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AGO 1987 No. 19 - July 28, 1987
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

INMATE ‑- SEXUAL PSYCHOPATH ‑- TRANSFER TO DEPARTMENT OF CORRECTIONS ‑- MINIMUM TERM ‑- AUTHORITY OF INDETERMINATE SENTENCE REVIEW BOARD TO REQUEST PAROLE PLAN ‑- NECESSITY FOR COURT ORDER TO RELEASE INMATE 

After an inmate adjudicated to be a sexual psychopath pursuant to chapter 71.06 RCW has been transferred to the Department of Corrections and served the minimum duration of confinement (less good time), the Indeterminate Sentence Review Board does have the authority to request that a parole plan be prepared.

After the Board has approved a parole plan, it is not necessary for the superintendent and the Board to have a release signed by the committing court pursuant to RCW 71.06.091 prior to release of the inmate on parole.

                                                              - - - - - - - - - - - - - 

                                                                    July 28, 1987

Honorable Kathryn S. Bail, Chair
Indeterminate Sentence Review Board
700 Capital Center Building, FN-71
Olympia, WA 98504

Honorable Chase Riveland, Secretary
Department of Corrections
Capital Center Building, FN-61
Olympia, WA 98504

Cite as:  AGO 1987 No. 19                                                                                                                

 Dear Ms. Bail and Secretary Riveland:

             By letter previously acknowledged, you have requested the opinion of this office on two questions, which we have paraphrased as follows:

             (1) After an inmate adjudicated to be a sexual psychopath pursuant to chapter 71.06 RCW has been transferred to the Department of Corrections and served the minimum duration of confinement (less good time), does the Indeterminate Sentence Review Board have authority to request that a parole plan be prepared?

             (2) If the Board has such authority and has approved a parole plan, is it necessary for the superintendent and  [[Orig. Op. Page 2]] the Board to have a release signed by the court pursuant to RCW 71.06.091?  May the inmate be released on parole without a court order?

             We answer your first question in the affirmative and your second question in the manner set forth in our analysis.

                                                      BACKGROUND

             Our answers to your questions are based upon the following facts:  An individual was found to be a sexual psychopath pursuant to chapter 71.06 RCW.1/

             The court committed the individual to the Secretary of Social and Health Services, who designated a facility for detention, care, and treatment pursuant to RCW 71.06.060.

             Under RCW 71.06.091, the sexual psychopath was retained by the designated facility for a period of time.  The superintendent of that facility then informed the court that the individual either was safe to be at large, or had received the maximum benefit of treatment, or was not amenable to treatment.  The court determined that the sexual psychopath should be transferred to the Department of Corrections to serve the original sentence imposed.  The inmate currently is being retained at a state correctional facility following proceedings as detailed above.

                                                                      ANALYSIS

             The Indeterminate Sentence Review Board (the Board) was created in 1986 to succeed the Board of Prison Terms and Paroles.  Laws of 1986, ch. 224.  The powers and duties of the Board are found in chapter 9.95 RCW.2/

              [[Orig. Op. Page 3]]

             Your first question concerns the authority of the Board to request a parole plan for a person adjudged to be a sexual psychopath, who currently is incarcerated in one of this state's correctional facilities.  The inmate has served the minimum duration of confinement,3/ less good time.4/

              RCW 72.04A.070, the statute regarding parole plans, reads as follows:

             The secretary of corrections shall cause to be prepared plans and recommendations for the conditions of supervision under which each inmate of any state penal institutions [sic] who is eligible for parole may be released from custody.  Such plans and recommendations shall be submitted to the board of prison terms and paroles which may, at its discretion, approve, reject, or revise or amend such plans and recommendations for the conditions of supervision of release of inmates on parole, and, in addition, the board may stipulate any special conditions of supervision to be carried out by a probation and parole officer.5/

              [[Orig. Op. Page 4]]

             This statute is consistent with the provisions of RCW 9.95.052, which allows the Board to request a report on a convicted person's prospects for rehabilitation by the superintendent of the correctional institution and to consider that report along with "such other information and investigation that the board deems appropriate."6/

              The inmate in question has been transferred to the Department of Corrections to serve the original sentence imposed pursuant to a court order as provided in RCW 71.06.091.  The equal protection clause of the United States Constitution requires that all similarly situated individuals must be treated equally.  In re Knapp, 102 Wn.2d 466, 687 P.2d 1145 (1984).  Once the offender comes under the authority of the Department of Corrections, we can find no legal basis for treating the inmate differently than others confined in correctional facilities.

