wa-law.org > bill > 2023-24 > HB 2152 > Substitute Bill
As used in this chapter:
No person who is unable to proceed shall be tried, convicted, or sentenced for the commission of an offense so long as such inability continues.
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Whenever a defendant has pleaded not guilty by reason of insanity, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate a qualified expert or professional person, who shall be approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant.
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Whenever there is a doubt as to ability to proceed, the court on its own motion or on the motion of any party shall first review the allegations of inability to proceed. The court shall make a determination of whether sufficient facts have been provided to form a genuine doubt as to ability to proceed based on information provided by counsel, judicial colloquy, or direct observation of the defendant. If a genuine doubt as to ability to proceed exists, the court shall either appoint or request the secretary to designate a qualified expert or professional person, who shall be approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant.
Nothing in this subsection (1)(b) is intended to require a waiver of attorney-client privilege. Defense counsel may meet the requirements under this subsection (1)(b) by filing a declaration stating that they have reason to believe that an ability to proceed evaluation is necessary, and stating the basis on which the defendant is believed to be unable to proceed.
The signed order of the court shall serve as authority for the evaluator to be given access to all records held by any mental health, medical, long-term services or supports, educational, or correctional facility that relate to the present or past mental, emotional, or physical condition of the defendant. If the court is advised by any party that the defendant may have a developmental disability, the evaluation must be performed by a developmental disabilities professional and the evaluator shall have access to records of the developmental disabilities administration of the department. If the court is advised by any party that the defendant may have dementia or another relevant neurocognitive disorder, the evaluator shall have access to records of the aging and long-term support administration of the department.
The evaluator shall assess the defendant in a jail, detention facility, in the community, or in court to determine whether a period of inpatient commitment will be necessary to complete an accurate evaluation. If inpatient commitment is needed, the signed order of the court shall serve as authority for the evaluator to request the jail or detention facility to transport the defendant to a hospital or secure mental health facility for a period of commitment not to exceed fifteen days from the time of admission to the facility. Otherwise, the evaluator shall complete the evaluation.
The court may commit the defendant for evaluation to a hospital or secure mental health facility without an assessment if: (i) The defendant is charged with murder in the first or second degree; (ii) the court finds that it is more likely than not that an evaluation in the jail will be inadequate to complete an accurate evaluation; or (iii) the court finds that an evaluation outside the jail setting is necessary for the health, safety, or welfare of the defendant. The court shall not order an initial inpatient evaluation for any purpose other than an ability to proceed evaluation.
The order shall indicate whether, in the event the defendant is committed to a hospital or secure mental health facility for evaluation, all parties agree to waive the presence of the defendant or to the defendant's remote participation at a subsequent ability to proceed hearing or presentation of an agreed order if the recommendation of the evaluator is for continuation of the stay of criminal proceedings, or if the opinion of the evaluator is that the defendant remains unable to proceed and there is no remaining restoration period, and the hearing is held prior to the expiration of the authorized commitment period.
When a defendant is ordered to be evaluated under this subsection (1), or when a party or the court determines at first appearance that an order for evaluation under this subsection will be requested or ordered if charges are pursued, the court may delay granting bail until the defendant has been evaluated for ability to proceed or sanity and appears before the court. Following the evaluation, in determining bail the court shall consider: (i) Recommendations of the evaluator regarding the defendant's ability to proceed, sanity, or diminished capacity; (ii) whether the defendant has a recent history of one or more violent acts; (iii) whether the defendant has previously been acquitted by reason of insanity or found unable to proceed; (iv) whether it is reasonably likely the defendant will fail to appear for a future court hearing; and (v) whether the defendant is a threat to public safety.
If the defendant ordered to be evaluated under this subsection (1) is charged with a serious traffic offense under RCW 9.94A.030, or a felony version of a serious traffic offense, the prosecutor may make a motion to modify the defendant's conditions of release to include a condition prohibiting the defendant from driving during the pendency of the ability to proceed evaluation period.
The court may direct that a qualified expert or professional person retained by or appointed for the defendant be permitted to witness the evaluation authorized by subsection (1) of this section, and that the defendant shall have access to all information obtained by the court appointed experts or professional persons. The defendant's expert or professional person shall have the right to file his or her own report following the guidelines of subsection (3) of this section. If the defendant is indigent, the court shall upon the request of the defendant assist him or her in obtaining an expert or professional person.
The report of the evaluation shall include the following:
A description of the nature of the evaluation;
A diagnosis or description of the current mental status of the defendant;
If the defendant has a mental health condition, or has a developmental disability, an opinion as to ability to proceed;
If the defendant has indicated his or her intention to rely on the defense of insanity pursuant to RCW 10.77.030, and an evaluation and report by an expert or professional person has been provided concluding that the defendant was criminally insane at the time of the alleged offense, an opinion as to the defendant's sanity at the time of the act, and an opinion as to whether the defendant presents a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, provided that no opinion shall be rendered under this subsection (3)(d) unless the evaluator or court determines that the defendant is able to proceed to trial;
When directed by the court, if an evaluation and report by an expert or professional person has been provided concluding that the defendant lacked the capacity at the time of the offense to form the mental state necessary to commit the charged offense, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged;
An opinion as to whether the defendant should be evaluated by a designated crisis responder under chapter 71.05 RCW.
The secretary may execute such agreements as appropriate and necessary to implement this section and may choose to designate more than one evaluator.
In the event that a person remains in jail more than 21 days after service on the department of a court order to transport the person to a facility designated by the department for inpatient restoration treatment, upon the request of any party and with notice to all parties, the department shall perform an ability to proceed to trial status check to determine if the circumstances of the person have changed such that the court should authorize an updated ability to proceed evaluation. The status update shall be provided to the parties and the court. Status updates may be provided at reasonable intervals.
If a finding of the ability to proceed evaluation under this section or under RCW 10.77.084 is that the individual is unable to proceed due to an intellectual or developmental disability, dementia, or traumatic brain injury, the evaluator shall notify the department, which shall refer the individual to the developmental disabilities administration or the aging and long-term support administration of the department for review of eligibility for services. The department shall inform the forensic navigator about availability of services.
If the expert or professional person appointed to perform an ability to proceed evaluation in the community is not able to complete the evaluation after two attempts at scheduling with the defendant, the department shall submit a report to the court and parties and include a date and time for another evaluation which must be at least four weeks later. The court shall provide notice to the defendant of the date and time of the evaluation. If the defendant fails to appear at that appointment, the court shall recall the order for ability to proceed evaluation and may issue a warrant for the failure to appear.
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The expert conducting the evaluation shall provide his or her report and recommendation to the court in which the criminal proceeding is pending. For an ability to proceed evaluation of a defendant who is released from custody, if the evaluation cannot be completed within twenty‑one days due to a lack of cooperation by the defendant, the evaluator shall notify the court that he or she is unable to complete the evaluation because of such lack of cooperation.
A copy of the report and recommendation shall be provided to the designated crisis responder, the prosecuting attorney, the defense attorney, and the professional person at the local correctional facility where the defendant is being held, or if there is no professional person, to the person designated under (a)(iv) of this subsection. Upon request, the evaluator shall also provide copies of any source documents relevant to the evaluation to the designated crisis responder.
Any facility providing inpatient services related to ability to proceed shall discharge the defendant as soon as the facility determines that the defendant is able to proceed. Discharge shall not be postponed during the writing and distribution of the evaluation report. Distribution of an evaluation report by a facility providing inpatient services shall ordinarily be accomplished within two working days or less following the final evaluation of the defendant. If the defendant is discharged to the custody of a local correctional facility, the local correctional facility must continue the medication regimen prescribed by the facility, when clinically appropriate, unless the defendant refuses to cooperate with medication and an involuntary medication order by the court has not been entered.
If there is no professional person at the local correctional facility, the local correctional facility shall designate a professional person as defined in RCW 71.05.020 or, in cooperation with the behavioral health administrative services organization, a professional person at the behavioral health administrative services organization to receive the report and recommendation.
Upon commencement of a defendant's evaluation in the local correctional facility, the local correctional facility must notify the evaluator of the name of the professional person, or person designated under (a)(iv) of this subsection, to receive the report and recommendation.
If the evaluator concludes, under RCW 10.77.060(3)(f), the person should be evaluated by a designated crisis responder under chapter 71.05 RCW, the court shall order such evaluation be conducted prior to release from confinement when the person is acquitted or convicted and sentenced to confinement for twenty-four months or less, or when charges are dismissed pursuant to a finding of unable to proceed to trial.
The designated crisis responder shall provide written notification within twenty-four hours of the results of the determination whether to commence proceedings under chapter 71.05 RCW. The notification shall be provided to the persons identified in subsection (1)(a) of this section.
The prosecuting attorney shall provide a copy of the results of any proceedings commenced by the designated crisis responder under subsection (2) of this section to the secretary.
A facility conducting a civil commitment evaluation under RCW 10.77.086(7) or 10.77.088(6)(b) that makes a determination to release the person instead of filing a civil commitment petition must provide written notice to the prosecutor and defense attorney at least twenty-four hours prior to release. The notice may be given by email, facsimile, or other means reasonably likely to communicate the information immediately.
The fact of admission and all information and records compiled, obtained, or maintained in the course of providing services under this chapter may also be disclosed to the courts solely to prevent the entry of any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05 RCW.
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The legislature establishes a performance target of seven days or fewer to extend an offer of admission to a defendant in pretrial custody for inpatient ability to proceed evaluation or inpatient restoration services, when access to the services is legally authorized.
The legislature establishes a performance target of 14 days or fewer for the following services related to ability to proceed, when access to the services is legally authorized:
To complete an ability to proceed evaluation in jail and distribute the evaluation report; and
To extend an offer of admission to a defendant ordered to be committed to the department for placement in a facility operated by or contracted by the department following dismissal of charges based on inability to proceed to trial under RCW 10.77.086.
The legislature establishes a performance target of 21 days or fewer to complete an ability to proceed evaluation in the community and distribute the evaluation report.
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A maximum time limit of seven days as measured from the department's receipt of the court order, or a maximum time limit of 14 days as measured from signature of the court order, whichever is shorter, is established to complete the services specified in subsection (1)(a) of this section, subject to the limitations under subsection (9) of this section.
A maximum time limit of 14 days as measured from the department's receipt of the court order, or a maximum time limit of 21 days as measured from signature of the court order, whichever is shorter, is established to complete the services specified in subsection (1)(b) of this section, subject to the limitations under subsection (9) of this section.
The legislature recognizes that these targets may not be achievable in all cases, but intends for the department to manage, allocate, and request appropriations for resources in order to meet these targets whenever possible without sacrificing the accuracy and quality of ability to proceed services.
It shall be a defense to an allegation that the department has exceeded the maximum time limits for completion of ability to proceed services described in subsection (2) of this section if the department can demonstrate by a preponderance of the evidence that the reason for exceeding the maximum time limits was outside of the department's control including, but not limited to, the following circumstances:
Despite a timely request, the department has not received necessary medical information regarding the current medical status of a defendant;
The individual circumstances of the defendant make accurate completion of an evaluation of ability to proceed to trial dependent upon review of mental health, substance use disorder, or medical history information which is in the custody of a third party and cannot be immediately obtained by the department, provided that completion shall not be postponed for procurement of information which is merely supplementary;
Additional time is needed for the defendant to no longer show active signs and symptoms of impairment related to substance use so that an accurate evaluation may be completed;
The defendant is medically unavailable for ability to proceed evaluation or admission to a facility for restoration treatment;
Completion of the referral requires additional time to accommodate the availability or participation of counsel, court personnel, interpreters, or the defendant;
The defendant asserts legal rights that result in a delay in the provision of ability to proceed services; or
An unusual spike in the receipt of evaluation referrals or in the number of defendants requiring restoration services has occurred, causing temporary delays until the unexpected excess demand for ability to proceed services can be resolved.
The department shall provide written notice to the court when it will not be able to meet the maximum time limits under subsection (2) of this section and identify the reasons for the delay and provide a reasonable estimate of the time necessary to complete the ability to proceed service. Good cause for an extension for the additional time estimated by the department shall be presumed absent a written response from the court or a party received by the department within seven days.
The department shall:
Develop, document, and implement procedures to monitor the clinical status of defendants admitted to a state hospital for ability to proceed services that allow the state hospital to accomplish early discharge for defendants for whom clinical objectives have been achieved or may be achieved before expiration of the commitment period;
Investigate the extent to which patients admitted to a state hospital under this chapter overstay time periods authorized by law and take reasonable steps to limit the time of commitment to authorized periods; and
Establish written standards for the productivity of forensic evaluators and utilize these standards to internally review the performance of forensic evaluators.
Following any quarter in which a state hospital has failed to meet one or more of the performance targets or maximum time limits under subsection (1) or (2) of this section, the department shall report to the executive and the legislature the extent of this deviation and describe any corrective action being taken to improve performance. This report shall be made publicly available. An average may be used to determine timeliness under this subsection.
