Determinate Sentencing.  In 1981, the Legislature passed the Sentencing Reform Act (SRA), which established determinate sentencing for felony offenders.  The SRA eliminated indeterminate sentences and parole in Washington, with some exceptions.  Instead, the SRA determines a specific sentence within the statutory maximum.  Judges select an offender's sentence within a standard sentence range provided in statute, which is calculated based on the statutorily designated seriousness level for the offense and the offender's criminal history score based on the offender's past convictions.

In addition to the standard range, other factors may affect the sentence, including sentencing enhancements, exceptional sentences, consecutive/concurrent sentences, whether the offender qualifies as a persistent offender under the three-strikes or two-strikes laws, and alternative sentences.

Review of Sentences.  There are some exceptions to determinate sentencing where certain offenders are eligible for review after serving a certain number of years.  The Legislature has given authority to the Indeterminate Sentence Review Board (ISRB) to review and release inmates if the statutory criteria is met for the following three populations:

• parole offenders convicted before the enactment of the SRA, July 1, 1984;
• Community Custody Board (CCB):  sex offenders who committed their offenses after August 31, 2001, and who have determinate-plus sentences; and
• Juvenile Board Cases (JUVBRD) offenders who committed crimes under age 18 and were sentenced for terms longer than 20 years.

When determining whether to release a CCB or JUVBRD offender, the ISRB must determine if a preponderance of evidence suggests the offender is more likely than not to commit a new crime.  If the ISRB decides to release the offender on supervision, the offender must comply with all release conditions imposed by the court when the person was sentenced as well as any conditions imposed by the ISRB.  This person must remain on supervision for three years or the remaining term of the person's sentence.  If the person fails to follow conditions of supervision, the ISRB can revoke the release or impose new release conditions on the offender.

Clemency and Pardons Board.  The Governor has the constitutional and statutory authority to issue pardons and commute sentences.  A pardon is generally a government decision to allow a person to be absolved of guilt for a crime and restores the person's civil rights.  A commutation of sentence is a reduction in sentence, usually to time served.

The Clemency and Pardons Board (CPB) was established to make recommendations to the Governor concerning petitions for clemency.  The CPB consists of five members appointed by the Governor and subject to confirmation by the Senate.  The CPB holds regular quarterly meetings, but can call special meetings at other times when appropriate. CPB members are not entitled to compensation.

The CPB is charged with receiving petitions from individuals, organizations, and the Department of Corrections (DOC) for the review and reduction of sentences and pardoning of offenders in extraordinary cases.  After receiving a petition, the CPB evaluates whether the petitioner's request merits a hearing.  If a hearing is determined to be appropriate, the CPB schedules the hearing, at which time it may take testimony from a variety of witnesses, including the petitioner, an attorney for the offender, the prosecuting attorney, and family members of the victim and the offender.

After the hearing, the CPB votes on a recommendation, which is then forwarded to the Governor.  The Governor is under no legal obligation to follow the recommendation.  If the Governor grants a pardon, the person's conviction will be removed from the petitioner's criminal history available to the public.  The Governor is free to place conditions on the pardon, such as requiring a conviction free record for a specified period of time.  A commutation results in a reduction of criminal penalties and is often conditional.

When determining whether to recommend a person be pardoned or have their sentence commuted, the CPB focuses on the existence or non-existence of extraordinary circumstances.  A petitioner must demonstrate why their circumstances are extraordinary and warrant the exercise of the Governor's discretionary pardon or commutation power.  Extraordinary circumstances are not defined.  Examples of factors the CPB has considered include:

• the seriousness of the offense;
• the impact on the victims;
• the offender's criminal history and other relevant background;
• acceptance of responsibility, remorse, and atonement;
• personal development and positive life changes since the offense occurred;
• benefit or risk to the community;
• position of prosecuting attorney and sentencing judge, or both;
• whether the individual has complied with all obligations imposed by the court; and
• the amount of time elapsed since the offense occurred.

