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Who is eligible for a residential DOSA in Washington?

Posted by Brian C. Zuanich | Jun 03, 2019 | 0 Comments

To quickly summarize a large body of sociological research and opinions about punishment: Prison may not be the answer for criminal defendants who suffer from substance abuse problems. Prison may be the answer, however, for those defendants who commit serious felonies as opposed to minor misdemeanors.

What about defendants who suffer from substance abuse but who also commit felonies?

Enter the DOSA.

DOSA Explained

As the name indicates, a drug offender sentencing alternative (DOSA) is an alternative to a typical prison sentence that felony offenders typically receive. In Washington, there are two types of DOSA sentences: prison-based and residential-based.

Under a prison-based DOSA, offenders get a reduced prison sentence in exchange for completing an intensive, residential inpatient drug treatment program in the community and complying with strict release conditions (like obviously, not using illegal substances).

Under a residential DOSA, offenders receive no prison at all time at all; instead, they complete treatment at a Department of Corrections-funded residential facility, which vary in length depending on the severity of the substance abuse.

In non-legal terminology, think of the DOSA as the equivalent of really strict parole.

The Sentencing Reform Act (briefly explained)

Leanne Hardy pleaded guilty to three felonies—two counts of unlawful drug possession (heroin and methamphetamine) and one count of bail jumping.

In Washington, sentencing is different for felonies and misdemeanors. With misdemeanors, judges can more or less impose whatever sentence they feel is appropriate consistent with the law. 

Felony sentencing is less discretionary. Under the Sentencing Reform Act (SRA), judges use a “grid” to determine the punishment for adult felons based on the seriousness of the offense and the offender's criminal record.

Using the grid, judges arrive at an “offender score,” which determines the range of punishments an offender can receive. The higher the score, the higher the punishment. Absent exceptional circumstances, judges cannot deviate from this punishment range.

Based on Hardy's offender score, the standard sentencing range for her drug charges was 6 to 12 months in prison and 17 to 22 months for her bail jumping charge.

Is Hardy eligible for a DOSA?

By agreement of the parties, the superior court imposed a residential DOSA. Seemed like an open and shut case.

Except the Department of Corrections (DOC) had a problem with it.

Now you might reasonably wonder why DOC's opinion matters. If the prosecutor, the defendant, and the judge all agree, then what else matters?

But under the Washington Rules of Appellate Procedure (RAP 18.16 to be exact), DOC can ask the court of appeals within 90 days to review any sentence that involves committing an offender to DOC custody, which a residential DOSA certainly does.

In The Matter of Postsentence Review of Hardy, DOC argued that Hardy was not eligible for a residential DOSA. To be eligible, by law the end of the standard sentence range for the current offense has to greater than one year. Because the range of Hardy's drug charges was less than one year, she wasn't eligible for a residential DOSA.

The Court disagreed. An offender like Hardy is eligible for a residential DOSA if she “has at least one sentence whose standard sentence range will be greater than one year.” Hardy was eligible because her bail jumping charge had a 17 to 22 month range.

But what about the sentence limitation relied upon by DOC? To simplify a complicated analysis, the Court reviewed the history and development of the SRA and concluded that DOSA sentencing is offender-based, not offense-based. That is, the SRA talks a lot about “offenders” being eligible for DOSA, as opposed to simply “offenses” being eligible for DOSA.

Furthermore, the Court ruled, the DOC's interpretation would lead to “absurd” results. Assume Hardy's drug offenses had the same sentencing range as her bail jumping charge—then she would clearly be eligible for a DOSA. But because her drug offenses are less serious, she's not eligible?

But isn't the point of a residential DOSA to offer community-based treatment for non-violent felony offenders who need treatment more than prison? For these reasons, Hardy got her DOSA.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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