The department shall report annually to the legislature and the executive on the timeliness of services related to ability to proceed to trial and the timeliness with which court referrals accompanied by charging documents, discovery, and criminal history information are provided to the department relative to the signature date of the court order. The report must be in a form that is accessible to the public and that breaks down performance by county.
This section does not create any new entitlement or cause of action related to the timeliness of ability to proceed to trial services, nor can it form the basis for contempt sanctions under chapter 7.21 RCW or a motion to dismiss criminal charges.
In counties with a forensic navigator program, a forensic navigator shall:
Meet, interview, and observe all defendants charged with a nonfelony, or a class C felony other than assault in the third degree under RCW 9A.36.031(1) (d) or (f), felony physical control of a vehicle under RCW 46.61.504(6), felony hit and run resulting in injury under RCW 46.52.020(4)(b), a hate crime offense under RCW 9A.36.080, a class C felony with a domestic violence designation, a class C felony sex offense as defined in RCW 9.94A.030, or a class C felony with a sexual motivation allegation, who have had two or more cases dismissed due to a finding of inability to proceed to trial in the preceding 24 months and who are at risk for a finding of inability to proceed under their current charge. The forensic navigator shall determine the defendants' willingness to engage with services under this section; and
Provide a diversion program plan to the parties in each case that includes a recommendation for a diversion program to defense counsel and the prosecuting attorney. Services under a diversion program may include a referral for assisted outpatient treatment under chapter 71.05 RCW.
The court shall dismiss the criminal charges upon agreement of the parties that the defendant has been accepted into the diversion program recommended by the forensic navigator.
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For defendants charged with a nonfelony, the court may order the defendant to a diversion program if recommended by the forensic navigator. Upon engagement with the diversion program, the defense may move to dismiss the charges without prejudice. The court shall hold a hearing on this motion within 10 days. The court shall grant the defense motion if it finds by a preponderance of the evidence that the defendant is amenable to the services described in the diversion program and can safely receive services in the community.
For defendants charged with a class C felony other than assault in the third degree under RCW 9A.36.031(1) (d) or (f), felony physical control of a vehicle under RCW 46.61.504(6), felony hit and run resulting in injury under RCW 46.52.020(4)(b), a hate crime offense under RCW 9A.36.080, a class C felony with a domestic violence designation, a class C felony sex offense as defined in RCW 9.94A.030, or a class C felony with a sexual motivation allegation, the defense may move for dismissal of the charges without prejudice if the defendant is currently subject to a civil commitment order under chapter 71.05 RCW. The court shall grant the defense motion upon confirmation of an available treatment plan under chapter 71.05 RCW.
Individuals who are referred to a diversion program described in this section shall have a forensic navigator assigned to assist them for up to six months while engaging in the services described in the diversion program.
Forensic navigators shall collaborate with available settlement diversion programs if they are accessible in the geographic location where criminal charges are currently filed.
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If at any time during the pendency of an action and prior to judgment the court finds, following a report as provided in RCW 10.77.060, a defendant is unable to proceed, the court shall order the proceedings against the defendant be stayed except as provided in subsection (4) of this section. Beginning October 1, 2023, if the defendant is charged with a serious traffic offense under RCW 9.94A.030, or a felony version of a serious traffic offense, the court may order the clerk to transmit an order to the department of licensing for revocation of the defendant's driver's license for a period of one year.
The court may order a defendant who has been found to be unable to proceed to undergo restoration treatment at a facility designated by the department if the defendant is eligible under RCW 10.77.086 or 10.77.088. At the end of each restoration period or at any time a professional person determines ability to proceed has been, or is unlikely to be, restored, the defendant shall be returned to court for a hearing, except that if the opinion of the professional person is that the defendant remains unable to proceed and the hearing is held before the expiration of the current restoration period, the parties may agree to waive the defendant's presence, to remote participation by the defendant at a hearing, or to presentation of an agreed order in lieu of a hearing. The facility shall promptly notify the court and all parties of the date on which the restoration period commences and expires so that a timely hearing date may be scheduled.
If, following notice and hearing or entry of an agreed order under (b) of this subsection, the court finds that ability to proceed has been restored, the court shall lift the stay entered under (a) of this subsection. If the court finds that ability to proceed has not been restored, the court shall dismiss the proceedings without prejudice, except that the court may order a further period of restoration treatment if it finds that further treatment within the time limits established by RCW 10.77.086 or 10.77.088 is likely to restore ability to proceed, and a further period of treatment is allowed under RCW 10.77.086 or 10.77.088.
If at any time during the proceeding the court finds, following notice and hearing, a defendant is not likely to regain ability to proceed, the court shall dismiss the proceedings without prejudice and refer the defendant for civil commitment evaluation or proceedings if appropriate under RCW 10.77.065, 10.77.086, or 10.77.088.
Beginning October 1, 2023, if the court issues an order directing revocation of the defendant's driver's license under (a) of this subsection, and the court subsequently finds that the defendant's ability to proceed has been restored, the court shall order the clerk to transmit an order to the department of licensing for reinstatement of the defendant's driver's license. The court may direct the clerk to transmit an order reinstating the defendant's driver's license before the end of one year for good cause upon the petition of the defendant.
If the defendant is referred for evaluation by a designated crisis responder under this chapter, the designated crisis responder shall provide prompt written notification of the results of the evaluation and whether the person was detained. The notification shall be provided to the court in which the criminal action was pending, the prosecutor, the defense attorney in the criminal action, and the facility that evaluated the defendant for ability to proceed.
The fact that the defendant is unfit to proceed does not preclude any pretrial proceedings which do not require the personal participation of the defendant.
A defendant receiving medication for either physical or mental problems shall not be prohibited from standing trial, if the medication either enables the defendant to understand the proceedings against him or her and to assist in his or her own defense, or does not disable him or her from so understanding and assisting in his or her own defense.
At or before the conclusion of any commitment period provided for by this section, the facility providing evaluation and treatment shall provide to the court a written report of evaluation which meets the requirements of RCW 10.77.060(3). For defendants charged with a felony, the report following the second restoration period or first restoration period if the defendant's inability to proceed is determined to be solely due to a developmental disability or the evaluator concludes that the defendant is not likely to regain ability to proceed must include an assessment of the defendant's future dangerousness which is evidence-based regarding predictive validity.
A defendant found unable to proceed by the court under RCW 10.77.084 must be evaluated at the direction of the secretary and a determination made whether the defendant is an individual with a developmental disability. Such evaluation and determination must be accomplished as soon as possible following the court's placement of the defendant in the custody of the secretary.
When appropriate, and subject to available funds, if the defendant is determined to be an individual with a developmental disability, he or she may be placed in a program specifically reserved for the treatment and training of persons with developmental disabilities where the defendant has the right to habilitation according to an individualized service plan specifically developed for the particular needs of the defendant. A copy of the evaluation must be sent to the program.
The program must be separate from programs serving persons involved in any other treatment or habilitation program.
The program must be appropriately secure under the circumstances and must be administered by developmental disabilities professionals who shall direct the habilitation efforts.
The program must provide an environment affording security appropriate with the charged criminal behavior and necessary to protect the public safety.
The department may limit admissions of such persons to this specialized program in order to ensure that expenditures for services do not exceed amounts appropriated by the legislature and allocated by the department for such services.
The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.
(1)(a) Except as otherwise provided in this section, if the defendant is charged with a felony and determined to be incompetent unable to proceed, until he or she has regained the competency ability to proceed necessary to understand the proceedings against him or her and assist in his or her own defense, but in any event for a period of no longer than 90 days, the court shall commit the defendant to the custody of the secretary for inpatient competency restoration, or may alternatively order the defendant to receive outpatient competency restoration based on a recommendation from a forensic navigator and input from the parties.
Subject to the limitations described in subsection (2) of this section, a court may appoint an impartial forensic navigator employed by or contracted by the department to assist individuals who have been referred for ability to proceed evaluation and shall appoint a forensic navigator in circumstances described under RCW 10.77.072.
A forensic navigator must assist the individual to access services related to diversion and community outpatient restoration. The forensic navigator must assist the individual, prosecuting attorney, defense attorney, and the court to understand the options available to the individual and be accountable as an officer of the court for faithful execution of the responsibilities outlined in this section.
The duties of the forensic navigator include, but are not limited to, the following:
To collect relevant information about the individual, including behavioral health services and supports available to the individual that might support placement in outpatient restoration, diversion, or some combination of these;
To meet with, interview, and observe the individual;
To assess the individual for appropriateness for assisted outpatient treatment under chapter 71.05 RCW;
To present information to the court in order to assist the court in understanding the treatment options available to the individual to support the entry of orders for diversion from the forensic mental health system or for community outpatient restoration, to facilitate that transition;
To provide regular updates to the court and parties of the status of the individual's participation in diversion or outpatient services and be responsive to inquiries by the parties about treatment status;
When the individual is ordered to receive community outpatient restoration, to provide services to the individual including:
Assisting the individual with attending appointments and classes relating to outpatient restoration;
Coordinating access to housing for the individual;
Meeting with the individual on a regular basis;
Providing information to the court concerning the individual's progress and compliance with court-ordered conditions of release, which may include appearing at court hearings to provide information to the court;
Coordinating the individual's access to community case management services and mental health services;
Assisting the individual with obtaining prescribed medication and encouraging adherence with prescribed medication;
Assessing the individual for appropriateness for assisted outpatient treatment under chapter 71.05 RCW and coordinating the initiation of an assisted outpatient treatment order if appropriate;
Planning for a coordinated transition of the individual to a case manager in the community behavioral health system;
ix. Attempting to follow-up with the individual to check whether the meeting with a community-based case manager took place;
Forensic navigators may submit recommendations to the court regarding treatment and restoration options for the individual, which the court may consider and weigh in conjunction with the recommendations of all of the parties.
Forensic navigators shall be deemed officers of the court for the purpose of immunity from civil liability.
The signed order for ability to proceed evaluation from the court shall serve as authority for the forensic navigator to be given access to all records held by a behavioral health, educational, or law enforcement agency or a correctional facility that relates to an individual. Information that is protected by state or federal law, including health information, shall not be entered into the court record without the consent of the individual or their defense attorney.
Admissions made by the individual in the course of receiving services from the forensic navigator may not be used against the individual in the prosecution's case in chief.
A court may not issue an order appointing a forensic navigator unless the department certifies that there is adequate forensic navigator capacity to provide these services at the time the order is issued.
Within twenty-four hours of the signing of a court order requesting the secretary to provide an ability to proceed evaluation or restoration treatment:
The clerk of the court shall provide the court order and the charging documents, including the request for bail and certification of probable cause, to the state hospital. If the order is for restoration treatment and the ability to proceed evaluation was provided by a qualified expert or professional person who was not designated by the secretary, the clerk shall also provide the state hospital with a copy of all previous court orders related to ability to proceed or criminal insanity and a copy of any of the evaluation reports;
The prosecuting attorney shall provide the discovery packet, including a statement of the defendant's criminal history, to the state hospital; and
If the court order requires transportation of the defendant to a state hospital, the jail administrator shall provide the defendant's medical clearance information to the state hospital admission staff.
A city or county jail shall transport a defendant to a state hospital or other secure facility designated by the department within one day of receipt of an offer of admission of the defendant for ability to proceed evaluation or restoration services.
City and county jails must cooperate with ability to proceed evaluators and the department to arrange for ability to proceed evaluators to have reasonable, timely, and appropriate access to defendants for the purpose of performing evaluations under this chapter to accommodate the seven-day performance target for completing ability to proceed evaluations for defendants in custody.
(1) If the defendant is charged with a nonfelony crime which is a serious offense as identified in RCW 10.77.092 and found by the court to be not competent unable to proceed, the court shall first consider all available and appropriate alternatives to inpatient competency restoration. If the parties agree that there is an appropriate diversion program available to accept the defendant, the court shall dismiss the proceedings without prejudice and refer the defendant to the recommended diversion program. If the parties do not agree that there is an appropriate diversion program available to accept the defendant, then the court:
An outpatient restoration program must include access to a prescriber.
The authority shall report annually to the governor and relevant committees of the legislature, beginning November 1, 2022, and shall make the report public, describing:
How many individuals are being served by outpatient restoration programs and in what locations;
The length of stay of individuals in outpatient restoration programs;
The number of individuals who are revoked from an outpatient restoration program into inpatient treatment, and the outcomes of other individuals, if any, whose participation in an outpatient restoration program were terminated before the completion of the program; and
For individuals who were revoked from an outpatient restoration program into an inpatient restoration program, how many days the individuals spent in outpatient restoration treatment and inpatient restoration treatment, and whether the restoration programs resulted in a finding of able to proceed to trial or another outcome.
