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.
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 Clemency and Pardons Board. 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 the Clemency and Pardons Board. 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 that is 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.
The Clemency and Pardons Board.
Composition. The Clemency and Pardons Board (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 Department of Corrections (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, 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 replaced with "incarcerated individual" or "individual" in certain statutes relating to sentencing and commutations.
The substitute bill identifies representatives for five of the 10 Clemency and Pardons Board (CPB) members appointed by the Governor, but removes the requirement that the remaining five representatives include an agency representing crime victims, a statewide organization representing criminal defense lawyers, a law enforcement professional, a statewide organization representing prosecuting attorneys, and a behavioral health professional.
The substitute bill removes the requirement that the CPB consider statements from Department of Corrections staff, program supervisors, or volunteer facilitators when making a decision on a commutation petition.
(In support) Mass incarceration has not made communities safer. There must be a mechanism that allows incarcerated individuals to show that they are no longer a threat to society and can be an asset, particularly when Washington's incarceration system imposes disproportionate sentences and fails to include a parole board. Crimes that used to have 10 year sentences now have lengths of 50-80 years. This destroys families. Many incarcerated individuals use counseling to heal trauma and better themselves. Those individuals deserve hope and an opportunity for a second chance. Knowledge of the opportunity for release motivates incarcerated people and increases accountability, which reduces fights and keeps staff safe. Some individuals who have received commutations have gone on to work with troubled youth because of their experience and perspective.
At the time of sentencing, people should know that clemency is an option, unless they have a plea agreement that prohibits the request. This informs the victims that earned release or clemency might be an option. The clemency process also reassures victims that the individual has changed and the crime will not happen again. The bill does not allow individuals out of prison, it just provides an opportunity to present a case to the Clemency and Pardons Board (CPB). The CPB then makes a recommendation on an individual's petition and the Governor makes the final decision. Because of the political arena, there is a built-in safeguard on serious offenses, because no governor would allow someone who committed a serious offense to be released in a short amount of time. The bill does not limit the Governor's power, but it does have guidelines, including the recommendation that a person serving a life sentence serve at least 20 years in prison. For aggravated murder, the recommended length of time is 25 years. It costs too much to incarcerate individuals with chronic health conditions and it is inhumane.
The number of members of the CPB is expanded to 10. Including diversity, victim's rights, prosecutors, judges, behavioral health specialists, tribal, and faith organizations with experience in reentry ensures a diverse group of individuals with experience in determining whether a person can be an asset to society and also provides a racial equity lens. Members of the CPB should be paid to provide broader representation, because not everyone can afford to do this work for free.
(Opposed) The concept of a second chance and redemption is valuable, but conditional commutation is similar to a parole board, which is a significant departure from the determinate system, which was adopted to address inadequacies and disproportionalities. The current system already allows virtually everyone incarcerated to get a one-third reduction in their sentence for earned early release. The Indeterminate Sentence Review Board already functions as a partial parole board.
The Legislature could use the money that this bill would cost for offender change programs and diversity and equity programs. It would be better spent on gang intervention and youth programs to reduce crime and intervene to prevent convictions and incarceration. It is an error to remove language recommending limiting release to people over age 60 because science shows that people age out of criminal behavior. Physical incapacity should be limited to age or medical condition, not a medical placement. The option to waive electronic monitoring is troubling.
It is not community justice to release someone just because of the CPB recommendation, especially because victims in the communities also suffer from crimes. Victims in the community should be given notice to minimize trauma and allow them to prepare for a return to the community 20 years after the crime because that can be very traumatic.
While people who have changed should be given a second chance, expanding the membership of the CPB to 10 people is cumbersome and antithetical to the purpose. A five to seven member Board should be considered. The CPB should have been asked to provide their input. The increased size will create caucuses and the salary will encourage the CPB to review petitions instead of focus on the common good. The proposed diversity is good, but some of the members are not qualified to make decisions prior to reentry. A retired superior court judge should be a member. The political arena does not provide an adequate safeguard. For example, Governor Inslee did not consider legislative input before suspending the death penalty.
The second substitute bill specifies additional requirements for the Clemency and Pardons Board (CPB) members that include: (1) annual training required on race equity; (2) appointments made for two terms of five years rather than until a member's successor is appointed; (3) existing members may serve the remainder of their current terms; (4) compensation provided to members up to $100 per day, rather than a salary; (5) compensation provided to members for required trainings and hearing preparation; and (6) a report to the Governor and Legislature when requested by the Governor.
The second substitute bill also adds provisions stating that: (1) staffing to implement and maintain the CPB's functional operations will be funded, and the Attorney General's Office will provide legal counsel to the CPB; and (2) petitions to the CPB will be heard by a panel of five CPB members, selected by a random drawing conducted by CPB staff. During a hearing, the CPB will consider statements from victims, survivors, law enforcement, or agencies.
Current law is restored, requiring the prosecuting attorney to make reasonable efforts to notify victims, survivors, witnesses, law enforcement agencies, and agencies regarding the CPB hearing.
The second substitute bill adds a representative from an agency representing crime victims to the 10 CPB members appointed by the Governor, and the Governor is required to appoint members that represent racial, ethnic, geographic, gender, sexual identity, and age diversity. The Governor's authority for the commutation process allows the Governor, not the CPB, to impose conditions on an individual whose sentence is commuted and subsequently monitored by the Department of Corrections. The Governor may commute an individual's sentence in two circumstances: extraordinary circumstances or pursuant to the CPB's recommendation after a hearing.
The second substitute bill adds a null and void clause, making the bill null and void if specific funding for the purpose of the bill, referencing the bill by bill or chapter number, is not provided by June 30, 2023 in the omnibus appropriations act.
(In support) This bill will double the membership of the CPB, but they will still be working in teams of five members to review and make recommendations. The increase in board members will assist in taking care of the existing backlog of cases. The advantage is the governor will have the opportunity to release individuals that are worthy of clemency which will produce an approximate $40,000 savings to the state. This means these released individuals will be out in the community and working and families will be reunited. This is a benefit to the State of Washington.
Many of the individuals serving long periods of time in prison have completely transformed and being in prison no longer serves the interest of justice or the interest of the community. Locking up humans and increasing mass incarceration is more expensive than giving deserving humans a chance for review. House Bill 1189 will reduce recidivism and will save state money. This bill is good policy and makes good fiscal sense.
(Opposed) Back in 1981, the Legislature intentionally moved away from the parole system. One of the reasons was due to the sentence disparity between individuals that committed the same crime but were treated substantially different. This bill could restore and create those same problems today. Many provisions of this bill not only undermines a judge's sentence but allows the release of individuals in ordinary circumstances.
Under current law, there has to be some type of extraordinary circumstances in order for a person to be released from custody. This bill implies that those serving life terms and those convicted of aggravated murder would be able to petition the board for release without having to show any extraordinary circumstance to substantiate their release.
This bill is a solution looking for a problem. The board is currently staffed with five volunteer members from the community, and it has been working well. It does not need to be expanded.