Court rules petty criminals can’t be forced into treatment

Nonviolent criminals who are sentenced to less than a year in jail can’t be forced to receive drug or alcohol treatment after their release, a new court ruling says.

Judges can’t order state probation officers to make sure burglars and other petty criminals follow through on drug-treatment programs or other release conditions, according to the Eastern Washington division of the state Court of Appeals.

“It’s one more chance for people to commit crimes and go out and not be supervised,” said Jack Driscoll, Spokane County’s chief criminal deputy prosecutor.

The ruling also didn’t go over well with Superior Court Judge Tari Eitzen, who runs a drug court program.

“I think it’s a disservice to the community when we are not supervising these people,” Eitzen said. “It’s just really concerning.”

Eitzen predicted the appellate ruling will be a topic of discussion when the state Sentencing Guidelines Commission, of which she is a member, meets on Friday.

The decision stems from a cost-cutting amendment the Legislature passed in 2003, limiting probation to sentences of a year or more except for sex offenses, other violent offenses or major drug crimes.

Many judges had reasoned that lesser drug offenses, such as simple possession, also would be exempt from the amendment. They cited another law that allows judges to impose conditions on offenders after they complete their jail terms if drug addiction contributed to the crime. But the three-judge Court of Appeals panel turned that reasoning on its head.

Trial judges are allowed to impose post-release conditions only in sentences for which state law authorizes probation, not the other way around, the appellate court said.

According to the Court of Appeals, the Legislature’s intention was clear when it amended the probation law: to cut costs for the state Department of Corrections. Another part of the amendment allowed prison officials to reduce sentences by half instead of one-third for certain less-serious offenders who behave well in prison, the court noted.

Assistant Attorney General Ronda Larson conceded that lawmakers wanted to cut costs but said she sought the appellate ruling because of legal concerns. She said the Department of Corrections was between a rock and a hard place when judges insisted on ordering supervision that probation officers weren’t authorized to provide.

Officials could be held in contempt of court for ignoring a judge’s order, but they could be vulnerable to legal challenges by offenders if they obeyed such orders, Larson said.

“That was a big due-process violation for the offender,” she said.

Eitzen speculated that the appeals court ruling may affect hundreds of cases. She said Department of Corrections officials generally have gone ahead and provided supervision when she insisted it was needed.

“I guess this is the line in the sand,” she said of the appellate decision.

Larson said four sentences, involving three Spokane County defendants named in the appellate ruling, are the only cases she knows of in which Department of Corrections officials or the Attorney General’s Office were unable to persuade trial judges to drop disputed supervision orders.

Ironically, two of the sentences were handed down by Judge John Schultheis, a colleague of the Court of Appeals judges who said he was wrong. Schultheis was acting as a fill-in Superior Court judge when he sentenced Ty J. Jordan for two counts of second-degree theft and Donald James Konshuk for second-degree unlawful possession of a firearm and second-degree unlawful possession of explosives.

The other two probation-requiring sentences were issued by Superior Court Judge Sam Cozza in two cases involving Tamra A. Jones, who was convicted of forgery, unlawful possession of pay instruments and second-degree possession of stolen property.