Sentencing panel backs framework to let some defendants avoid felony record after completing diversion

The Washington State Sentencing Guidelines Commission voted to support a policy framework that would let some people charged with eligible felonies earn the opportunity to avoid a felony conviction following successful completion of a first-time-offender program.

Judge Swan, who chaired the meeting, told commissioners the first-time-offender waiver (FTOW) and the House bill drafted last session (HB 22-17) would be the focus of the discussion and that the commission should try to reach a direction before returning to details. "I do think it was really helpful today that we at least knew what a direction we wanted to go," he said.

Advocates for changing the statute said uptake of the current FTOW is low because the alternative often offers no clear benefit compared with the standard sentencing range. "When they hear that a first time offender waiver doesn't result in giving them an avenue away from a felony conviction, and requires more onerous conditions than what they would have otherwise, it just has no value to them," said Miss Brandes, a defense attorney speaking from the defense perspective.

Carrie Anne, staff who reviewed statewide survey responses, told the commission respondents most often cited three barriers: the FTOW currently provides little or no incentive compared with the standard range, prosecutors and judges are reluctant to use it, and the eligibility criteria are too narrow. "The standard sentence range is less than what the FTOW would be, so there's no incentive to participate," she said.

Law enforcement and some judges raised concerns about which offenses should be eligible. "I think felony DUI ... shouldn't get the first time offender waiver," Chief Smith said, arguing that some crimes reflect repeated dangerous behavior. Carrie Anne clarified the bill under discussion excludes felony DUI from eligibility.

Members debated structural options: keep FTOW as a post-conviction sentencing alternative, convert it to a pretrial deferral or suspended-sentence model, create a two-tier approach for more serious offenses, or permit dismissal versus reduction to a misdemeanor for successful completion. Representative Davis and others urged caution about changing multiple parts of the system simultaneously and emphasized the need for clear statutory language on eligibility, standards for compliance and revocation, and local fiscal impacts. "Our fiscal notes ... do not show cost savings," Representative Davis said, noting state fiscal processes focus on outlays and may not reflect local savings.

The commission reviewed the key provisions in HB 22-17, including options for pretrial deferral or suspended sentence, waiver of trial rights if a deferral is granted, community custody terms (up to six months, or up to one year if treatment is ordered), procedures for revocation with a hearing and sanctions not to exceed the defendant's standard sentencing range, and a requirement that the court dismiss the case or terminate the suspended sentence if the defendant substantially completes the terms.

After extended debate, Miss Benward moved that the commission support "a first-time-offender sentencing alternative that would allow a defendant to earn the opportunity to avoid a felony conviction and collateral consequences of said conviction following successful completion of the first-time offender waiver." Miss Bridal seconded the motion. The commission recorded 12 votes in favor, one opposed and two abstentions; the motion passed.

Commissioners said the vote represents a policy direction rather than final statutory language. Staff will compile alternative statutory language and models (including national examples of deferred adjudication and sealing/expungement approaches) for the commission to consider in subsequent meetings. The commission set a follow-up on FTOW for its next scheduled meeting and will circulate comparative models and the survey materials ahead of that session.

The meeting adjourned with the commission planning to reconvene and continue refining eligibility, supervision and revocation language before recommending specific statutory language to the Legislature.