A persistent offender is an offender who has committed specified offenses listed as two-strike or three-strike offenses and as a result, is sentenced to life without parole.  In 2019, the Legislature removed robbery in the second degree as a strike offense in sentencing an offender as a persistent offender.  At that time, the Legislature declined to require re-sentencing of individuals serving a life sentence as a result of a conviction for robbery 2.  In 2019, there were approximately 64 individuals serving a life sentence for which a conviction for robbery 2 was one of the strike offenses.

Clemency and Pardons Board.  The membership of the CPB is expanded from five to ten members.  Members appointed by the Governor shall consist of:

• a representative of an organization representing communities of color or racial equity;
• a representative of an agency representing crime victims;
• a representative of an association, community organization, or advocacy group with experience or interest in the formerly incarcerated with successful community reentry;
• a representative of a faith based organization with interest in community reentry;
• a representative of a statewide organization representing criminal defense lawyers;
• a law enforcement professional;
• a representative of a statewide organization representing prosecuting attorneys;
• a person with experience and interest in tribal affairs;
• a behavioral health professional; and
• a retired superior court judge.

 
Members are appointed to serve a term of five years and must receive a salary unless waived by the member.  The CPB must additionally be funded for adequate staff to implement and maintain functional operations.

Eligibility to Petition.  In addition to extraordinary placement petitions, the CPB is charged with receiving petitions for the conditional commutation of sentences.  A person is eligible to petition for conditional commutation if the person:

• is not subject to jurisdiction of the ISRB;
• has served at least 20 consecutive years of total confinement;
• consents to a review of all of their medical, mental health, and department files by the CPB; and
• does not have any current appeals pending or collateral attacks pending.

A person serving life without parole is eligible to petition for conditional commutation so long as the person meets the criteria.

Five years prior to the date the person may petition, DOC must notify the person of their right to petition, conduct an assessment to identify programming and services that will prepare the person for a return to the community, and make programming available to the extent possible.

Conditional Commutation.  When the CPB receives a petition for conditional commutation, the board may deny any petition that does not meet initial criteria or conduct a hearing to consider additional information.  In making its determination, the CPB must consider the following factors:

• public safety;
• the person's criminal history;
• the nature and circumstances of the offenses committed, including current and past offenses;
• the person's social and medical history;
• evidence of the person's remorse, atonement, and self-reflection in relation to the offense committed;
• evidence of the person's rehabilitation;
• statements of correctional staff, program supervisors, and volunteer facilitators;
• input from the victims of the crime;
• input from police and prosecutors in the jurisdiction where the crime was committed;
• input from persons in the community pledging their support of the person if released;
• the available resources in the community to assist the person with transition;
• a risk assessment and psychological evaluation provided by DOC;
• the sentencing judge's analysis in imposing an exceptional sentence; and
• any other relevant factors.

The CPB must recommend the person be released with affirmative conditions, unless the panel determines by a preponderance of the evidence that it is more likely than not the person will commit new criminal law violations if released.  Affirmative conditions may include a term of community custody, partial confinement, restrictions on travel, no contact orders, restrictions on employment, or any other restriction the CPB believes is appropriate.  The board must specify reasons for its decision, regardless of whether it recommends commutation or denies the petition.  A person whose petition is denied may file a new petition after three years or at an earlier date set by the CPB.

In considering petitions for conditional commutation, the CPB must give priority consideration to individuals who have a current or past conviction for robbery in the second degree that was used as a basis for a finding that the individual was a persistent offender.

A recommendation for conditional commutation must be forwarded to the Governor.  The Governor is under no legal obligation to follow the recommendation and may also place conditions on the commutation.  Any person released to conditional commutation must be monitored by DOC.  DOC may sanction persons who violate conditions consistent with those who violate community custody.  The Governor may revoke an order granting conditional commutation at any time.