CRIMINAL CODE REVISION PROJECT

CLASSIFICATION OF CRIMES

(1) With respect to "unclassified crimes," that is, crimes that are not specified as gross misdemeanors, misdemeanors, or A,B, or C felonies, but that carry a defined penalty:

(a) If the penalty stated matches a particular classification of felony or misdemeanor, the statute will be amended to classify the crime accordingly. So, if a statute states that a violation is punishable by imprisonment of not more than 90 days, or a fine of not more than $1,000, or both, it will be amended to state only that the crime is a misdemeanor.

(b) With respect to felonies, if the penalty stated does not fit exactly within an existing classification (generally, but not always, because the maximum fine is different), the statute will be amended to classify the crime based on the maximum term of imprisonment authorized, but not change the penalty. (This happens under current law for sentencing purposes due to the provisions of RCW 9.94A.035.)

Example: RCW 9.05.030 Assemblages of saboteurs.

Whenever two or more persons assemble for the purpose of committing criminal sabotage, as defined in RCW 9.05.060, such an assembly is unlawful, and every person voluntarily and knowingly participating therein by his or her presence, aid, or instigation, shall be guilty of a class B felony and punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or both.¹

By using this approach, no substantive changes are made. If, on the other hand, we deleted the specific punishment and simply identified it as a class B felony, the maximum fine would potentially increase to $20,000 under RCW 9A.20.021 and 9.94A.550, and thus it would be a substantive change.

The following conforming type amendments will also be necessary:

RCW 9A.20.021 Maximum sentences for crimes committed July 1, 1984, and after.

(1) Felony. Unless a different maximum sentence for a classified felony is specifically established by statute, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following:

(a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine . . . . . . .

RCW 9.94A.550 Fines.

Unless otherwise provided by statute, on all sentences under this chapter the court may impose fines according to the following ranges:

Class A felonies	$0 - 50,000
Class B felonies	$0 - 20,000
Class C felonies	$0 - 10,000

It is important to understand that this approach does create different possible penalties for a particular classification. So, although class B felonies will still generally carry a fine of up to $20,000, there will be some exceptions to this, such as in the example above, which as revised would be a class B felony, but with a maximum fine of $5,000 instead of $10,000.

There are also instances in the RCW where the analysis runs the other way - e.g., RCW 9.46.155 provides that the penalty for bribing a public official is a felony punishable by a term of not more than five years, or a fine of not more than $100,000, or both. Under our revision system, the crime would become a class C felony, but the fine authorized would be much greater than the $10,000 fine typically authorized for a class C felony. Other examples occur in the drug area. For example, a fine of up to $500,000 is authorized under RCW 69.50.410(5) for the sale of a Schedule I controlled substance.

This also may happen, although presumably much less frequently, with respect to the term of imprisonment. One example is RCW 69.50.402(b) which carries a 2 year, $2,000 maximum penalty. Under our revision system, it would be classified as C felony, but the penalty would remain less than the 5 years typically imposed for a class C felony.

(c) With respect to misdemeanors and gross misdemeanors, if the penalty stated does not fit exactly within an existing classification, the statute will be amended to classify the crime based on the rules set forth in RCW 9A.20.010.

Example: RCW 9.04.070 False, misleading, deceptive advertising - Penalty.

Any person who violates any order or injunction issued pursuant to RCW 9.04.050 through 9.04.080 shall be guilty of a gross misdemeanor and subject to a fine of not more than five thousand dollars or imprisonment for not more than ninety days or both.

The crime cannot not be classified as a misdemeanor because it authorizes a fine greater than $1,000 ( RCW 9A.20.010(2)(a)). Thus, it has to be a gross misdemeanor (RCW 9A.20.010(2)(b)).

(d) Statutes that cannot be classified according to the above rules because they authorize either a felony or misdemeanor penalty for the same offense will be compiled and presented to the legislature for a policy decision as to how they should be classified. Hopefully, there are not many statutes written in this way.

