The Sentencing Reform Act (SRA) provides the framework for sentencing of persons convicted of felony offenses, also referred to as "offenders" under the SRA. Under the SRA, persons are generally sentenced to determinate sentences, with some exceptions. Judges select a sentence within a sentence range provided in statute, which is calculated using both a statutory severity designation for the offense, or its "seriousness level," and a person's "offender score," which is based on the person's criminal history. In addition to the standard range, other factors affect the sentence, including enhancements, exceptional sentences, consecutive and concurrent sentences, and alternative sentences.
Initiative No. 593, approved by the voters in 1994 and often referred to as the "three strikes law," requires courts to impose life sentences for persons deemed to be persistent offenders. A "persistent offender" is an offender who is convicted of a "most serious offense" and who has at least two prior convictions for most serious offenses within a certain period of time. "Most serious offenses," also referred to as "strike offenses," include any class A felony, various class B felonies - which are primarily assault, sex, or kidnapping-related offenses - as well as any felony with a deadly weapon verdict, and any equivalent federal or out-of-state offense. In 2019 the state passed legislation removing Robbery in the second degree as a most serious offense, meaning the offense no longer qualifies as a strike offense; however, this change was prospective and did not affect persons serving life sentences under the three strikes law predicated on a Robbery in the second degree offense committed before 2019.
Under the SRA, persons are generally required to serve the specific sentence imposed by the court regardless of their rehabilitative efforts or improvements. However, certain exceptions allow a qualifying person to be released prior to completing the term of confinement ordered by the court, including, for example, pursuant to:
Pardons and Commutations.
The Washington Constitution provides the Governor with the authority to grant pardons, and statute provides the Governor with the authority to commute sentences and release persons in extraordinary cases. The Clemency and Pardons Board (CPB) receives petitions for commutation and pardons and makes recommendations on those petitions to the Governor. The Governor makes the final decision in all petitions heard by the CPB.
Composition of the CPB. The CPB consists of five members appointed by the Governor, subject to confirmation by the Senate. Members serve terms of four years or until their successors are appointed, and members do not receive compensation but are otherwise reimbursed for travel expenses. The CPB receive staff support from the Attorney General and conducts hearings on a quarterly basis, or as needed, to review petitions.
Jurisdiction of CPB. The CPB receives petitions for commutations and pardons from individuals, organizations, and the Department of Corrections (DOC) for review and then makes recommendations to the Governor. The CPB also receives petitions from individuals and organizations for the restoration of civil rights lost as a result of convictions for federal and out-of-state felony offenses.
The CPB generally reviews and hears petitions for pardon or commutation only in cases in which judicial remedies for the conviction have been concluded. Though not restricted by law from doing so, the CPB does not typically consider a petition until at least 10 years have passed from the date of conviction unless there are unique or emergency circumstances. Initiative No. 593 contains a provision recommending that the CPB and Governor not consider a petition for commutation from a person with a life sentence under the three strikes law until he or she is at least age 60 and has been judged to no longer be a threat to society.
Notification to Prosecutor and Relevant Parties. After receiving a petition, the CPB evaluates whether the petitioner's request merits a hearing. If the CPB determines the petition merits a hearing, the CPB must provide the relevant county prosecuting attorney with 30 days advance notice. The prosecuting attorney must make reasonable efforts to notify victims, survivors of victims, witnesses, and law enforcement agencies.
Hearing and Recommendation. At the hearing, the CPB hears testimony from a variety of witnesses, including the petitioner, an attorney for the petitioner, the prosecuting attorney, and family members of the victim and the offender. When determining whether to recommend a petitioner be pardoned or have their sentence commuted, the CPB focuses on the existence or non-existence of extraordinary circumstances. A petitioner must demonstrate why his or her circumstances are extraordinary and warrant the exercise of the Governor's discretionary pardon or commutation power. 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 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.
Extraordinary Medical Placement.
The Secretary of the DOC may authorize an extraordinary medical placement and transfer a person to an alternative care setting outside of the DOC if:
Persons released for an extraordinary medical placement must be placed on electronic monitoring unless the monitoring equipment interferes with the function of medical equipment or results in the loss of funding for the person's medical care, in which case, different monitoring equipment may be used.