             Assuming that other inmates who had committed similar offenses would have parole plans prepared following completion of minimum confinement less good time, we therefore conclude that parole plans may also be requested for sexual psychopaths confined pursuant to a court order under RCW 71.06.091.  Accordingly, we answer your first question in the affirmative.

             We turn now to your second question, which is repeated here for ease of reference.

             If the Board has such authority and has approved a parole plan, is it necessary for the superintendent and the board to have a release signed by the court pursuant to RCW 71.06.091?  May the inmate be released on parole without a court order?

             We assume your question was prompted by RCW 71.06.091, which requires in part that "the superintendent of the institution involved shall never release the sexual psychopath from custody without a court release as herein set forth."

             [[Orig. Op. Page 5]]

             It is a general rule of statutory construction that to determine legislative intent, the statutory scheme as a whole should be examined.  Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968); Department of Fisheries v. Chelan Cy. Pub. Util. Dist. 1, 91 Wn.2d 378, 588 P.2d 1146 (1979).  RCW 71.06.010 defines "superintendent" as "the superintendent of a state institution designated for the custody, care and treatment of sexual psychopaths . . ."  RCW 71.06.050 provides for the filing of a report by the superintendent of a state hospital following a court-ordered observation period under RCW 71.06.040.  Following receipt of the report, the court must make its determination whether the person is a sexual psychopath.  If so, then the court must commit the person to the Secretary of Social and Health Services for the designation of a facility for "detention, care, and treatment."  RCW 71.06.060.

             RCW 71.06.010, in defining "superintendent," refers to "custody, care and treatment" and RCW 71.06.060, in discussing hospital confinement, refers to "detention, care and treatment."  The underlying question then is whether "superintendent" (as used in RCW 71.06.091) encompasses not only the head of a facility for treatment, but also the head of a correctional facility.7/

"Custody" means "a guarding or keeping safe; care; protection, guardianship."  Webster's New World Dictionary 349 (2d Coll. Ed. 1976).  "Detention" means "a keeping in custody; confinement."  Webster's New World Dictionary 384 (2d Coll. Ed. 1976).  The Legislature is presumed to know the meaning of words it uses in statutes,State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), and the words should be given their ordinary meaning where no statutory definition is provided, State v. Roadhs, 71 Wn.2d 705, 430 P.2d 586 (1967).  Considering the meanings of  [[Orig. Op. Page 6]] "custody" and "detention" and reading the chapter as a whole, it is our opinion that the words "custody" and "detention" are synonymous as used in chapter 71.06 RCW.

             Carrying our analysis one step further, we believe that the "superintendent" referred to in RCW 71.06.091 is only the superintendent of the Social and Health Services facility designated to provide treatment for the sexual psychopath.  RCW 71.06.091 requires the superintendent to report back to the committing court when the sexual psychopath is safe to be at large, has received the maximum benefit of treatment, or is not amenable to treatment but the superintendent is unable to render an opinion that the individual is safe to be at large.  The superintendent may not release the sexual psychopath from the state hospital without an order of the court.  One of the options available to the court is to transfer the individual to the Department of Corrections to serve the original sentence imposed.  The statute does not require that the Department of Corrections return to the committing court once the original sentence is completed.8/

             Accordingly, we conclude that RCW 71.06.091 does not require the Board to obtain an order from the committing court prior to releasing, on parole, an inmate who was returned to the Department of Corrections to serve the original sentence.  In so concluding, we do not render any opinion regarding the appropriate date or time for release of any such inmate.  RCW 9.95.100, which is applicable only to offenses committed prior to July 1, 1984, provides for release of inmates who have completed the maximum term imposed and also instructs the Board that an inmate shall not be released prior to the completion of the maximum term unless rehabilitation is complete and the inmate is a fit subject for release.  Thus, an inmate who has completed a minimum sentence (rather than maximum) may or may not be rehabilitated and a fit subject for release.  The Legislature has delegated this determination to the Board.