For purposes of determining whether a court may authorize involuntary medication for the purpose of restoration treatment pursuant to RCW 10.77.084 and for maintaining the level of restoration in the jail following the restoration period, a pending charge involving any one or more of the following crimes is a serious offense per se in the context of restoration treatment:
Any violent offense, sex offense, serious traffic offense, and most serious offense, as those terms are defined in RCW 9.94A.030;
Any offense, except nonfelony counterfeiting offenses, included in crimes against persons in RCW 9.94A.411;
Any offense contained in chapter 9.41 RCW (firearms and dangerous weapons);
Any offense listed as domestic violence in RCW 10.99.020;
Any offense listed as a harassment offense in chapter 9A.46 RCW, except for criminal trespass in the first or second degree;
Any violation of chapter 69.50 RCW that is a class B felony; or
Any city or county ordinance or statute that is equivalent to an offense referenced in this subsection.
Any time a petition is filed seeking a court order authorizing the involuntary medication for purposes of restoration treatment pursuant to RCW 10.77.084, the petition must also seek authorization to continue involuntary medication for purposes of maintaining the level of restoration in the jail or juvenile detention facility following the restoration period.
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In a particular case, a court may determine that a pending charge not otherwise defined as serious by state or federal law or by a city or county ordinance is, nevertheless, a serious offense within the context of restoration treatment when the conduct in the charged offense falls within the standards established in (b) of this subsection.
To determine that the particular case is a serious offense within the context of restoration treatment, the court must consider the following factors and determine that one or more of the following factors creates a situation in which the offense is serious:
The charge includes an allegation that the defendant actually inflicted bodily or emotional harm on another person or that the defendant created a reasonable apprehension of bodily or emotional harm to another;
The extent of the impact of the alleged offense on the basic human need for security of the citizens within the jurisdiction;
The number and nature of related charges pending against the defendant;
The length of potential confinement if the defendant is convicted; and
The number of potential and actual victims or persons impacted by the defendant's alleged acts.
When the court must make a determination whether to order involuntary medications for the purpose of restoration or for maintenance of ability to proceed, the court shall inquire, and shall be told, and to the extent that the prosecutor or defense attorney is aware, whether the defendant is the subject of a pending civil commitment proceeding or has been ordered into involuntary treatment pursuant to a civil commitment proceeding.
When an individual has a prescription for an antipsychotic, antidepressant, antiepileptic, or other drug prescribed to the individual to treat a serious mental illness by a state hospital or other state facility or a behavioral health agency or other certified medical provider, and the individual is medically stable on the drug, a jail or juvenile detention facility shall continue prescribing the prescribed drug and may not require the substitution of a different drug in a given therapeutic class, except under the following circumstances:
The substitution is for a generic version of a name brand drug and the generic version is chemically identical to the name brand drug; or
The drug cannot be prescribed for reasons of drug recall or removal from the market, or medical evidence indicating no therapeutic effect of the drug.
This section includes but is not limited to situations in which the individual returns to a jail or juvenile detention facility directly after undergoing treatment at a state hospital, behavioral health agency, outpatient restoration program, or prison.
The department shall establish a program to reimburse jails and juvenile detention facilities for the costs of any drugs the jail or juvenile detention facility does not otherwise have available and must continue prescribing under this section.
The legislature finds that among those persons who endanger the safety of others by committing crimes are a small number of persons with developmental disabilities. While their conduct is not typical of the vast majority of persons with developmental disabilities who are responsible citizens, for their own welfare and for the safety of others the state may need to exercise control over those few dangerous individuals who are individuals with developmental disabilities, have been charged with crimes that involve a threat to public safety or security, and have been found either unable to proceed to trial or not guilty by reason of insanity. The legislature finds, however, that the use of civil commitment procedures under chapter 71.05 RCW to effect state control over dangerous individuals with developmental disabilities has resulted in their commitment to institutions for individuals with mental illness. The legislature finds that existing programs in mental institutions may be inappropriate for persons who are individuals with developmental disabilities because the services provided in mental institutions are oriented to persons with mental illness, a condition not necessarily associated with developmental disabilities. Therefore, the legislature believes that, where appropriate, and subject to available funds, persons with developmental disabilities who have been charged with crimes that involve a threat to public safety or security and have been found unable to proceed to trial or not guilty by reason of insanity should receive state services addressing their needs, that such services must be provided in conformance with an individual habilitation plan, and that their initial treatment should be separate and discrete from treatment for persons involved in any other treatment or habilitation program in a manner consistent with the needs of public safety.
No person committed to the custody of the department for the determination of ability to proceed to trial under RCW 10.77.060, the restoration treatment under RCW 10.77.084, 10.77.086, or 10.77.088, or following an acquittal by reason of insanity shall be authorized to leave the facility where the person is confined, except in the following circumstances:
In accordance with conditional release or furlough authorized by a court;
For necessary medical or legal proceedings not available in the facility where the person is confined;
For visits to the bedside of a member of the person's immediate family who is seriously ill; or
For attendance at the funeral of a member of the person's immediate family.
Unless ordered otherwise by a court, no leave under subsection (1) of this section shall be authorized unless the person who is the subject of the authorization is escorted by a person approved by the secretary. During the authorized leave, the person approved by the secretary must be in visual or auditory contact at all times with the person on authorized leave.
Prior to the authorization of any leave under subsection (1) of this section, the secretary must give notification to any county or city law enforcement agency having jurisdiction in the location of the leave destination.
Upon application by the committed or conditionally released person, the secretary shall determine whether or not reasonable grounds exist for release. In making this determination, the secretary may consider the reports filed under RCW 10.77.060, 10.77.110, 10.77.140, and 10.77.160, and other reports and evaluations provided by professionals familiar with the case. If the secretary approves the release he or she then shall authorize the person to petition the court.
In instances in which persons have not made application for release, but the secretary believes, after consideration of the reports filed under RCW 10.77.060, 10.77.110, 10.77.140, and 10.77.160, and other reports and evaluations provided by professionals familiar with the case, that reasonable grounds exist for release, the secretary may petition the court. If the secretary petitions the court for release under this subsection, notice of the petition must be provided to the person who is the subject of the petition and to his or her attorney.
The petition shall be served upon the court and the prosecuting attorney. The court, upon receipt of the petition for release, shall within 45 days order a hearing. Continuance of the hearing date shall only be allowed for good cause shown. The prosecuting attorney shall represent the state, and shall have the right to have the person who is the subject of the petition examined by an expert or professional person of the prosecuting attorney's choice. If the secretary is the petitioner, the attorney general shall represent the secretary. If the person who is the subject of the petition is indigent, and the person so requests, the court shall assist the person in obtaining a qualified expert or professional person to examine him or her. An expert or professional person obtained by an indigent person who was committed to state psychiatric care following acquittal by reason of insanity shall be compensated out of funds of the office of public defense as provided in policies and procedures under chapter 2.70 RCW, in a manner consistent with the rules of professional conduct and the standards for indigent defense. If the person who is the subject of the petition has a developmental disability, the examination shall be performed by a developmental disabilities professional. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney. The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the person who is the subject of the petition no longer presents, as a result of a mental health condition, a substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions. If the person who is the subject of the petition will be transferred to a state correctional institution or facility upon release to serve a sentence for any class A felony, the petitioner must show that the person's mental health condition is manageable within a state correctional institution or facility, but must not be required to prove that the person does not present either a substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, if released.
For purposes of this section, a person affected by a mental health condition in a state of remission is considered to have a mental health condition requiring supervision when the condition may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others. Upon a finding that the person who is the subject of the petition has a mental health condition in a state of remission under this subsection, the court may deny release, or place or continue such a person on conditional release.
Nothing contained in this chapter shall prohibit the patient from petitioning the court for release or conditional release from the institution in which he or she is committed. The petition shall be served upon the court, the prosecuting attorney, and the secretary. Upon receipt of such petition, the secretary shall develop a recommendation as provided in subsection (1) of this section and provide the secretary's recommendation to all parties and the court. The issue to be determined on such proceeding is whether the patient, as a result of a mental health condition, is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.
Nothing contained in this chapter shall prohibit the committed person from petitioning for release by writ of habeas corpus.
Following an ability to proceed evaluation under RCW 10.77.060, individuals who are found unable to proceed and not restorable due to an intellectual or developmental disability, dementia, or traumatic brain injury, shall not be referred for restoration services.
The department shall develop a process for connecting individuals who have been found unable to proceed to trial due to an intellectual or developmental disability, dementia, or traumatic brain injury to available wraparound services and supports in community-based settings, which may include residential supports. The process shall include provisions for individuals who are current clients of the department's developmental disabilities administration or aging and long-term support administration and for individuals who are not current clients of the department.
For current clients of the developmental disabilities administration and aging and long-term support administration, the department's assigned case manager shall:
Coordinate with the individual's services providers to determine if the individual can return to the same or like services, or determine appropriate new community-based services. This shall include updating the individual's service plan and identifying and coordinating potential funding for any additional supports to stabilize the individual in community-based settings funded by the developmental disabilities administration or aging and long-term support administration so that the individual does not lose existing services, including submitting any exceptions to rule for additional services;
Conduct a current service eligibility assessment and send referral packets to all community-based service providers for services for which the individual is eligible; and
Connect with the individual's assigned forensic navigator and determine if the individual is eligible for any diversion, supportive housing, or case management programs as a class member, and assist the individual to access these services.
For individuals who have not established eligibility for the department's support services, the department shall:
Conduct an eligibility determination for services and send referral packets to service providers for all relevant community-based services for which the individual is eligible. This process must include identifying and coordinating funding for any additional supports that are needed to stabilize the individual in any community-based setting funded by the developmental disabilities administration or aging and long-term support administration, including submitting any necessary exceptions to rule for additional services; and
Connect with the individual's assigned forensic navigator and determine if the individual is eligible for any diversion, supportive housing, or case management programs as a class member, if additional specialized services are available to supplement diversion program services, and assist the individual to access these services.
The department shall offer to transition the individual in services either directly from the jail or as soon thereafter as may be practicable, without maintaining the individual at an inpatient facility for longer than is clinically necessary. Nothing in this subsection prohibits the department from returning the individual to their home or to another less restrictive setting if such setting is appropriate, which may include provision of supportive services to help the person maintain stability. The individual is not required to accept developmental disabilities administration, aging and long-term support administration, or other diversionary services as a condition of having the individual's criminal case dismissed without prejudice, provided the individual meets the criteria of subsection (1) of this section.
Subject to the availability of funds appropriated for this specific purpose, the department shall develop a program for individuals who have been involved with the criminal justice system and who have been found under RCW 10.77.084 as unable to proceed due to an intellectual or developmental disability, traumatic brain injury, or dementia and who do not meet criteria under other programs in this section. The program must involve wraparound services and housing supports appropriate to the needs of the individual. It is sufficient to meet the criteria for participation in this program if the individual has recently been the subject of criminal charges and was found unable to proceed due to an intellectual or developmental disability, traumatic brain injury, or dementia.
Within amounts appropriated, the department shall be responsible for all costs relating to the evaluation and inpatient treatment of persons committed to it pursuant to any provisions of this chapter, and the logistical and supportive services pertaining thereto except as otherwise provided by law. Reimbursement may be obtained by the department pursuant to RCW 43.20B.330.
Within amounts appropriated, the authority shall be responsible for all costs relating to outpatient restoration programs.
The office of public defense shall be responsible for costs of public defense services, including defense expert and professional services, for indigent persons acquitted by reason of insanity throughout the term of their commitment to state psychiatric care, including during any period of conditional release, until legal termination of commitment and final unconditional release.
The department shall coordinate with cities, counties, hospitals, and other public and private entities to identify locations that may be commissioned or renovated for use in treating clients committed to the department for ability to proceed evaluation, restoration, civil conversion, or treatment following acquittal by reason of insanity.
The department may provide capital grants to entities to accomplish the purposes described in subsection (1) of this section subject to provision of funding provided for this specific purpose.
The secretary shall establish an independent public safety review panel for the purpose of advising the secretary and the courts with respect to persons who have been found not guilty by reason of insanity, or persons committed under the involuntary treatment act where the court has made a special finding under RCW 71.05.280(3)(b). The panel shall provide advice regarding all recommendations to the secretary, decisions by the secretary, or actions pending in court: (a) For a change in commitment status; (b) to allow furloughs or temporary leaves accompanied by staff; (c) not to seek further commitment terms under RCW 71.05.320; or (d) to permit movement about the grounds of the treatment facility, with or without the accompaniment of staff.
The members of the public safety review panel shall be appointed by the governor for a renewable term of three years and shall include the following:
A psychiatrist;
A licensed clinical psychologist;
A representative of the department of corrections;
A prosecutor or a representative of a prosecutor's association;
A representative of law enforcement or a law enforcement association;
A consumer and family advocate representative; and
A public defender or a representative of a defender's association.
