 9.  (1) A civil action may not be brought against any employee of the office for good faith performance of responsibilities under this chapter.(2) No discriminatory, disciplinary, or retaliatory action may be taken against a department employee, subcontractor, or volunteer, an inmate, or a family member or representative of an inmate for any communication made, or information given or disclosed, to aid the office in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith.(3) This section is not intended to infringe on the rights of an employer to supervise, discipline, or terminate an employee for other reasons.PART 2DEPARTMENT OF CORRECTIONSSec. 12.  RCWCORRECTIONSSec. 10.  RCW 72.09.010 and 1995 1st sp.s.

In return, the individual citizens and local units of government must meet their responsibilities to make the corrections system effective.(9) The system should meet those national standards which the state determines to be appropriate.NEW SECTION.  Sec. 13.  ASECTION.  Sec. 11.  A new section is added to chapter 72.09 RCW to read as follows:To ensure public safety and the administration of justice, if the department has actual knowledge or reason to believe that a computer calculation error is or has caused an error in the calculation of the release date for any prisoner, the department shall immediately manually calculate the release date of that prisoner as well as the release dates of any similarly sentenced prisoners.NEW SECTION.  Sec. 14.  ASECTION.  Sec. 12.  A new section is added to chapter 72.09 RCW to read as follows:On December 1st of each year, and in compliance with RCW 43.01.036, the department must submit a report to the governor and relevant policy and fiscal committees of the legislature that details any information technology backlog at the department along with specific requirements and plans to address such backlog.PART 3JOINT LEGISLATIVE AUDIT AND REVIEW COMMITTEENEW SECTION.  Sec. 15.  (1)SECTION.  Sec. 13.  (1) Pursuant to chapter 43.09 RCW, the joint legislative audit and review committee must conduct a performance audit of the information technology and records related units at the department of corrections, including:(a) The administrative structure of the units, including whether the units should be restructured to respond efficiently to changes in sentencing laws and other emergent issues;(b) The sufficiency of staffing levels and expertise at each of the units;

and(c) An evaluation of the advance corrections project's impact on workload and staff resources at each of the units.(2) The joint legislative audit and review committee shall report its findings to the governor and relevant policy and fiscal committees of the legislature by December 1, 2018.PART 4SENTENCING REFORMNEW SECTION.  Sec. 16.  ASECTION.  Sec. 14.  A new section is added to chapter 9.94A RCW to read as follows:In consultation with the administrative office of the courts, superior court judges' association, Washington association of prosecuting attorneys, Washington association of criminal defense lawyers, Washington public defender association, and Washington association of county clerks, the department shall develop a mandatory sentencing elements worksheet.

The Washington administrative office of the courts must include the mandatory sentencing elements worksheet in a specific section within its felony judgment and sentence forms.Sec. 17.  RCWforms.Sec. 15.  RCW 9.94A.480 and 2011 1st sp.s.

In addition, each felony judgment and sentence document must contain in a specific section the mandatory sentencing elements worksheet developed by the department of corrections in section 1614 of this act.

Both the sentencing judge and the prosecuting attorney's office shall each retain or receive a completed copy of each sentencing document as defined in this section for their own records.(2) The caseload forecast council shall be sent a completed copy of the judgment and sentence document upon conviction for each felony sentencing under subsection (1) of this section.(3) If any completed judgment and sentence document as defined in subsection (1) of this section is not sent to the caseload forecast council as required in subsection (2) of this section, the caseload forecast council shall have the authority and shall undertake reasonable and necessary steps to assure that all past, current, and future sentencing documents as defined in subsection (1) of this section are received by the caseload forecast council.Sec. 18.  RCWcouncil.Sec. 16.  RCW 9.94A.585 and 2002 c 290 s 19 are each amended to read as follows:(1) A sentence within the standard sentence range, under RCW 9.94A.510 or 9.94A.517, for an offense shall not be appealed.

The petition shall include a certification by the department that all reasonable efforts to resolve the dispute at the superior court level have been exhausted.NEW SECTION.  Sec. 19.  (1)SECTION.  Sec. 17.  (1) Subject to the availability of amounts appropriated for this specific purpose, the sentencing guidelines commission shall contract for the services of one or more external consultants to evaluate the state's sentencing laws and practices.

Recommendations from the sentencing guidelines commission shall be included in the consultant's final report.(3) The consultant shall complete its evaluation and submit a report to the commission, the joint legislative task force on criminal sentencing under section 2018 of this act, the appropriate committees of the legislature, and the governor by September 1, 2018.

The contract for services must include a requirement for three briefings before the legislature to take place during the 2018 interim and 2019 regular legislative session, including for the joint legislative task force on sentencing, the house of representatives, and the senate.(4) This section expires July 1, 2019.NEW SECTION.  Sec. 20.  (1)SECTION.  Sec. 18.  (1) A joint legislative task force to simplify criminal sentencing is established.(2) The task force is composed of members as provided in this subsection.(a) The president of the senate shall appoint one member from each of the two largest caucuses of the senate.(b) The speaker of the house of representatives shall appoint one member from each of the two largest caucuses of the house of representatives.(c) The president of the senate and the speaker of the house of representatives jointly shall appoint members representing the:(i) Washington association of sheriffs and police chiefs;(ii) Washington state patrol;(iii) Caseload forecast council;(iv) Washington association of prosecuting attorneys;(v) Washington association of criminal defense attorneys or the Washington defender association;(vi) Washington state association of counties;(vii) Office of the attorney general;(viii) American civil liberties union of Washington;(ix) Sentencing guidelines commission;(x) Department of corrections;(xi) Superior court judges' association;

and(xii) Administrative office for the courts.(3) The task force shall review sentencing laws after consideration of the study under section 1917 of this act and the consultant's recommendations.

Task force expenditures are subject to approval by the senate facilities and operations committee and the house executive rules committee, or their successor committees.(9) This section expires July 1, 2020.PART 5GENERAL PROVISIONSSec. 21.  RCWPROVISIONSSec. 19.  RCW 49.60.210 and 2011 1st sp.s.

c 42 s 25 are each amended to read as follows:(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.(2)(a) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.(b) A settlement of any cause of action brought by an employee under this subsection may not contain a provision prohibiting the employee from future work in state government unless the government agency has a significant ongoing concern for the public health, safety, or welfare as a result of the person's future employment.(3) It is an unfair practice for any employer, employment agency, labor union, government agency, government manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual has willfully disregarded the truth in providing information to the office.NEW SECTION.  Sec. 22.  InSECTION.  Sec. 20.  In the contract for the next regularly scheduled performance audit under RCW 42.40.110 following the effective date of this section, the office of financial management must require the audit to review the ability of department of corrections employees to use the state employee whistleblower program.

The audit must include findings and recommendations, including possible changes to improve the effectiveness of the whistleblower program.NEW SECTION.  Sec. 23.  SectionsSECTION.  Sec. 21.  Sections 1614, through15, 18and 16 of this act apply to sentences imposed on or after July 1, 2018.NEW SECTION.  Sec. 24.  SectionsSECTION.  Sec. 22.  Sections 2 through 119 of this act constitute a new chapter in Title 43 RCW.--- END ---