Example: RCW 9.16.010 Removing lawful brands.

Every person who shall willfully deface, obliterate, remove, or alter any mark or brand placed by or with the authority of the owner thereof on any shingle bolt, log or stick of timber, or on any horse, mare, gelding, mule, cow, steer, bull, sheep, goat or hog, shall be punished by imprisonment in a state correctional facility for not more than five years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both fine and imprisonment.

(2) With respect to an offense identified only as a "felony," with no penalty stated, or an offense stating a minimum and no maximum penalty, the statute will be amended to identify the offense as a class B felony. Presumably, this is how these offenses are currently being handled under RCW 9.92.010.

Example: RCW 9.05.060 Criminal sabotage defined--Penalty.

(1) Whoever, with intent that his or her act shall, or with reason to believe that it may, injure, interfere with, interrupt, supplant, nullify, impair, or obstruct the owner's or operator's management, operation, or control of any agricultural, stockraising, lumbering, mining, quarrying, fishing, manufacturing, transportation, mercantile, or building enterprise, or any other public or private business or commercial enterprise, wherein any person is employed for wage, shall willfully damage or destroy, or attempt or threaten to damage or destroy, any property whatsoever, or shall unlawfully take or retain, or attempt or threaten unlawfully to take or retain, possession or control of any property, instrumentality, machine, mechanism, or appliance used in such business or enterprise, shall be guilty of criminal sabotage.

(2) Criminal sabotage is a class B felony.

Example: RCW RCW 69.40.030 Placing poison or other harmful object or substance in food, drinks, medicine, or water--Penalty.

Every person who willfully mingles poison or place[s] any harmful object or substance, including but not limited to pins, tacks, needles, nails, razor blades, wire, or glass in any food, drink, medicine, or other edible substance intended or prepared for the use of a human being or who shall knowingly furnish, with intent to harm another person, any food, drink, medicine, or other edible substance containing such poison or harmful object or substance to another human being, and every person who willfully poisons any spring, well, or reservoir of water, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not less than five years or by a fine of not less than one thousand dollars: PROVIDED, HOWEVER, That *this act shall not apply to the employer or employers of a person who violates the provisions contained herein without such employer's knowledge.

DRAFTING STRUCTURE

(1) RCW sections will be amended to ensure that each penalty provision is contained in a separate subsection, e.g., RCW 9A.36.021(2). If necessary, it is acceptable to instead go to the next level of subsection, e.g., RCW 9A.36.021(2)(a) and (b).

Example: RCW RCW 9A.36.021 Assault in the second degree.

(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or

(b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or

(c) Assaults another with a deadly weapon; or

(d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or

(e) With intent to commit a felony, assaults another; or

(f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.

(2) Except as provided in (b) of this subsection, assault in the second degree is a class B felony, except that assault in the second degree with a finding of sexual motivation under RCW *9.94A.835 or 13.40.135 is a class A felony.

(b) Assault in the second degree with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135 is a class A felony.

(2) If a single RCW section contains two or more separate and distinct crimes that can be readily divided (e.g., no common provisions), that RCW will be amended to put each crime in a separate RCW. Otherwise, for instance if there are different penalties for the same crime due to a finding of sexual motivation as in the example in (1) above, or because of the use of a firearm, or because it's a second conviction, or due to the amount of money or goods involved, or if there are many common provisions, etc., etc., the section will not be divided into two or more RCW's. However, the RCW section will be amended if necessary to ensure that each penalty provision is contained in a separate subsection as described in rule (1) above.

Example: RCW 9A.56.080 Theft of livestock in the first degree.

(1) Every person who, with intent to sell or exchange and to deprive or defraud the lawful owner thereof, wilfully takes, leads, or transports away, conceals, withholds, slaughters, or otherwise appropriates any horse, mule, cow, heifer, bull, steer, swine, or sheep is guilty of theft of livestock in the first degree.