Thirty days prior to issuing a recommendation for conditional release under RCW 10.77.150 or forty-five days prior to issuing a recommendation for release under RCW 10.77.200, the secretary shall submit its recommendation with the committed person's application and the department's risk assessment to the public safety review panel. The public safety review panel shall complete an independent assessment of the public safety risk entailed by the secretary's proposed conditional release recommendation or release recommendation and provide this assessment in writing to the secretary. The public safety review panel may, within funds appropriated for this purpose, request additional evaluations of the committed person. The public safety review panel may indicate whether it is in agreement with the secretary's recommendation, or whether it would issue a different recommendation. The secretary shall provide the panel's assessment when it is received along with any supporting documentation, including all previous reports of evaluations of the committed person in the person's hospital record, to the court, prosecutor in the county that ordered the person's commitment, and counsel for the committed person.
The secretary shall notify the public safety review panel at appropriate intervals concerning any changes in the commitment or custody status of persons found not guilty by reason of insanity, or persons committed under the involuntary treatment act where the court has made a special finding under RCW 71.05.280(3)(b). The panel shall have access, upon request, to a committed person's complete hospital record, and any other records deemed necessary by the public safety review panel.
The department shall provide administrative and financial support to the public safety review panel. The department, in consultation with the public safety review panel, may adopt rules to implement this section.
By December 1, 2014, the public safety review panel shall report to the appropriate legislative committees the following:
Whether the public safety review panel has observed a change in statewide consistency of evaluations and decisions concerning changes in the commitment status of persons found not guilty by reason of insanity;
Whether the public safety review panel should be given the authority to make release decisions and monitor release conditions;
Whether further changes in the law are necessary to enhance public safety when inability to proceed prevents operation of the criminal justice system and long‑term commitment of the criminally insane; and
Any other issues the public safety review panel deems relevant.
Subject to the availability of funds appropriated for this specific purpose, the health care authority shall require the programs it contracts with to increase compensation for staff in outpatient restoration programs to provide compensation at competitive levels to improve recruitment and allow for the full implementation of outpatient restoration programs.
Subject to the security and background investigation requirements of the jail, jails shall allow clinical intervention specialists to have access to individuals who are referred to receive services under this chapter and to all records relating to the health or conduct of the individual while incarcerated. Clinical intervention specialists shall support jail health services in providing direct services, enhanced oversight and monitoring of the behavioral health status of participating individuals. Clinical intervention specialists shall work collaboratively with jail health services to ensure appropriate prescriptions, medication compliance monitoring, and access to supportive behavioral health services to the individuals. Clinical intervention specialists shall coordinate with forensic navigators and the department to assist forensic navigators in making recommendations for appropriate placements, which may include recommendations for participation in an outpatient restoration program or a diversion program designed for the needs of the individual. The clinical intervention specialist shall notify the department if a participating individual appears to have stabilized in their behavioral health such that a new ability to proceed evaluation is appropriate to reassess the individual's need for restoration treatment.
The department shall establish a memorandum of understanding and any contracts needed with the jail to address the terms and conditions of allowing access to defendants and their records subject to the requirements of this section.
The provisions of chapter 420, Laws of 1989 shall apply equally to persons in the custody of the department on May 13, 1989, who were found by a court to be not guilty by reason of insanity or unable to proceed to trial, or who have been found to have committed acts constituting a felony pursuant to RCW 71.05.280(3) and present a substantial likelihood of repeating similar acts, and the secretary shall cause such persons to be evaluated to ascertain if such persons are developmentally disabled for placement in a program specifically reserved for the treatment and training of persons with developmental disabilities.
For purposes of this chapter, the definitions of terms in this section shall apply.
In addition to the disclosure under subsection (5) of this section, public agencies are authorized to release information to the public regarding sex offenders and kidnapping offenders when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender. This authorization applies to information regarding: (a) Any person adjudicated or convicted of a sex offense as defined in RCW 9A.44.128 or a kidnapping offense as defined by RCW 9A.44.128; (b) any person under the jurisdiction of the indeterminate sentence review board as the result of a sex offense or kidnapping offense; (c) any person committed as a sexually violent predator under chapter 71.09 RCW or as a sexual psychopath under chapter 71.06 RCW; (d) any person found not guilty of a sex offense or kidnapping offense by reason of insanity under chapter 10.77 RCW; and (e) any person found unable to proceed to trial due to a mental health condition for a sex offense or kidnapping offense and subsequently committed under chapter 71.05 or 71.34 RCW.
Except for the information specifically required under subsection (5) of this section, the extent of the public disclosure of relevant and necessary information shall be rationally related to: (a) The level of risk posed by the offender to the community; (b) the locations where the offender resides, expects to reside, or is regularly found; and (c) the needs of the affected community members for information to enhance their individual and collective safety.
Except for the information specifically required under subsection (5) of this section, local law enforcement agencies shall consider the following guidelines in determining the extent of a public disclosure made under this section: (a) For offenders classified as risk level I, the agency shall share information with other appropriate law enforcement agencies and, if the offender is a student, the public or private school regulated under Title 28A RCW or chapter 72.40 RCW which the offender is attending, or planning to attend. The agency may disclose, upon request, relevant, necessary, and accurate information to any victim or witness to the offense, any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found, and any individual who requests information regarding a specific offender; (b) for offenders classified as risk level II, the agency may also disclose relevant, necessary, and accurate information to public and private schools, child day care centers, family day care providers, public libraries, businesses and organizations that serve primarily children, women, or vulnerable adults, and neighbors and community groups near the residence where the offender resides, expects to reside, or is regularly found; (c) for offenders classified as risk level III, the agency may also disclose relevant, necessary, and accurate information to the public at large; and (d) because more localized notification is not feasible and homeless and transient offenders may present unique risks to the community, the agency may also disclose relevant, necessary, and accurate information to the public at large for offenders registered as homeless or transient.
The county sheriff with whom an offender classified as risk level III is registered shall release a sex offender community notification that conforms to the guidelines established under RCW 4.24.5501.
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When funded by federal grants or other sources, the Washington association of sheriffs and police chiefs shall create and maintain a statewide registered kidnapping and sex offender website, which shall be available to the public. The website shall post all level III and level II registered sex offenders, level I registered sex offenders only during the time they are out of compliance with registration requirements under RCW 9A.44.130 or if lacking a fixed residence as provided in RCW 9A.44.130, and all registered kidnapping offenders in the state of Washington.
For level III offenders, the website shall contain, but is not limited to, the registered sex offender's name, relevant criminal convictions, address by hundred block, physical description, and photograph. The website shall provide mapping capabilities that display the sex offender's address by hundred block on a map. The website shall allow citizens to search for registered sex offenders within the state of Washington by county, city, zip code, last name, and address by hundred block.
For level II offenders, and level I sex offenders during the time they are out of compliance with registration requirements under RCW 9A.44.130, the website shall contain, but is not limited to, the same information and functionality as described in (a)(i) of this subsection, provided that it is permissible under state and federal law. If it is not permissible, the website shall be limited to the information and functionality that is permissible under state and federal law.
For kidnapping offenders, the website shall contain, but is not limited to, the same information and functionality as described in (a)(i) of this subsection, provided that it is permissible under state and federal law. If it is not permissible, the website shall be limited to the information and functionality that is permissible under state and federal law.
Law enforcement agencies must provide information requested by the Washington association of sheriffs and police chiefs to administer the statewide registered kidnapping and sex offender website.
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Within five business days of the Washington association of sheriffs and police chiefs receiving any public record request under chapter 42.56 RCW for sex offender and kidnapping offender information, records or website data it holds or maintains pursuant to this section or a unified sex offender registry, the Washington association of sheriffs and police chiefs shall refer the requester in writing to the appropriate law enforcement agency or agencies for submission of such a request. The Washington association of sheriffs and police chiefs shall have no further obligation under chapter 42.56 RCW for responding to such a request.
This subsection (5)(c) of this section is remedial and applies retroactively.
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Law enforcement agencies responsible for the registration and dissemination of information regarding offenders required to register under RCW 9A.44.130 shall assign a risk level classification to all offenders after consideration of: (i) Any available risk level classifications provided by the department of corrections, the department of social and health services, and the indeterminate sentence review board; (ii) the agency's own application of a sex offender risk assessment tool; and (iii) other information and aggravating or mitigating factors known to the agency and deemed rationally related to the risk posed by the offender to the community at large.
A sex offender shall be classified as a risk level I if his or her risk assessment and other information or factors deemed relevant by the law enforcement agency indicate he or she is at a low risk to sexually reoffend within the community at large. A sex offender shall be classified as a risk level II if his or her risk assessment and other information or factors deemed relevant by the law enforcement agency indicate he or she is at a moderate risk to sexually reoffend within the community at large. A sex offender shall be classified as a risk level III if his or her risk assessment and other information or factors deemed relevant by the law enforcement agency indicate he or she is at a high risk to sexually reoffend within the community at large.
The agency shall make a good faith effort to notify the public and residents within a reasonable period of time after the offender registers with the agency.
Agencies may develop a process to allow an offender to petition for review of the offender's assigned risk level classification. The timing, frequency, and process for review are at the sole discretion of the agency.
An appointed or elected public official, public employee, or public agency as defined in RCW 4.24.470, or units of local government and its employees, as provided in RCW 36.28A.010, are immune from civil liability for damages for any discretionary risk level classification decisions or release of relevant and necessary information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith. The immunity in this section applies to risk level classification decisions and the release of relevant and necessary information regarding any individual for whom disclosure is authorized. The decision of a law enforcement agency or official to classify an offender to a risk level other than the one assigned by the department of corrections, the department of social and health services, or the indeterminate sentence review board, or the release of any relevant and necessary information based on that different classification shall not, by itself, be considered gross negligence or bad faith. The immunity provided under this section applies to the release of relevant and necessary information to other public officials, public employees, or public agencies, and to the general public.
Except as may otherwise be provided by law, nothing in this section shall impose any liability upon a public official, public employee, or public agency for failing to release information authorized under this section.
Nothing in this section implies that information regarding persons designated in subsection (1) of this section is confidential except as may otherwise be provided by law.
When a law enforcement agency or official classifies an offender differently than the offender is classified by the end of sentence review committee at the time of the offender's release from confinement, the law enforcement agency or official shall notify the end of sentence review committee and the Washington state patrol and submit its reasons supporting the change in classification.
As used in this section, "law enforcement agency" means a general authority Washington law enforcement agency as defined in RCW 10.93.020.
For purposes of this act, a person found not guilty as a result of a defense of mental health condition shall be deemed to be a convicted person.
(1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, accesses, has in the person's custody, control, or possession, or receives any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense.
(1)(a) At the time a person is convicted or found not guilty by reason of insanity of an offense making the person ineligible to possess a firearm under state or federal law, including if the person was convicted of possession under RCW 69.50.4011, 69.50.4013, 69.50.4014, or 69.41.030, or at the time a person is committed by court order under RCW 71.05.240, 71.05.320, 71.34.740, 71.34.750, or chapter 10.77 RCW for treatment for a mental disorder, or at the time that charges are dismissed based on incompetency to stand inability to proceed to trial under RCW 10.77.088 and the court makes a finding that the person has a history of one or more violent acts, the court shall notify the person, orally and in writing, that the person must immediately surrender all firearms and any concealed pistol license and that the person may not possess a firearm unless the person's right to do so is restored by the superior court that issued the order.
The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:
Found concealed on a person not authorized by RCW 9.41.060 or 9.41.070 to carry a concealed pistol: PROVIDED, That it is an absolute defense to forfeiture if the person possessed a valid Washington concealed pistol license within the preceding two years and has not become ineligible for a concealed pistol license in the interim. Before the firearm may be returned, the person must pay the past due renewal fee and the current renewal fee;
Commercially sold to any person without an application as required by RCW 9.41.090;
In the possession of a person prohibited from possessing the firearm under RCW 9.41.040 or 9.41.045;
In the possession or under the control of a person at the time the person committed or was arrested for committing a felony or committing a nonfelony crime in which a firearm was used or displayed;
In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW;
In the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a felony or for a nonfelony crime in which a firearm was used or displayed, except that violations of Title 77 RCW shall not result in forfeiture under this section;
In the possession of a person found to have been unable to proceed due to a mental health condition while in possession of a firearm when apprehended or who is thereafter committed pursuant to chapter 10.77 RCW or committed for mental health treatment under chapter 71.05 RCW;
Used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or
Upon order of forfeiture, the court in its discretion may order destruction of any forfeited firearm. A court may temporarily retain forfeited firearms needed for evidence.
