When a person is convicted of a criminal offense, the person generally may not appeal the imposed sentence if it is consistent with the standard sentencing range and other guidelines provided in state law. However, the person may appeal other legal errors. Direct appeals must be filed within 30 days, while collateral attacks must typically be filed within one year. A "collateral attack" is any form of postconviction relief other than a direct appeal, and includes personal restraint petitions, habeas corpus petitions, motions to vacate judgment, motions to withdraw guilty plea, motions for a new trial, and motions to arrest judgment. There are some exceptions to the one-year time limit on collateral attacks, such as where a collateral attack is based on newly discovered evidence or a significant change in the law.
The prosecutor of a county in which an offender was sentenced for a felony offense may petition the sentencing court or the sentencing court's successor to resentence the offender if the original sentence no longer advances the interests of justice. If the court grants the petition, the court must resentence the defendant in the same manner as if the offender had not previously been sentenced, provided the new sentence is no greater than the initial sentence. The court may consider postconviction factors including, but not limited to, the following:
The prosecuting attorney must provide victims and survivors of victims access to available victim advocates and other related services, and make reasonable efforts to notify victims and survivors of victims of any petition for resentencing and the date of the resentencing hearing. The court must provide an opportunity for victims and survivors of victims of any crimes for which the offender has been convicted to present a statement personally or by representation. A resentencing does not reopen the defendant's conviction to challenges that would otherwise be barred.
A process is established for certain persons convicted of a felony offense to petition the sentencing court for a modification of the original sentence upon meeting specific eligibility criteria.
Any person under a term of partial or total confinement or subject to conditions of supervision by the Department of Corrections (DOC) for a felony conviction, other than a person sentenced as a persistent offender or for Aggravated Murder in the first degree, may petition the sentencing court or the sentencing court's successor for a modification of sentence if the original sentence no longer serves the interests of justice and the person meets any of the following criteria:
The one-year time limit on collateral attacks does not apply to any such petition. The petitioner may not file the petition any earlier than 180 days prior to the date on which the petitioner will have served the minimum required portion of the petitioner's sentence, unless the prosecuting attorney consents to the petition. The petitioner must file the petition in writing with the sentencing court in the judicial district in which the original sentence was imposed, and serve the prosecuting attorney. The DOC must assist with compiling the petitioner's disciplinary record and record of rehabilitation. The petition may include affidavits, declarations, letters, prison records, or other written or electronic materials. The petition must include a statement that the petitioner meets one or more of the following criteria:
Upon a substantial showing that the petitioner meets one or more eligibility criteria, the court must grant a hearing to consider the petition and hold the hearing within 120 days, unless continued for good cause. The prosecuting attorney must provide victims and survivors of victims access to available victim advocates and other related services, and make reasonable efforts to notify victims and survivors of victims of any petition for modification of sentence and the date of any hearing to consider the petition. The court must provide an opportunity for victims and survivors of victims of any crimes for which the petitioner has been convicted to present a statement personally or by representation at the hearing.
At the hearing to consider the petition, the court may grant the petition and modify the petitioner's original sentence if the court finds that the sentence no longer advances the interests of justice, provided that any new sentence imposed must not be greater than the original sentence and must be consistent with the following limitations:
The court may consider the following nonexhaustive factors when making its decision:
The court may impose an exceptional sentence below the standard range based on evidence of significant rehabilitation since the offense or any other applicable mitigating factors. If the petitioner's original sentence included one or more certain mandatory sentencing enhancements, the court may impose a sentence below the enhancement term.
If the court denies the petition, or grants a hearing but declines to modify the petitioner's sentence at the hearing, the court must state the basis for its decision on the record and the petitioner may file a new petition no earlier than three years after the date of the court's decision. The petitioner may appeal the denial of a hearing or an order entered pursuant to a resentencing hearing, but denying a petition does not reopen the petitioner's conviction or sentence to any other challenges that would otherwise be barred.
The court may not permit any person to waive the right to petition, and any such waiver is void. An incarcerated person who is eligible to file a petition and who is unable to afford counsel is entitled to have counsel appointed, at no cost, to represent the person for the petition and related proceedings, unless the person expressly waives the right to counsel after being fully advised by the court. A person who files a pro se petition, and who subsequently retains or is appointed counsel, is entitled to amend the petition at least once with the assistance of counsel. Subsequent amendments may be permitted by leave of court.
The DOC must provide written notice of the petition process to any incarcerated person sentenced to a term of confinement longer than 10 years, and the applicable sentencing court, prosecuting attorney, and public defense agency for the judicial district in which the person was sentenced, within the following time frames:
A portion of the savings realized as a result of the newly established petition process, but no less than 25 percent, must be designated to fund the costs associated with such petitions and proceedings. Additionally, a portion of the savings realized, but no less than 25 percent, must be designated for organizations primarily dedicated to serving and supporting crime survivors.