              [[Orig. Op. Page 7]]

             We also are mindful ofAddleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 730 P.2d 1327 (1986), in which the court considered the applicability of the Sentencing Reform Act of 1981 to crimes committed prior to the effective date of the act, July 1, 1984.  In that case, the court concluded that "generally Board decisions on duration of confinement must be made in accordance with the requirements of RCW 9.95.009(2)."  Addleman, 107 Wn.2d at 511.  This statute directs the Board to consider the provisions of the sentencing reform act when making decisions regarding parole release.  The court inAddleman, however, recognized that the Board may, for adequate written reasons, decide not to conform a sentence to the sentencing reform act.  Examples of reasons for decisions not conforming to the sentencing reform act at parole hearings include insufficient rehabilitation and an improper parole plan.  Addleman, 107 Wn.2d at 511.  The applicability of the court's holding in Addleman to those inmates who prompted your inquiry is best left to the discretion of the Board.

            We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MEREDITH WRIGHT MORTON
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/RCW 71.06.005 states that chapter 71.06 RCW applies only to crimes or offenses committed before July 1, 1984.  Inasmuch as your question inquires about inmates who have been adjudicated to be sexual psychopaths pursuant to chapter 71.06 RCW, we therefore assume that your inquiry relates only to inmates who committed sexual offenses before July 1, 1984, and we will not discuss inmates who committed offenses after that date.

 2/As explained in note 1, your question relates to offenses committed prior to July 1, 1984.  RCW 9.95.009(2) grants specific authority to the Indeterminate Sentence Review Board to continue the functions of the Board of Prison Terms and Paroles with respect to persons convicted of crimes prior to July 1, 1984.

 3/All the time served in the state hospital is to be included in the Board's computation of minimum duration of confinement.  RCW 71.06.120 grants credit for time served in a state hospital.  This statute is applicable to the discretionary minimum term as well as to the maximum sentence pronounced by the court.  In re Knapp, 102 Wn.2d 466, 687 P.2d 1145 (1984).

 4/RCW 9.95.070 provides for time credit reductions from the term of imprisonment fixed by the Board of Prison Terms and Paroles upon a showing of good behavior as evidenced in a report filed with the Board by the superintendent of the correctional facility where the inmate is confined.  RCW 9.95.070 is applicable to "every prisoner" confined in a penitentiary or reformatory.

 5/This statute also is inapplicable to crimes committed on or after July 1, 1984, and requires submission of parole plans to the Board of Prison Terms and Paroles.  As stated in note 2,supra, RCW 9.95.009(2) grants specific authority to the Indeterminate Sentence Review Board to continue the functions of the Board of Prison Terms and Paroles as to felonies committed on or before July 1, 1984.

 6/Although RCW 9.95.052 is not applicable to felonies committed on or after July 1, 1984, it nevertheless continues to be in force for those crimes committed prior to that date.  Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 506-07, 730 P.2d 1327 (1986).

 7/Inasmuch as RCW 71.06.091 states that the "superintendent of the institution involved shall never release the sexual psychopath from custody without a court release . . .", we believe that the "superintendent" referred to must have actual physical custody of the individual.  Given that the inmates in question are no longer housed in a state hospital, but are incarcerated in a correctional facility, the superintendent of the state hospital no longer has custody.  Similarly, the hospital superintendent no longer has the ability to "release" the offender.  Accordingly, RCW 71.06.091 is applicable to your inquiry only if "superintendent" also means the head of a correctional facility who has physical custody of the inmate and the ability to release the individual.

 8/We note also that RCW 71.06.091 mentions "superintendent" five times.  The sentence containing the restriction on the superintendent's ability to release from custody without a court order is the final one in the statute.  Reading the statute in its entirety, it is clear that the first four references to "superintendent" refer to the superintendent of a sexual psychopath treatment facility.  Had the Legislature intended to alter the meaning of the word "superintendent" within the statute, we believe it would have specifically done so.

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