By midnight, June 30, 1993, every law enforcement agency shall prepare an inventory, under oath, of every firearm that has been judicially forfeited, has been seized and may be subject to judicial forfeiture, or that has been, or may be, forfeited due to a failure to make a claim under RCW 63.32.010 or 63.40.010.
b. Except as provided in (c) of this subsection, of the inventoried firearms a law enforcement agency shall destroy illegal firearms, may retain a maximum of ten percent of legal forfeited firearms for agency use, and shall either:
i. Comply with the provisions for the auction of firearms in this section that were in effect immediately preceding May 7, 1993; or
ii. Trade, auction, or arrange for the auction of, rifles and shotguns. In addition, the law enforcement agency shall either trade, auction, or arrange for the auction of, short firearms, or shall pay a fee of twenty-five dollars to the state treasurer for every short firearm neither auctioned nor traded, to a maximum of fifty thousand dollars. The fees shall be accompanied by an inventory, under oath, of every short firearm listed in the inventory required by (a) of this subsection, that has been neither traded nor auctioned. The state treasurer shall credit the fees to the firearms range account established in RCW 79A.25.210. All trades or auctions of firearms under this subsection shall be to licensed dealers. Proceeds of any auction less costs, including actual costs of storage and sale, shall be forwarded to the firearms range account established in RCW 79A.25.210.
c. Antique firearms and firearms recognized as curios, relics, and firearms of particular historical significance by the United States treasury department bureau of alcohol, tobacco, firearms, and explosives are exempt from destruction and shall be disposed of by auction or trade to licensed dealers.
d. Firearms in the possession of the Washington state patrol on or after May 7, 1993, that are judicially forfeited and no longer needed for evidence, or forfeited due to a failure to make a claim under RCW 63.35.020, must be disposed of as follows: (i) Firearms illegal for any person to possess must be destroyed; (ii) the Washington state patrol may retain a maximum of ten percent of legal firearms for agency use; and (iii) all other legal firearms must be auctioned or traded to licensed dealers. The Washington state patrol may retain any proceeds of an auction or trade.
The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture.
A law enforcement officer of the state or of any county or municipality may confiscate a firearm found to be in the possession of a person under circumstances specified in subsection (1) of this section. After confiscation, the firearm shall not be surrendered except: (a) To the prosecuting attorney for use in subsequent legal proceedings; (b) for disposition according to an order of a court having jurisdiction as provided in subsection (1) of this section; or (c) to the owner if the proceedings are dismissed or as directed in subsection (3) of this section.
The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense. An order requiring mental status evaluation or treatment may be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender's ability to stand trial or eligibility for a defense of insanity. The court may order additional evaluations at a later date if deemed appropriate.
Whenever a person has entered upon a term of imprisonment in a penal, correctional, or juvenile rehabilitation institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the person, he or she shall be brought to trial within 120 days after he or she shall have caused to be delivered to the prosecuting attorney and the court in which the indictment, information, or complaint is pending written notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the indictment, information, or complaint. The following time periods shall be excluded from the 120-day calculation:
Arraignment, pretrial proceedings, trial, and sentencing on an unrelated charge in a different county than the court where the charge is pending;
Proceedings related to ability to proceed to trial on the pending charge, from the entry of an evaluation order to the entry of a court order finding the person able to proceed; and
Time during which the person is detained in a federal jail or prison and subject to conditions of release not imposed by the state of Washington.
The superintendent or the superintendent's designee who provides the certificate under subsection (4) of this section shall inform any prosecuting attorney or court requesting transportation of the person to resolve an untried indictment, information, or complaint of the person's current location and availability for trial. If the person is unavailable for transportation due to court proceedings in another county, the superintendent shall inform the prosecuting attorney or court when the person becomes available for transportation and provide a new certificate containing the information under subsection (4) of this section.
For good cause shown in open court, with the person or his or her counsel having the right to be present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
The request of the person shall be accompanied by a certificate of the superintendent or the superintendent's designee having custody of the person, stating the term of commitment under which the person is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the earned release date of the person, and any decisions of the indeterminate sentence review board relating to the person.
The written notice and request for final disposition referred to in subsection (1) of this section shall be given or sent by the person to the superintendent or the superintendent's designee having custody of him or her, who shall promptly forward it together with the certificate to the appropriate prosecuting attorney and superior, district, municipal, or juvenile court by certified mail, return receipt requested.
The superintendent or the superintendent's designee having custody of the person shall promptly inform him or her in writing of the source and contents of any untried indictment, information, or complaint against him or her concerning which the superintendent or the superintendent's designee has knowledge and of his or her right to make a request for final disposition thereof.
Escape from custody by the person subsequent to his or her execution of the request for final disposition referred to in subsection (1) of this section shall void the request.
To establish the defense of insanity, it must be shown that:
At the time of the commission of the offense, as a result of a mental health condition, the mind of the actor was affected to such an extent that:
He or she was unable to perceive the nature and quality of the act with which he or she is charged; or
He or she was unable to tell right from wrong with reference to the particular act charged.
The defense of insanity must be established by a preponderance of the evidence.
Except as provided in subsection (3) of this section, the court may require a defendant to pay costs. Costs may be imposed only upon a convicted defendant, except for costs imposed upon a defendant's entry into a deferred prosecution program, costs imposed upon a defendant for pretrial supervision, or costs imposed upon a defendant for preparing and serving a warrant for failure to appear.
Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant or in administering the deferred prosecution program under chapter 10.05 RCW or pretrial supervision. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law. Expenses incurred for serving of warrants for failure to appear and jury fees under RCW 10.46.190 may be included in costs the court may require a defendant to pay. Costs for administering a deferred prosecution may not exceed $250. Costs for administering a pretrial supervision other than a pretrial electronic alcohol monitoring program, drug monitoring program, or 24/7 sobriety program may not exceed $150. Costs for preparing and serving a warrant for failure to appear may not exceed $100. Costs of incarceration imposed on a defendant convicted of a misdemeanor or a gross misdemeanor may not exceed the actual cost of incarceration. In no case may the court require the offender to pay more than $100 per day for the cost of incarceration. Payment of other court-ordered financial obligations, including all legal financial obligations and costs of supervision take precedence over the payment of the cost of incarceration ordered by the court. All funds received from defendants for the cost of incarceration in the county or city jail must be remitted for criminal justice purposes to the county or city that is responsible for the defendant's jail costs. Costs imposed constitute a judgment against a defendant and survive a dismissal of the underlying action against the defendant. However, if the defendant is acquitted on the underlying action, the costs for preparing and serving a warrant for failure to appear do not survive the acquittal, and the judgment that such costs would otherwise constitute shall be vacated.
The court shall not order a defendant to pay costs if the defendant at the time of sentencing is indigent. In determining the amount and method of payment of costs for defendants who are not indigent, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose. For the purposes of this section, a defendant is "indigent" if the defendant: (a) Meets the criteria defined in RCW 10.101.010(3) (a) through (c); (b) is homeless or mentally ill as defined in RCW 71.24.025; (c) has household income above 125 percent of the federal poverty guidelines and has recurring basic living costs, as defined in RCW 10.101.010, that render the defendant without the financial ability to pay; or (d) has other compelling circumstances that exist that demonstrate an inability to pay.
A defendant who has been ordered to pay costs and who has not willfully failed to pay the obligation, as described in RCW 9.94A.6333, 9.94B.040, and 10.01.180, may at any time petition the sentencing court for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs, modify the method of payment under RCW 10.01.170, or convert the unpaid costs to community restitution hours, if the jurisdiction operates a community restitution program, at the rate of no less than the state minimum wage established in RCW 49.46.020 for each hour of community restitution. Manifest hardship exists where the defendant is indigent as defined in subsection (3) of this section.
Except for direct costs relating to evaluating and reporting to the court, prosecutor, or defense counsel regarding a defendant's ability to proceed to trial as provided in RCW 10.77.060, this section shall not apply to costs related to medical or mental health treatment or services a defendant receives while in custody of the secretary of the department of social and health services or other governmental units. This section shall not prevent the secretary of the department of social and health services or other governmental units from imposing liability and seeking reimbursement from a defendant committed to an appropriate facility as provided in RCW 10.77.084 while criminal proceedings are stayed. This section shall also not prevent governmental units from imposing liability on defendants for costs related to providing medical or mental health treatment while the defendant is in the governmental unit's custody. Medical or mental health treatment and services a defendant receives at a state hospital or other facility are not a cost of prosecution and shall be recoverable under RCW 10.77.250 and 70.48.130, chapter 43.20B RCW, and any other applicable statute.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Accumulated contributions" means the sum of all contributions standing to the credit of a member in the member's individual account, including any amount paid under RCW 41.50.165(2), together with the regular interest thereon.
"Actuarial equivalent" means a benefit of equal value when computed upon the basis of such mortality and other tables as may be adopted by the director.
"Adjustment ratio" means the value of index A divided by index B.
"Annuity" means payments for life derived from accumulated contributions of a member. All annuities shall be paid in monthly installments.
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"Average final compensation" means the member's average compensation earnable of the highest consecutive sixty months of service credit months prior to such member's retirement, termination, or death. Periods constituting authorized leaves of absence may not be used in the calculation of average final compensation except under RCW 41.37.290.
In calculating average final compensation under (a) of this subsection, the department of retirement systems shall include:
Any compensation forgone by a member employed by a state agency or institution during the 2009-2011 fiscal biennium as a result of reduced work hours, mandatory or voluntary leave without pay, temporary reduction in pay implemented prior to December 11, 2010, or temporary layoffs if the reduced compensation is an integral part of the employer's expenditure reduction efforts, as certified by the employer;
Any compensation forgone by a member employed by the state or a local government employer during the 2011-2013 fiscal biennium as a result of reduced work hours, mandatory leave without pay, temporary layoffs, or reductions to current pay if the reduced compensation is an integral part of the employer's expenditure reduction efforts, as certified by the employer. Reductions to current pay shall not include elimination of previously agreed upon future salary increases; and
Any compensation forgone by a member during the 2019-2021 and 2021-2023 fiscal biennia as a result of reduced work hours, mandatory leave without pay, temporary layoffs, furloughs, reductions to current pay, or other similar measures resulting from the COVID-19 budgetary crisis, if the reduced compensation is an integral part of the employer's expenditure reduction efforts, as certified by the employer. Reductions to current pay shall not include elimination of previously agreed upon future salary increases.
"Beneficiary" means any person in receipt of a retirement allowance or other benefit provided by this chapter resulting from service rendered to an employer by another person.
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"Compensation earnable" for members, means salaries or wages earned by a member during a payroll period for personal services, including overtime payments, and shall include wages and salaries deferred under provisions established pursuant to sections 403(b), 414(h), and 457 of the United States internal revenue code, but shall exclude nonmoney maintenance compensation and lump sum or other payments for deferred annual sick leave, unused accumulated vacation, unused accumulated annual leave, or any form of severance pay.
"Compensation earnable" for members also includes the following actual or imputed payments, which are not paid for personal services:
Retroactive payments to an individual by an employer on reinstatement of the employee in a position, or payments by an employer to an individual in lieu of reinstatement, which are awarded or granted as the equivalent of the salary or wage which the individual would have earned during a payroll period shall be considered compensation earnable to the extent provided in this subsection, and the individual shall receive the equivalent service credit;
In any year in which a member serves in the legislature, the member shall have the option of having such member's compensation earnable be the greater of:
(A) The compensation earnable the member would have received had such member not served in the legislature; or
(B) Such member's actual compensation earnable received for nonlegislative public employment and legislative service combined. Any additional contributions to the retirement system required because compensation earnable under (b)(ii)(A) of this subsection is greater than compensation earnable under (b)(ii)(B) of this subsection shall be paid by the member for both member and employer contributions;
iii. Assault pay only as authorized by RCW 27.04.100, 72.01.045, and 72.09.240;
iv. Compensation that a member would have received but for a disability occurring in the line of duty only as authorized by RCW 41.37.060;
v. Compensation that a member receives due to participation in the leave sharing program only as authorized by RCW 41.04.650 through 41.04.670; and
vi. Compensation that a member receives for being in standby status. For the purposes of this section, a member is in standby status when not being paid for time actually worked and the employer requires the member to be prepared to report immediately for work, if the need arises, although the need may not arise.
"Department" means the department of retirement systems created in chapter 41.50 RCW.
"Director" means the director of the department.
"Eligible position" means any permanent, full-time position included in subsection (19) of this section.
"Employee" or "employed" means a person who is providing services for compensation to an employer, unless the person is free from the employer's direction and control over the performance of work. The department shall adopt rules and interpret this subsection consistent with common law.
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"Employer" means:
The Washington state department of corrections;
The Washington state parks and recreation commission;
The Washington state gambling commission;
The Washington state patrol;
The Washington state department of natural resources;
The Washington state liquor and cannabis board;
The Washington state department of veterans affairs;
The Washington state department of children, youth, and families;
ix. The Washington state department of social and health services;
Any city corrections department not covered under chapter 41.28 RCW;
Any public corrections entity created under RCW 39.34.030 by counties, cities not covered under chapter 41.28 RCW, or both; and
Any employer participating in the public employees' retirement system in chapter 41.40 RCW, some or all of whose employees' primary responsibility is to receive, process, transmit, or dispatch 911 emergency and nonemergency calls for law enforcement, fire, emergency medical, or other public safety services that is not already covered by the provisions of this subsection.
"Final compensation" means the annual rate of compensation earnable by a member at the time of termination of employment.
