Limited Treatment Options: SSOSA standards
by
Cassandra Lea Stamm on May. 17, 2010
Summary: In 2005, the Washington legislature enacted a new law restricting eligibility for the Special Sex Offender Sentencing Alternative ("SSOSA"), increasing the potential unsuspended term of confinement therein, and making both the conditions imposed and the court's supervision thereof more onerous.
DEFENSE MAY 2005
Limiting Treatment Options:
New SSOSA standards take effect on July 1, 2005.
BY CASSANDRA STAMM
Once again, in a seemingly endless upward ratcheting of penalties, our legislature has enacted a new law “providing for enhanced penalties for sex crimes against children.” The rhetoric accompanying HB 2400, passed in 2004, was very base: “if you do the crime, you do the time.” Apparently, the 2004 legislature found this cherished sentiment at odds with the Special Sex Offender Sentencing Alternative (SSOSA), noting “SSOSA has led to sentences for these crimes dramatically below the standard range.… Offenders should get treatment in prison, not in the community.” Lovely.
The end result was a new law, effective July 1, 2005, that restricts SSOSA eligibility, increases the potential unsuspended term of confinement, and makes both the conditions imposed and the court’s supervision thereof more onerous.
Eligibility. Our clients are currently eligible for SSOSA if: they are convicted of a sex offense other than Rape 2 or a serious violent offense, they have no prior sex offense convictions, and their standard range is less than eleven years confinement. The new law additionally precludes SSOSA eligibility for clients if they have a prior adult conviction for a violent offense committed within five years of the current offense, if the current offense resulted in substantial bodily harm, or if the offender’s sole connection with the victim was the commission of the crime.
In addition to these eligibility criteria, the new law affects other criteria the sentencing court is to consider. Currently, the law directs the sentencing court to consider whether the offender and the community will benefit from a SSOSA and the victim’s opinion about whether the offender should receive a SSOSA. Under the new law, the sentencing court must additionally give “great weight” to the victim’s opinion. In this context, victim is broadly defined to include any person who has sustained emotional, psychological, physical, or financial injury as a result of the crime — including the parents or guardians of a victim who is a minor child. If the sentence imposed is contrary to the victim’s opinion, the new statute directs the court to enter written findings stating its reasons for imposing the disposition.
The new statute also mandates that the sentencing court consider additional factors: whether SSOSA is too lenient in light of the offense, whether the offender has additional victims, amenability to treatment, and the risk the offender would present to the community, the victim, or persons of similar age and circumstances. With respect to treatment amenability, the new law provides that the fact that the offender admits to the offense does not, by itself, constitute amenability.
Term of Confinement. Currently, the sentencing court may impose up to six months confinement as a condition of a SSOSA. Under the new law, the sentencing court shall order up to 12 months confinement. Additionally, the sentencing court may impose more than 12 months confinement, based on an aggravating circumstance. This term of confinement may be partial but is not eligible for any earned early release.
Conditions. Currently, the sentencing court must order treatment for up to three years’ duration. The new scheme increases the allowable treatment duration to five years. The new law also provides that the offender’s treatment provider may not be the same person who examined the offender to determine eligibility — or any person who employs, is employed by, or shares profits with that person (unless the court makes written findings that such treatment is in the best interests of the victim and that treatment would otherwise be impractical).
In addition to the other currently mandatory conditions of SSOSA (community custody and sex offender treatment), the new statute requires specific prohibitions and affirmative conditions relating to known precursor activities or behaviors (as identified in the proposed treatment plan or an annual review).
Progress and Termination Hearings. Currently, the sentencing court is not generally required to hold regular progress hearings. Under the new law, the court must conduct a hearing on the offender’s progress in treatment at least once a year. The victim must be given notice and an opportunity to make statements regarding the offender’s supervision and treatment. At such hearings, the court may modify the conditions of community custody.
Currently, the Department of Corrections shall either impose sanctions or refer violations of conditions to the court for revocation. The revised statute will require that if the violation is “a second violation of the prohibited or affirmative conditions relating to the precursor behaviors or activities,” the department shall refer it to the court and recommend revocation.
At present, the victim is not statutorily entitled to notice of a treatment termination hearing. As of July 1, 2005, the court is required to give the victim at least 14 days notice and an opportunity to be heard regarding the offender’s supervision and treatment. Currently, either party may request a second evaluation regarding termination from treatment. The new law changes this provision to allow the court to order such an evaluation without either party’s request.
Finally, the sentencing court currently may elect not to terminate treatment and instead to extend it. The new statute adds that such extensions shall be imposed in two-year increments. Perhaps at some point the apparently endless upward ratcheting of penalties for sex offenders will stop or at least subside. Until then, we need to remain vigilant in the fight to slow the process. In this respect it is worth noting that the original version of the bill that was passed was far worse and, in the words of one perceptive staffer, would “make sex offenders ineligible for SSOSA.” In large part, we have WACDL and WDA to thank for lobbying against this troubling prospect.
Cassandra Stamm is a solo practitioner with an emphasis in criminal defense. She may be reached at Law Offices of Cassandra Stamm, PLLC, 800 Fifth Ave., Suite 4100, Seattle, WA 98104, or by phone at 206-264-8586.