(2) A person who commits what would otherwise be theft of livestock in the first degree but without intent to sell or exchange, and for the person's own use only, is guilty of theft of livestock in the second degree.

(3) (2) Theft of livestock in the first degree is a class B felony.

(4) Theft of livestock in the second degree is a class C felony.

New Section. RCW 9A.56.xxx Theft of livestock in the second degree.

(1) A person who commits what would otherwise be theft of livestock in the first degree under RCW 9A.56.080 but without intent to sell or exchange, and for the person's own use only, is guilty of theft of livestock in the second degree.

(2) Theft of livestock in the second degree is a class C felony.

(3) Many statutes contain different "versions" of a crime in several numbered subsections, and then the penalty or penalties in another. These will be left as is, except that that the penalty provisions (if more than one) will be separated into different subsections as set out in rule (1) above. Note that two subsections will then need to be recorded and tracked - one to identify the particular offense and one to identify the applicable penalty.

Example: RCW 9A.40.070 Custodial Interference in the second degree.

(1) A relative of a person is guilty of custodial interference in the second degree if, with the intent to deny access to such person by a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person, the relative takes, entices, retains, detains, or conceals the person from a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person. This subsection shall not apply to a parent's noncompliance with a court-ordered parenting plan.

(2) A parent of a child is guilty of custodial interference in the second degree if: (a) The parent takes, entices, retains, detains, or conceals the child, with the intent to deny access, from the other parent having the lawful right to time with the child pursuant to a court-ordered parenting plan; or (b) the parent has not complied with the residential provisions of a court-ordered parenting plan after a finding of contempt under RCW 26.09.160(3); or (c) if the court finds that the parent has engaged in a pattern of willful violations of the court-ordered residential provisions.

(3) Nothing in (b) of this subsection prohibits conviction of custodial interference in the second degree under(a) or (c) of this subsection in absence of findings of contempt.

(4) The first conviction of custodial interference in the second degree is a gross misdemeanor. The second or subsequent conviction of custodial interference in the second degree is a class C felony.

(5) The second or subsequent conviction of custodial interference in the second degree is a class C felony.

(4) In some RCW chapters, including several chapters in title 69, there is one penalty section that applies to any violation of the entire chapter. This structure will remain as is. To do otherwise would require a judgment as to which provisions the legislature intended to criminalize. (Of course, if there are only a few sections and they are specifically identified, then the penalty section will be moved to each of those sections.) Again, note that this approach requires the recording and tracking of two RCW sections - one specifying the crime and another identifying the general penalty provision.

Example: RCW 17.21.310 General penalty.

(1) Except as provided in subsection (2) of this section, any person who shall violate any provisions or requirements of this chapter or rules adopted hereunder shall be deemed is guilty of a misdemeanor and guilty of a gross misdemeanor for any second and subsequent offense: PROVIDED, That any offense committed more than five years after a previous conviction shall be considered a first offense.

(2 A second or subsequent violation of any of the provisions or requirements of this chapter, or the rules adopted hereunder, is a gross misdemeanor. Any offense committed more than five years after a pervious conviction shall be considered a first offense.

(5) No new "degrees" of crimes will be created where they do not already exist since doing so may be viewed as a substantive change.

(6) In some chapters of title 9A (e.g, 9A.56 -- Theft), the crime and its defenses are defined generally in one RCW section, then the different degrees of the crime with the corresponding penalties are set forth in the following RCW sections. This structure will be left in place. It, too, will then require the recording and tracking of one RCW section identifying the crime and a different RCW section identifying the penalty.

(7) With respect to anticipatory offenses, such as criminal attempt, solicitation, and conspiracy, code revisions will not be necessary as long as the system can handle the entering of multiple RCW numbers for a single charge. It may be necessary to enter four or five RCW numbers, e.g., one for the definition of the offense, one for the penalty, one to identify the relevant anticipatory offense statute, and one or more for sentencing enhancements, such as a firearm enhancement.