"Index" means, for any calendar year, that year's annual average consumer price index, Seattle, Washington area, for urban wage earners and clerical workers, all items, compiled by the bureau of labor statistics, United States department of labor.
"Index A" means the index for the year prior to the determination of a postretirement adjustment.
"Index B" means the index for the year prior to index A.
"Ineligible position" means any position which does not conform with the requirements set forth in subsection (10) of this section.
"Leave of absence" means the period of time a member is authorized by the employer to be absent from service without being separated from membership.
"Member" means any employee employed by an employer on a full-time basis:
Who is in a position that requires completion of a certified criminal justice training course and is authorized by their employer to arrest, conduct criminal investigations, enforce the criminal laws of the state of Washington, and carry a firearm as part of the job;
Whose primary responsibility is to ensure the custody and security of incarcerated or probationary individuals as a corrections officer, probation officer, or jailer;
Who is a limited authority Washington peace officer, as defined in RCW 10.93.020, for an employer;
Whose primary responsibility is to provide nursing care to, or to ensure the custody and safety of, offender, adult probationary, or patient populations; and who is in a position that requires completion of defensive tactics training or de-escalation training; and who is employed by one of the following state institutions or centers operated by the department of social and health services or the department of children, youth, and families:
Juvenile rehabilitation administration institutions, not including community facilities;
Mental health hospitals;
Child study and treatment centers; or
Institutions or residential sites that serve developmentally disabled patients or offenders, or perform restoration treatment services, except for state-operated living alternatives facilities;
Whose primary responsibility is to provide nursing care to offender and patient populations in institutions and centers operated by the following employers: A city or county corrections department as set forth in subsection (12) of this section, a public corrections entity as set forth in subsection (12) of this section, the Washington state department of corrections, or the Washington state department of veterans affairs;
Whose primary responsibility is to receive, process, transmit, or dispatch 911 emergency and nonemergency calls for law enforcement, fire, emergency medical, or other public safety services, or to supervise those employees; or
Whose primary responsibility is to supervise members eligible under this subsection.
"Membership service" means all service rendered as a member.
"Pension" means payments for life derived from contributions made by the employer. All pensions shall be paid in monthly installments.
"Plan" means the Washington public safety employees' retirement system plan 2.
"Regular interest" means such rate as the director may determine.
"Retiree" means any person who has begun accruing a retirement allowance or other benefit provided by this chapter resulting from service rendered to an employer while a member.
"Retirement" means withdrawal from active service with a retirement allowance as provided by this chapter.
"Retirement allowance" means monthly payments to a retiree or beneficiary as provided in this chapter.
"Retirement system" means the Washington public safety employees' retirement system provided for in this chapter.
"Separation from service" occurs when a person has terminated all employment with an employer.
"Service" means periods of employment by a member on or after July 1, 2006, for one or more employers for which compensation earnable is paid. Compensation earnable earned for ninety or more hours in any calendar month shall constitute one service credit month. Compensation earnable earned for at least seventy hours but less than ninety hours in any calendar month shall constitute one-half service credit month of service. Compensation earnable earned for less than seventy hours in any calendar month shall constitute one-quarter service credit month of service. Time spent in standby status, whether compensated or not, is not service.
Any fraction of a year of service shall be taken into account in the computation of such retirement allowance or benefits.
a. Service in any state elective position shall be deemed to be full-time service.
b. A member shall receive a total of not more than twelve service credit months of service for such calendar year. If an individual is employed in an eligible position by one or more employers the individual shall receive no more than one service credit month during any calendar month in which multiple service for ninety or more hours is rendered.
c. Reduction efforts such as furloughs, reduced work hours, mandatory leave without pay, temporary layoffs, or other similar situations as contemplated by subsection (5)(b)(iii) of this section do not result in a reduction in service credit that otherwise would have been earned for that month of work, and the member shall receive the full service credit for the hours that were scheduled to be worked before the reduction.
"Service credit month" means a month or an accumulation of months of service credit which is equal to one.
"Service credit year" means an accumulation of months of service credit which is equal to one when divided by twelve.
"State actuary" or "actuary" means the person appointed pursuant to RCW 44.44.010(2).
"State elective position" means any position held by any person elected or appointed to statewide office or elected or appointed as a member of the legislature.
"State treasurer" means the treasurer of the state of Washington.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
The fact of admission to a provider for mental health services and all information and records compiled, obtained, or maintained in the course of providing mental health services to either voluntary or involuntary recipients of services at public or private agencies may not be disclosed except as provided in this section, RCW 70.02.050, 71.05.445, 74.09.295, 70.02.210, 70.02.240, 70.02.250, 70.02.260, and 70.02.265, or pursuant to a valid authorization under RCW 70.02.030.
Information and records related to mental health services, other than those obtained through treatment under chapter 71.34 RCW, may be disclosed:
In communications between qualified professional persons to meet the requirements of chapter 71.05 RCW, including Indian health care providers, in the provision of services or appropriate referrals, or in the course of guardianship proceedings if provided to a professional person:
Employed by the facility;
Who has medical responsibility for the patient's care;
Who is a designated crisis responder;
Who is providing services under chapter 71.24 RCW;
Who is employed by a state or local correctional facility where the person is confined or supervised; or
When the communications regard the special needs of a patient and the necessary circumstances giving rise to such needs and the disclosure is made by a facility providing services to the operator of a facility in which the patient resides or will reside;
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When the person receiving services, or his or her guardian, designates persons to whom information or records may be released, or if the person is a minor, when his or her parents make such a designation;
A public or private agency shall release to a person's next of kin, attorney, personal representative, guardian, or conservator, if any:
(A) The information that the person is presently a patient in the facility or that the person is seriously physically ill;
(B) A statement evaluating the mental and physical condition of the patient, and a statement of the probable duration of the patient's confinement, if such information is requested by the next of kin, attorney, personal representative, guardian, or conservator; and
iii. Other information requested by the next of kin or attorney as may be necessary to decide whether or not proceedings should be instituted to appoint a guardian or conservator;
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i. To the courts, including tribal courts, as necessary to the administration of chapter 71.05 RCW or to a court ordering an evaluation or treatment under chapter 10.77 RCW solely for the purpose of preventing the entry of any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05 RCW.
ii. To a court or its designee in which a motion under chapter 10.77 RCW has been made for involuntary medication of a defendant for the purpose of restoration treatment.
iii. Disclosure under this subsection is mandatory for the purpose of the federal health insurance portability and accountability act;
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i. When a mental health professional or designated crisis responder is requested by a representative of a law enforcement or corrections agency, including a police officer, sheriff, community corrections officer, a municipal attorney, or prosecuting attorney to undertake an investigation or provide treatment under RCW 71.05.150, 10.31.110, or 71.05.153, the mental health professional or designated crisis responder shall, if requested to do so, advise the representative in writing of the results of the investigation including a statement of reasons for the decision to detain or release the person investigated. The written report must be submitted within seventy-two hours of the completion of the investigation or the request from the law enforcement or corrections representative, whichever occurs later.
ii. Disclosure under this subsection is mandatory for the purposes of the federal health insurance portability and accountability act;
f. To the attorney of the detained person;
g. To the prosecuting attorney as necessary to carry out the responsibilities of the office under RCW 71.05.330(2), 71.05.340(1)(b), and 71.05.335. The prosecutor must be provided access to records regarding the committed person's treatment and prognosis, medication, behavior problems, and other records relevant to the issue of whether treatment less restrictive than inpatient treatment is in the best interest of the committed person or others. Information must be disclosed only after giving notice to the committed person and the person's counsel;
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i. To appropriate law enforcement agencies and to a person, when the identity of the person is known to the public or private agency, whose health and safety has been threatened, or who is known to have been repeatedly harassed, by the patient. The person may designate a representative to receive the disclosure. The disclosure must be made by the professional person in charge of the public or private agency or his or her designee and must include the dates of commitment, admission, discharge, or release, authorized or unauthorized absence from the agency's facility, and only any other information that is pertinent to the threat or harassment. The agency or its employees are not civilly liable for the decision to disclose or not, so long as the decision was reached in good faith and without gross negligence.
ii. Disclosure under this subsection is mandatory for the purposes of the federal health insurance portability and accountability act;
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i. To appropriate corrections and law enforcement agencies all necessary and relevant information in the event of a crisis or emergent situation that poses a significant and imminent risk to the public. The mental health service agency or its employees are not civilly liable for the decision to disclose or not so long as the decision was reached in good faith and without gross negligence.
ii. Disclosure under this subsection is mandatory for the purposes of the health insurance portability and accountability act;
j. To the persons designated in RCW 71.05.425 for the purposes described in those sections;
k. By a care coordinator under RCW 71.05.585 or 10.77.175 assigned to a person ordered to receive less restrictive alternative treatment for the purpose of sharing information to parties necessary for the implementation of proceedings under chapter 71.05 or 10.77 RCW;
l. Upon the death of a person. The person's next of kin, personal representative, guardian, or conservator, if any, must be notified. Next of kin who are of legal age and competent must be notified under this section in the following order: Spouse, parents, children, brothers and sisters, and other relatives according to the degree of relation. Access to all records and information compiled, obtained, or maintained in the course of providing services to a deceased patient are governed by RCW 70.02.140;
m. To mark headstones or otherwise memorialize patients interred at state hospital cemeteries. The department of social and health services shall make available the name, date of birth, and date of death of patients buried in state hospital cemeteries fifty years after the death of a patient;
n. To law enforcement officers and to prosecuting attorneys as are necessary to enforce RCW 9.41.040(2)(a)(iii). The extent of information that may be released is limited as follows:
i. Only the fact, place, and date of involuntary commitment, an official copy of any order or orders of commitment, and an official copy of any written or oral notice of ineligibility to possess a firearm that was provided to the person pursuant to RCW 9.41.047(1), must be disclosed upon request;
ii. The law enforcement and prosecuting attorneys may only release the information obtained to the person's attorney as required by court rule and to a jury or judge, if a jury is waived, that presides over any trial at which the person is charged with violating RCW 9.41.040(2)(a)(iii);
iii. Disclosure under this subsection is mandatory for the purposes of the federal health insurance portability and accountability act;
o. When a patient would otherwise be subject to the provisions of this section and disclosure is necessary for the protection of the patient or others due to his or her unauthorized disappearance from the facility, and his or her whereabouts is unknown, notice of the disappearance, along with relevant information, may be made to relatives, the department of corrections when the person is under the supervision of the department, and governmental law enforcement agencies designated by the physician or psychiatric advanced registered nurse practitioner in charge of the patient or the professional person in charge of the facility, or his or her professional designee;
p. Pursuant to lawful order of a court, including a tribal court;
q. To qualified staff members of the department, to the authority, to behavioral health administrative services organizations, to managed care organizations, to resource management services responsible for serving a patient, or to service providers designated by resource management services as necessary to determine the progress and adequacy of treatment and to determine whether the person should be transferred to a less restrictive or more appropriate treatment modality or facility;
r. Within the mental health service agency or Indian health care provider facility where the patient is receiving treatment, confidential information may be disclosed to persons employed, serving in bona fide training programs, or participating in supervised volunteer programs, at the facility when it is necessary to perform their duties;
s. Within the department and the authority as necessary to coordinate treatment for mental illness, developmental disabilities, or substance use disorder of persons who are under the supervision of the department;
t. Between the department of social and health services, the department of children, youth, and families, and the health care authority as necessary to coordinate treatment for mental illness, developmental disabilities, or substance use disorder of persons who are under the supervision of the department of social and health services or the department of children, youth, and families;
u. To a licensed physician or psychiatric advanced registered nurse practitioner who has determined that the life or health of the person is in danger and that treatment without the information and records related to mental health services could be injurious to the patient's health. Disclosure must be limited to the portions of the records necessary to meet the medical emergency;
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i. Consistent with the requirements of the federal health insurance portability and accountability act, to:
(A) A health care provider, including an Indian health care provider, who is providing care to a patient, or to whom a patient has been referred for evaluation or treatment; or
(B) Any other person who is working in a care coordinator role for a health care facility, health care provider, or Indian health care provider, or is under an agreement pursuant to the federal health insurance portability and accountability act with a health care facility or a health care provider and requires the information and records to assure coordinated care and treatment of that patient.
ii. A person authorized to use or disclose information and records related to mental health services under this subsection (2)(v) must take appropriate steps to protect the information and records relating to mental health services.