The substitute bill: (1) provides that a person may not petition for a modification of the person's original sentence if the person was sentenced as a persistent offender or sentenced for Aggravated Murder in the first degree; (2) modifies eligibility for such petitions by providing that the petitioner must meet one or more specified criteria; (3) requires the DOC to assist in compiling the petitioner's disciplinary record and record of rehabilitation; (4) requires the court to grant a hearing to consider an eligible petition and hear it within 120 days, rather than schedule such hearing within 60 days; (5) prohibits the court from modifying the maximum terms for certain sex offenses, or the mandatory minimum terms for certain class A felonies; (6) authorizes the court to impose a sentence below the enhancement term for certain sentences that include sentencing enhancements; (7) provides that if the court denies the petition and declines to set a hearing, or grants a hearing but declines to modify the petitioner's sentence at the hearing, the court must state the basis for its decision on the record and the petitioner may file a new petition no earlier than three years after the date of the court's decision, rather than two years; (8) authorizes the petitioner to appeal the denial of a hearing or an order entered pursuant to a resentencing hearing without reopening otherwise barred challenges; and (9) modifies provisions of current law related to the circumstances where the court may impose a sentence outside of a defendant's standard sentencing range to include when an eligible defendant petitions the court for a modification of sentence.
(In support) The state imposes egregiously long sentences that cause generational trauma. People are incarcerated under varying circumstances, sometimes for crimes that they committed because of trauma that impacted their decision making. Many incarcerated persons have developed insight and true remorse and are ready to make a positive impact on society. These people have little to no risk of recidivism. When we take fathers and mothers out of our communities, they are unable to teach their children a different way of life. This bill is not about letting out convicts. It is about letting out fathers, brothers, and other people who want to return to and immediately strengthen our communities.
There is no secret that people of color serve longer sentences. One of the biggest drivers in these longer sentences is the stacking of sentencing enhancements. This bill will help address racial disproportionality in prisons and ameliorate the harms of lengthy sentences being served predominantly by black community members by providing an opportunity for people who have made mistakes to receive a second review based on their rehabilitation. Providing informed justice for victims means imposing sentences that serve a bigger purpose than just the passage of time, especially in consideration of juveniles and the science of adolescent brain development. The Legislature often pushes solutions in the name of survivors, but survivors are not a monolith. Many survivors do not believe that prison is the answer. There are many incarcerated persons who have taken accountability for what they have done and have put in the work to change and improve themselves. This bill breaks down the binary between victims and defendants by recognizing that humans can simultaneously commit harm and be harmed themselves. The savings realized by this bill will go towards victims' services, which are currently underfunded.
One of the hardest parts of being a judge is predicting how a defendant will change over time. Absent a crystal ball, judges can only guess at what may change. As a result, courts often fail to address existing trauma that lays the groundwork for additional crime in the future. This bill allows judges to review cases after sentencing so that they can reserve the use of incarceration for situations where it serves a purpose. Creating the opportunity for a review will replace despair with hope and encourage people to engage with rehabilitative programs and treatment while incarcerated. Prosecutors already have authority to make a motion for resentencing, but prosecutors should not be the only ones that can identify whether a wrong was done in the past. Prosecutor-initiated resentencing hearings have largely failed as a viable pathway because many counties have not granted any such hearings.
This bill should have a delayed implementation date to provide a timeframe for developing programs, policies, and resources for public defenders. Effectively establishing a communication plan with people who are currently incarcerated would also be helpful. If this bill takes effect immediately, public defenders would have to triage cases by prioritizing clients based on factors like health and age.
(Opposed) This bill is an unnecessary expansion of power, especially considering the grounds for early release that already exist in state law and the fact that the state has the worst officer-to-civilian ratio in the country. There have been similar movements around the country to grant courts the authority to resentence persons, but another state's Supreme Court found this provision unconstitutional because it would confer the Governor's pardoning power to the judicial branch. The timeframe where a person becomes eligible to petition the court under this bill is also concerning because it eliminates mechanisms that distinguish crimes, which minimizes some of the most significant crimes. The Washington State Criminal Sentencing Task Force previously looked at a similar proposal that had a different lookback period and even that proposal lacked strong consensus.
Implementing this bill is not functionally or practically possible given the current caseload that courts are working through. All counties are facing a shortage of public defenders and prosecutors, and there would need to be additional support. Reviewing old cases will also impact the ability to move forward on cases involving current crimes. The savings that this bill allocates for this purpose is not enough to cover the expected costs.
(In support) Representative Tarra Simmons, prime sponsor; Andre Penalver; Larry Jefferson, Washington State Office of Public Defense; Kimonti Carter; Maureen McKee; Cindy Elsberry, Washington Defender Association; Vidal Vincent, Freedom Project; Na'Quel Walker; Heather Wehrwood, Washington State Coalition Against Domestic Violence; Kelly Olson; Sharonda Amamilo, Sentencing Guidelines Commission; and Antoine Coleman, AEJG/Free Minds Book Club and Writing Workshop.
Charles Longshore; Ralph Dunuan; Sarah Leon; Emily Gause; J. Wesley Saint Clair, Sentencing Guidelines Commission; Andrea Shotwell; Rory Andes; Kehaulani Walker, Families of the Incarcerated and People United Alliance; Laura Robinett; Travis Comeslast; Jacob Schmitt, Just Us Solutions, LLC; Ramona Womack; and Ramona Womack, Fatherhood The Foundation, LLC.