The DOC Secretary may revoke an extraordinary medical placement at any time.
State v. Blake Decision.
Under the Uniform Controlled Substances Act, possession of a controlled substance is a strict liability offense, meaning that no mens rea (guilty state of mind) element must be proven in order to convict of a person of the offense. In State v. Blake (Blake) in 2021, the Washington Supreme Court held that the strict liability nature of the offense violates the due process clauses of the state and federal constitutions and exceeds the state's police power. The Court invalidated the portion of the statute creating the simple possession crime.
Clemency and Pardons Board.
Composition. The CPB is expanded from five to 10 members appointed by the Governor, who are subject to confirmation by the Senate. The CPB membership must consist of:
Member terms are expanded from four to five years. Members receive a salary unless waived by the member. Members are not civilly liable for decisions made while performing their duties. The CPB must additionally be funded for adequate staff to implement and maintain functional operations.
Jurisdiction. The jurisdiction of the CPB is modified. The CPB must receive petitions from individuals, organizations, and the DOC and make recommendations to the Governor for: commutation of sentences and pardoning of incarcerated individuals in extraordinary cases; and conditional commutation of sentences in accordance with additional requirements.
The recommendations in Initiative No. 593 are modified and expanded to encompass all life sentences imposed under the SRA as well as the provisions for Aggravated Murder in the first degree. It is recommended that the CPB not consider an incarcerated individual serving a life sentence for release until the individual has been judged to no longer be a threat to society and has served at least 20 years in total confinement or 25 years in total confinement if the person is serving a sentence for Aggravated Murder. It is further recommended that release take the form of a conditional commutation that includes a period of law-abiding behavior in the community.
Notification to Prosecutor and Relevant Parties. The timeframe for the CPB to notify the county prosecuting attorney of a hearing is extended to 90 days in advance of the scheduled hearing. The requirements for the county prosecuting attorney to notify relevant parties is modified. To facilitate victim and survivor of victim involvement, the county prosecuting attorney must make reasonable efforts to ensure that any victim impact statements and known contact information for victims of record and survivors of victims are forwarded as part of the judgment and sentence. In the event that no known victim or survivor of the victim is known or identified for the panel, the county prosecuting attorney must be given reasonable time to certify to the panel that it has exhausted all reasonable efforts in locating and providing contact information to the panel.
Conditional Commutations. The CPB may deny a petition for commutation without a hearing because the person does not meet the initial criteria for filing a petition, or the CPB may conduct a hearing to consider additional information, and then deny the petition or recommend commutation to the Governor.
In making its decision, the CPB must consider, if available, certain factors and information. This includes: public safety, criminal history, acceptance of responsibility and remorse, evidence of rehabilitation, input from victims, law enforcement agencies, and community members, and the person's release plan, which must be independently reviewed by the DOC. The CPB's decision shall explain the basis for the decision. If the CPB grants commutation, it may place conditions on the commutation, such as partial confinement, drug and alcohol testing, restrictions on travel and employment, or other community protection conditions. A person whose petition for conditional commutation is denied may file a new petition three years after denial or at a date set by the CPB.
A person granted conditional commutation may be required to serve a term of community custody up to the length of the term of incarceration imposed by the court, in which case the person will be subject to DOC supervision for compliance with conditions established by the CPB and the DOC.
A person who participates in the graduated reentry program for home detention may serve the final 18 months of their term in partial confinement as home detention, after serving at least four months in a DOC facility.
The court may order the release of a person whose conviction was vacated by the 2021 Blake decision when that person has been confined longer than the newly calculated standard range.
Extraordinary Medical Placement.
A person with a chronic medical condition may be granted extraordinary medical placement, subject to other current requirements.
When a person is released on extraordinary medical placement, electronic monitoring may be waived if the monitoring is detrimental to the person's health or prevents the person from being independently mobile.
Terminology.
References to "offender" are replace with "incarcerated individual" or "individual" in certain statutes relating to sentencing and commutations.