iii. Psychotherapy notes may not be released without authorization of the patient who is the subject of the request for release of information;
w. To administrative and office support staff designated to obtain medical records for those licensed professionals listed in (v) of this subsection;
x. To a facility that is to receive a person who is involuntarily committed under chapter 71.05 RCW, or upon transfer of the person from one evaluation and treatment facility to another. The release of records under this subsection is limited to the information and records related to mental health services required by law, a record or summary of all somatic treatments, and a discharge summary. The discharge summary may include a statement of the patient's problem, the treatment goals, the type of treatment which has been provided, and recommendation for future treatment, but may not include the patient's complete treatment record;
y. To the person's counsel or guardian ad litem, without modification, at any time in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission, commitment, or patient's rights under chapter 71.05 RCW;
z. To staff members of the protection and advocacy agency or to staff members of a private, nonprofit corporation for the purpose of protecting and advocating the rights of persons with mental disorders or developmental disabilities. Resource management services may limit the release of information to the name, birthdate, and county of residence of the patient, information regarding whether the patient was voluntarily admitted, or involuntarily committed, the date and place of admission, placement, or commitment, the name and address of a guardian of the patient, and the date and place of the guardian's appointment. Any staff member who wishes to obtain additional information must notify the patient's resource management services in writing of the request and of the resource management services' right to object. The staff member shall send the notice by mail to the guardian's address. If the guardian does not object in writing within fifteen days after the notice is mailed, the staff member may obtain the additional information. If the guardian objects in writing within fifteen days after the notice is mailed, the staff member may not obtain the additional information;
aa. To all current treating providers, including Indian health care providers, of the patient with prescriptive authority who have written a prescription for the patient within the last twelve months. For purposes of coordinating health care, the department or the authority may release without written authorization of the patient, information acquired for billing and collection purposes as described in RCW 70.02.050(1)(d). The department, or the authority, if applicable, shall notify the patient that billing and collection information has been released to named providers, and provide the substance of the information released and the dates of such release. Neither the department nor the authority may release counseling, inpatient psychiatric hospitalization, or drug and alcohol treatment information without a signed written release from the client;
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i. To the secretary of social and health services and the director of the health care authority for either program evaluation or research, or both so long as the secretary or director, where applicable, adopts rules for the conduct of the evaluation or research, or both. Such rules must include, but need not be limited to, the requirement that all evaluators and researchers sign an oath of confidentiality substantially as follows:
"As a condition of conducting evaluation or research concerning persons who have received services from (fill in the facility, agency, or person) I, . . . . . ., agree not to divulge, publish, or otherwise make known to unauthorized persons or the public any information obtained in the course of such evaluation or research regarding persons who have received services such that the person who received such services is identifiable.
I recognize that unauthorized release of confidential information may subject me to civil liability under the provisions of state law.
/s/ . . . . . ."
ii. Nothing in this chapter may be construed to prohibit the compilation and publication of statistical data for use by government or researchers under standards, including standards to assure maintenance of confidentiality, set forth by the secretary, or director, where applicable;
cc. To any person if the conditions in RCW 70.02.205 are met;
dd. To the secretary of health for the purposes of the maternal mortality review panel established in RCW 70.54.450; or
ee. To a tribe or Indian health care provider to carry out the requirements of RCW 71.05.150(6).
Whenever federal law or federal regulations restrict the release of information contained in the information and records related to mental health services of any patient who receives treatment for a substance use disorder, the department or the authority may restrict the release of the information as necessary to comply with federal law and regulations.
Civil liability and immunity for the release of information about a particular person who is committed to the department of social and health services or the authority under RCW 71.05.280(3) and 71.05.320(4)(c) after dismissal of a sex offense as defined in RCW 9.94A.030, is governed by RCW 4.24.550.
The fact of admission to a provider of mental health services, as well as all records, files, evidence, findings, or orders made, prepared, collected, or maintained pursuant to chapter 71.05 RCW are not admissible as evidence in any legal proceeding outside that chapter without the written authorization of the person who was the subject of the proceeding except as provided in RCW 70.02.260, in a subsequent criminal prosecution of a person committed pursuant to RCW 71.05.280(3) or 71.05.320(4)(c) on charges that were dismissed pursuant to chapter 10.77 RCW due to inability to proceed, in a civil commitment proceeding pursuant to chapter 71.09 RCW, or, in the case of a minor, a guardianship or dependency proceeding. The records and files maintained in any court proceeding pursuant to chapter 71.05 RCW must be confidential and available subsequent to such proceedings only to the person who was the subject of the proceeding or his or her attorney. In addition, the court may order the subsequent release or use of such records or files only upon good cause shown if the court finds that appropriate safeguards for strict confidentiality are and will be maintained.
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Except as provided in RCW 4.24.550, any person may bring an action against an individual who has willfully released confidential information or records concerning him or her in violation of the provisions of this section, for the greater of the following amounts:
One thousand dollars; or
Three times the amount of actual damages sustained, if any.
It is not a prerequisite to recovery under this subsection that the plaintiff suffered or was threatened with special, as contrasted with general, damages.
Any person may bring an action to enjoin the release of confidential information or records concerning him or her or his or her ward, in violation of the provisions of this section, and may in the same action seek damages as provided in this subsection.
The court may award to the plaintiff, should he or she prevail in any action authorized by this subsection, reasonable attorney fees in addition to those otherwise provided by law.
If an action is brought under this subsection, no action may be brought under RCW 70.02.170.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
Whenever a designated crisis responder or professional person is conducting an evaluation under this chapter, consideration shall include all reasonably available information from credible witnesses and records regarding:
Prior recommendations for evaluation of the need for civil commitments when the recommendation is made pursuant to an evaluation conducted under chapter 10.77 RCW;
Historical behavior, including history of one or more violent acts;
Prior determinations of inability to proceed or insanity under chapter 10.77 RCW; and
Prior commitments under this chapter.
Credible witnesses may include family members, landlords, neighbors, or others with significant contact and history of involvement with the person. If the designated crisis responder relies upon information from a credible witness in reaching his or her decision to detain the individual, then he or she must provide contact information for any such witness to the prosecutor. The designated crisis responder or prosecutor shall provide notice of the date, time, and location of the probable cause hearing to such a witness.
Symptoms and behavior of the respondent which standing alone would not justify civil commitment may support a finding of grave disability or likelihood of serious harm, or a finding that the person is in need of assisted outpatient treatment, when:
Such symptoms or behavior are closely associated with symptoms or behavior which preceded and led to a past incident of involuntary hospitalization, severe deterioration, or one or more violent acts;
These symptoms or behavior represent a marked and concerning change in the baseline behavior of the respondent; and
Without treatment, the continued deterioration of the respondent is probable.
When conducting an evaluation for offenders identified under RCW 72.09.370, the designated crisis responder or professional person shall consider an offender's history of judicially required or administratively ordered antipsychotic medication while in confinement.
Whenever a designated crisis responder or professional person is conducting an evaluation under this chapter, consideration shall include all reasonably available information from credible witnesses and records regarding:
Prior recommendations for evaluation of the need for civil commitments when the recommendation is made pursuant to an evaluation conducted under chapter 10.77 RCW;
Historical behavior, including history of one or more violent acts;
Prior determinations of inability to proceed or insanity under chapter 10.77 RCW; and
Prior commitments under this chapter.
Credible witnesses may include family members, landlords, neighbors, or others with significant contact and history of involvement with the person. If the designated crisis responder relies upon information from a credible witness in reaching his or her decision to detain the individual, then he or she must provide contact information for any such witness to the prosecutor. The designated crisis responder or prosecutor shall provide notice of the date, time, and location of the probable cause hearing to such a witness.
Symptoms and behavior of the respondent which standing alone would not justify civil commitment may support a finding of grave disability or likelihood of serious harm, or a finding that the person is in need of assisted outpatient treatment, when:
Such symptoms or behavior are closely associated with symptoms or behavior which preceded and led to a past incident of involuntary hospitalization, severe deterioration from safe behavior, or one or more violent acts;
These symptoms or behavior represent a marked and concerning change in the baseline behavior of the respondent; and
Without treatment, the continued deterioration of the respondent is probable.
When conducting an evaluation for offenders identified under RCW 72.09.370, the designated crisis responder or professional person shall consider an offender's history of judicially required or administratively ordered antipsychotic medication while in confinement.
Insofar as danger to the individual or others is not created, each person involuntarily detained, treated in a less restrictive alternative course of treatment, or committed for treatment and evaluation pursuant to this chapter shall have, in addition to other rights not specifically withheld by law, the following rights, a list of which shall be prominently posted in all facilities, institutions, and hospitals providing such services:
To wear his or her own clothes and to keep and use his or her own personal possessions, except when deprivation of same is essential to protect the safety of the resident or other persons;
To keep and be allowed to spend a reasonable sum of his or her own money for canteen expenses and small purchases;
To have access to individual storage space for his or her private use;
To have visitors at reasonable times;
To have reasonable access to a telephone, both to make and receive confidential calls;
To have ready access to letter writing materials, including stamps, and to send and receive uncensored correspondence through the mails;
To have the right to individualized care and adequate treatment;
To discuss treatment plans and decisions with professional persons;
Not to consent to the administration of antipsychotic medications beyond the hearing conducted pursuant to RCW 71.05.320(4) or the performance of electroconvulsant therapy or surgery, except emergency lifesaving surgery, unless ordered by a court of competent jurisdiction pursuant to the following standards and procedures:
The administration of antipsychotic medication or electroconvulsant therapy shall not be ordered unless the petitioning party proves by clear, cogent, and convincing evidence that there exists a compelling state interest that justifies overriding the patient's lack of consent to the administration of antipsychotic medications or electroconvulsant therapy, that the proposed treatment is necessary and effective, and that medically acceptable alternative forms of treatment are not available, have not been successful, or are not likely to be effective.
The court shall make specific findings of fact concerning: (A) The existence of one or more compelling state interests; (B) the necessity and effectiveness of the treatment; and (C) the person's desires regarding the proposed treatment. If the patient is unable to make a rational and informed decision about consenting to or refusing the proposed treatment, the court shall make a substituted judgment for the patient as if he or she were competent to make such a determination.
The person shall be present at any hearing on a request to administer antipsychotic medication or electroconvulsant therapy filed pursuant to this subsection. The person has the right: (A) To be represented by an attorney; (B) to present evidence; (C) to cross-examine witnesses; (D) to have the rules of evidence enforced; (E) to remain silent; (F) to view and copy all petitions and reports in the court file; and (G) to be given reasonable notice and an opportunity to prepare for the hearing. The court may appoint a psychiatrist, physician assistant working with a supervising psychiatrist, psychiatric advanced registered nurse practitioner, psychologist within their scope of practice, physician assistant, or physician to examine and testify on behalf of such person. The court shall appoint a psychiatrist, physician assistant working with a supervising psychiatrist, psychiatric advanced registered nurse practitioner, psychologist within their scope of practice, physician assistant, or physician designated by such person or the person's counsel to testify on behalf of the person in cases where an order for electroconvulsant therapy is sought.
An order for the administration of antipsychotic medications entered following a hearing conducted pursuant to this section shall be effective for the period of the current involuntary treatment order, and any interim period during which the person is awaiting trial or hearing on a new petition for involuntary treatment or involuntary medication.
Any person detained pursuant to RCW 71.05.320(4), who subsequently refuses antipsychotic medication, shall be entitled to the procedures set forth in this subsection.
(A) A person presents an imminent likelihood of serious harm;
(B) Medically acceptable alternatives to administration of antipsychotic medications are not available, have not been successful, or are not likely to be effective; and
(C) In the opinion of the physician, physician assistant, or psychiatric advanced registered nurse practitioner with responsibility for treatment of the person, or his or her designee, the person's condition constitutes an emergency requiring the treatment be instituted before a judicial hearing as authorized pursuant to this section can be held.
If antipsychotic medications are administered over a person's lack of consent pursuant to this subsection, a petition for an order authorizing the administration of antipsychotic medications shall be filed on the next judicial day. The hearing shall be held within two judicial days. If deemed necessary by the physician, physician assistant, or psychiatric advanced registered nurse practitioner with responsibility for the treatment of the person, administration of antipsychotic medications may continue until the hearing is held;
k. To dispose of property and sign contracts unless such person has been adjudicated unable to proceed in a court proceeding directed to that particular issue;
l. Not to have psychosurgery performed on him or her under any circumstances.
Every person involuntarily detained or committed under the provisions of this chapter is entitled to all the rights set forth in this chapter and retains all rights not denied him or her under this chapter except as limited by chapter 9.41 RCW.
No person may be presumed unable to proceed as a consequence of receiving evaluation or treatment for a behavioral health disorder. Ability to proceed may not be determined or withdrawn except under the provisions of chapter 10.77 or 11.88 RCW.
Subject to RCW 71.05.745 and related regulations, persons receiving evaluation or treatment under this chapter must be given a reasonable choice of an available physician, physician assistant, psychiatric advanced registered nurse practitioner, or other professional person qualified to provide such services.
Whenever any person is detained under this chapter, the person must be advised that unless the person is released or voluntarily admits himself or herself for treatment within one hundred twenty hours of the initial detention, a judicial hearing must be held in a superior court within one hundred twenty hours to determine whether there is probable cause to detain the person for up to an additional fourteen days based on an allegation that because of a behavioral health disorder the person presents a likelihood of serious harm or is gravely disabled, and that at the probable cause hearing the person has the following rights:
To communicate immediately with an attorney; to have an attorney appointed if the person is indigent; and to be told the name and address of the attorney that has been designated;
To remain silent, and to know that any statement the person makes may be used against him or her;
To present evidence on the person's behalf;
To cross-examine witnesses who testify against him or her;
To be proceeded against by the rules of evidence;
To have the court appoint a reasonably available independent professional person to examine the person and testify in the hearing, at public expense unless the person is able to bear the cost;
To view and copy all petitions and reports in the court file; and
To refuse psychiatric medications, including antipsychotic medication beginning twenty-four hours prior to the probable cause hearing.
The judicial hearing described in subsection (5) of this section must be held according to the provisions of subsection (5) of this section and rules promulgated by the supreme court.
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Privileges between patients and physicians, physician assistants, psychologists, or psychiatric advanced registered nurse practitioners are deemed waived in proceedings under this chapter relating to the administration of antipsychotic medications. As to other proceedings under this chapter, the privileges are waived when a court of competent jurisdiction in its discretion determines that such waiver is necessary to protect either the detained person or the public.
The waiver of a privilege under this section is limited to records or testimony relevant to evaluation of the detained person for purposes of a proceeding under this chapter. Upon motion by the detained person or on its own motion, the court shall examine a record or testimony sought by a petitioner to determine whether it is within the scope of the waiver.
The record maker may not be required to testify in order to introduce medical or psychological records of the detained person so long as the requirements of RCW 5.45.020 are met except that portions of the record which contain opinions as to the detained person's mental state must be deleted from such records unless the person making such conclusions is available for cross-examination.
Nothing contained in this chapter prohibits the patient from petitioning by writ of habeas corpus for release.
Nothing in this section permits any person to knowingly violate a no-contact order or a condition of an active judgment and sentence or an active condition of supervision by the department of corrections.
The rights set forth under this section apply equally to ninety-day or one hundred eighty-day hearings under RCW 71.05.310.
At the expiration of the fourteen-day period of intensive treatment, a person may be committed for further treatment pursuant to RCW 71.05.320 if:
Such person after having been taken into custody for evaluation and treatment has threatened, attempted, or inflicted: (a) Physical harm upon the person of another or himself or herself, or substantial damage upon the property of another, and (b) as a result of a behavioral health disorder presents a likelihood of serious harm; or
Such person was taken into custody as a result of conduct in which he or she attempted or inflicted physical harm upon the person of another or himself or herself, or substantial damage upon the property of others, and continues to present, as a result of a behavioral health disorder, a likelihood of serious harm; or
Such person has been determined to be unable to proceed and criminal charges have been dismissed pursuant to RCW 10.77.086(7), and has committed acts constituting a felony, and as a result of a behavioral health disorder, presents a substantial likelihood of repeating similar acts.
In any proceeding pursuant to this subsection it shall not be necessary to show intent, willfulness, or state of mind as an element of the crime;
For any person subject to commitment under this subsection where the charge underlying the finding of inability to proceed is for a felony classified as violent under RCW 9.94A.030, the court shall determine whether the acts the person committed constitute a violent offense under RCW 9.94A.030; or
Such person is gravely disabled.
At any time during a person's 14-day intensive treatment period, the professional person in charge of a treatment facility or his or her professional designee or the designated crisis responder may petition the superior court for an order requiring such person to undergo an additional period of treatment. Such petition must be based on one or more of the grounds set forth in RCW 71.05.280.
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(A) One physician, physician assistant, or psychiatric advanced registered nurse practitioner; and
(B) One physician, physician assistant, psychiatric advanced registered nurse practitioner, or mental health professional.
ii. If the petition is for substance use disorder treatment, the petition may be signed by a substance use disorder professional instead of a mental health professional and by an advanced registered nurse practitioner instead of a psychiatric advanced registered nurse practitioner.
b. The affidavits shall describe in detail the behavior of the detained person which supports the petition and shall explain what, if any, less restrictive treatments which are alternatives to detention are available to such person, and shall state the willingness of the affiant to testify to such facts in subsequent judicial proceedings under this chapter. If less restrictive alternative treatment is sought, the petition shall set forth any recommendations for less restrictive alternative treatment services.
The petition for ninety day treatment shall be filed with the clerk of the superior court at least three days before expiration of the fourteen-day period of intensive treatment. The clerk shall set a trial setting date as provided in RCW 71.05.310 on the next judicial day after the date of filing the petition and notify the designated crisis responder. The designated crisis responder shall immediately notify the person detained, his or her attorney, if any, and his or her guardian or conservator, if any, the prosecuting attorney, and the behavioral health administrative services organization administrator, and provide a copy of the petition to such persons as soon as possible. The behavioral health administrative services organization administrator or designee may review the petition and may appear and testify at the full hearing on the petition.
The attorney for the detained person shall advise him or her of his or her right to be represented by an attorney, his or her right to a jury trial, and, if the petition is for commitment for mental health treatment, his or her loss of firearm rights if involuntarily committed. If the detained person is not represented by an attorney, or is indigent or is unwilling to retain an attorney, the court shall immediately appoint an attorney to represent him or her. The court shall, if requested, appoint a reasonably available licensed physician, physician assistant, psychiatric advanced registered nurse practitioner, psychologist, psychiatrist, or other professional person, designated by the detained person to examine and testify on behalf of the detained person.
The court may, if requested, also appoint a professional person as defined in RCW 71.05.020 to seek less restrictive alternative courses of treatment and to testify on behalf of the detained person. In the case of a person with a developmental disability who has been determined to be unable to proceed pursuant to RCW 10.77.086(7), the appointed professional person under this section shall be a developmental disabilities professional.
The provisions of chapter 420, Laws of 1989 shall apply equally to persons in the custody of the department of social and health services on May 13, 1989, who were found by a court to be not guilty by reason of insanity or unable to proceed to trial due to a mental health condition, or who have been found to have committed acts constituting a felony pursuant to RCW 71.05.280(3) and present a substantial likelihood of repeating similar acts, and the secretary of the department of social and health services shall cause such persons to be evaluated to ascertain if such persons have a developmental disability for placement in a program specifically reserved for the treatment and training of persons with developmental disabilities.
The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disorder that renders them appropriate for the existing involuntary treatment act, chapter 71.05 RCW, which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under chapter 71.05 RCW, sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior. The legislature further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment act, chapter 71.05 RCW, is inadequate to address the risk to reoffend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement. The legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.
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When it appears that a person may meet the criteria of a sexually violent predator as defined in RCW 71.09.020, the agency with jurisdiction shall refer the person in writing to the prosecuting attorney of the county in which an action under this chapter may be filed pursuant to RCW 71.09.030 and the attorney general, three months prior to:
The anticipated release from total confinement of a person who has been convicted of a sexually violent offense;
The anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile;
Release of a person who has been charged with a sexually violent offense and who has been determined to be unable to proceed pursuant to RCW 10.77.086(7); or
Release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to RCW 10.77.020(3).
The agency shall provide the prosecuting agency with all relevant information including but not limited to the following information:
A complete copy of the institutional records compiled by the department of corrections relating to the person, and any such out-of-state department of corrections' records, if available;
A complete copy, if applicable, of any file compiled by the indeterminate sentence review board relating to the person;
All records relating to the psychological or psychiatric evaluation and/or treatment of the person;
A current record of all prior arrests and convictions, and full police case reports relating to those arrests and convictions; and
A current mental health evaluation or mental health records review.
The prosecuting agency has the authority, consistent with RCW 72.09.345(4), to obtain all records relating to the person if the prosecuting agency deems such records are necessary to fulfill its duties under this chapter. The prosecuting agency may only disclose such records in the course of performing its duties pursuant to this chapter, unless otherwise authorized by law.
The prosecuting agency has the authority to utilize the inquiry judge procedures of chapter 10.27 RCW prior to the filing of any action under this chapter to seek the issuance of compulsory process for the production of any records necessary for a determination of whether to seek the civil commitment of a person under this chapter. Any records obtained pursuant to this process may only be disclosed by the prosecuting agency in the course of performing its duties pursuant to this chapter, or unless otherwise authorized by law.
The agency, its employees, and officials shall be immune from liability for any good-faith conduct under this section.
As used in this section, "agency with jurisdiction" means that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the department of corrections, the indeterminate sentence review board, and the department of social and health services.
A petition may be filed alleging that a person is a sexually violent predator and stating sufficient facts to support such allegation when it appears that: (a) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement; (b) a person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement; (c) a person who has been charged with a sexually violent offense and who has been determined to be unable to proceed to trial is about to be released, or has been released, pursuant to RCW 10.77.086(7); (d) a person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, or has been released, pursuant to RCW 10.77.020, 10.77.110 (1) or (3), or 10.77.150; or (e) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act.
The petition may be filed by:
The prosecuting attorney of a county in which:
The person has been charged or convicted with a sexually violent offense;
A recent overt act occurred involving a person covered under subsection (1)(e) of this section; or
The person committed a recent overt act, or was charged or convicted of a criminal offense that would qualify as a recent overt act, if the only sexually violent offense charge or conviction occurred in a jurisdiction other than Washington; or
The attorney general, if requested by the county prosecuting attorney identified in (a) of this subsection. If the county prosecuting attorney requests that the attorney general file and prosecute a case under this chapter, then the county shall charge the attorney general only the fees, including filing and jury fees, that would be charged and paid by the county prosecuting attorney, if the county prosecuting attorney retained the case.
If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated as provided in RCW 71.09.020(18)(c), the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated as defined in RCW 9.94A.030.
If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the department of social and health services for placement in a secure facility operated by the department of social and health services for control, care, and treatment until such time as: (a) The person's condition has so changed that the person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest of the person and conditions can be imposed that would adequately protect the community.
If the court or unanimous jury decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person's release.
If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial and set a retrial within forty-five days of the date of the mistrial unless the prosecuting agency earlier moves to dismiss the petition. The retrial may be continued upon the request of either party accompanied by a showing of good cause, or by the court on its own motion in the due administration of justice provided that the respondent will not be substantially prejudiced. In no event may the person be released from confinement prior to retrial or dismissal of the case.
If the person charged with a sexually violent offense has been found unable to proceed to trial due to a mental health condition, and is about to be or has been released pursuant to RCW 10.77.086(7), and his or her commitment is sought pursuant to subsection (1) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under RCW 10.77.086(7) that the person committed the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while unable to proceed, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's inability to proceed or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section.
Except as otherwise provided in this chapter, the state shall comply with RCW 10.77.220 while confining the person. During all court proceedings where the person is present, the person shall be detained in a secure facility. If the proceedings last more than one day, the person may be held in the county jail for the duration of the proceedings, except the person may be returned to the department's custody on weekends and court holidays if the court deems such a transfer feasible. The county shall be entitled to reimbursement for the cost of housing and transporting the person pursuant to rules adopted by the secretary. The department shall not place the person, even temporarily, in a facility on the grounds of any state mental facility or regional habilitation center because these institutions are insufficiently secure for this population.
A court has jurisdiction to order a less restrictive alternative placement only after a hearing ordered pursuant to RCW 71.09.090 following initial commitment under this section and in accord with the provisions of this chapter.
The legislature finds that among those persons who endanger the safety of others by committing crimes are a small number of persons with developmental disabilities. While their conduct is not typical of the vast majority of persons with developmental disabilities who are responsible citizens, for their own welfare and for the safety of others the state may need to exercise control over those few dangerous individuals who are individuals with developmental disabilities, have been charged with crimes that involve a threat to public safety or security, and have been found either unable to proceed to trial due to a mental health condition or not guilty by reason of insanity.
The legislature finds, however, that the use of civil commitment procedures under chapter 71.05 RCW to effect state control over dangerous individuals with developmental disabilities has resulted in their commitment to institutions for the individuals with mental illness. The legislature finds that existing programs in mental institutions may be inappropriate for persons who are individuals with developmental disabilities because the services provided in mental institutions are oriented to persons with mental illness, a condition not necessarily associated with developmental disabilities.
Therefore, the legislature believes that, where appropriate, and subject to available funds, persons with developmental disabilities who have been charged with crimes that involve a threat to public safety or security and have been found unable to proceed to trial due to a mental health condition or not guilty by reason of insanity should receive state services addressing their needs, that such services must be provided in conformance with an individual habilitation plan, and that their initial treatment should be separate and discrete from treatment for persons involved in any other treatment or habilitation program in a manner consistent with the needs of public safety.
(1) For the purposes of funds appropriated for the treatment of sexually aggressive youth, the term "sexually aggressive youth" means those juveniles who:
The amendments in this act are not intended to change the substantive meaning of the underlying concepts involved, and do not change the applicability or effect of prior case law related to criminal insanity or inability to proceed to trial due to a mental health condition.
Sections 43 and 45 of this act take effect when sections 2 and 10, chapter 210, Laws of 2022 take effect.