The Legislative Budge Committee (LBC) has issued its preliminary report on the Indeterminate Sentence Review Board (ISRB). The December 14, 1990, report was an audit that examined the operations of the Board in the context of the dual sentencing system that now exsists in the state of Washington. The audit, rumored to have been initiated by victim rights groups, focused on how well the Board accomplishes its goal of protecting the public.
The passage of the Sentencing Reform Act (SRA) of 1982 created a dual sentencing system in this state. One system is indeterminate and is based upon the rehabilitative ideal. The newer system is determinate and is based primarily on the principle of punishment. RCW 9.95.100 establishes rehabilitation as the criterion for release of pre-SRA prisoners, whereas under the SRA sentence lengths are maximums and there is no end-of-term review regarding a prisoner's rehabilitation. The conflict between these two sentencing systems has resulted in a situation in which two prisoners serving time in the same prison for identical offenses, and both having access to the exact same programs, only one is pre-SRA and is being rehabilitated while the other is post-SRA and is being punished. The one being rehabilitated cannot be released until the Board certifies that the process is complete, an additional hoop that generally results in significantly longer terms for pre-SRA offenders.
There are some 1,900 pre-SRA prisoners currently serving time in Washington's prison system, out of a statewide prison population of approximately 7,500, and there are about 2,000 pre-SRA parolees still under the jurisdiction of the Board. A conservative estimate, according to the LBC Report, is that in 1998 there will be 1,400 pre-SRA offenders behind bars, just 500 less than the current population.
When the SRA was initially passed into law it contained a provision that would have abolished the Board, but subsequent amendments to the law (RCW 9.95.009) have extended the Board's life until 1998. The legislature's objective was to phase out the Board, its membership to be reduced commensurate with the agency's remaining workload. What has happened instead is the development of a situation in which the more pre-SRA offenders that are kept begin bars, the longer Board members and their retainers will have their jobs. It has thus come to pass that the Office of Financial Management's (OFM) forecast of the size of the indeterminate population in fiscal year 1989, for example, was 55 percent above the OFM's forecast, and in fiscal year 1990 the actual indeterminate population was 68 percent above the forecast. Rather than phase itself out, as intended by lawmakers, the Board has actually added another member and their request for yet another is in the process of being approved.
According to the LBC Report, if all sentences were made determinate, as originally intended by the state legislature, not only would we have a single and more fair sentencing system, but a lot of money would be saved as well. The Report states that "the legislature could consider once again whether to eliminate the ISRB entirely..." The findings of the LBC include a statement about the money that would be saved by eliminating the Board: "If the ISRB and parole function within the Department of Corrections were to be eliminated entirely, the state would save approximately $3 million in the first year." The report goes on to say that the above figure "does not include the savings that would accrue from releasing from prison those people who have served terms beyond the [SRA] presumptive range. If this number is only 500 prisoners, the savings could be as high as $11 million per year." The LBC's $11 million savings figure calculates the annual cost per prisoner at only $21,000, significantly less than the actual yearly expense, and does not include amortized capital costs or other hidden expenditures.
In addition to the fundamental unfairness of having two disparate sentencing systems and the extra expense in maintaining a bloated parole bureaucracy, the LBC Report expressed some concern over the Board's problems with it's risk assessment mechanism. Specifically, "the possibility, even the certainty, of making 'false positive' findings." The two part question posed by the LBC was (a) whether the Board's assessment of an individual's risk to reoffend adequately protects that person's liberty interests, and (b) whether the Board's exercise of its discretion provides a greater measure of public safety protection than currently exists under the SRA. The LBC's answer was high qualified but negative in both respects.
"In the course of our review, the LBC Report found, "we have identified several problem areas and concerns which lead us to question whether the board presently has the ability to make consistently well-informed, timely and appropriate decisions" (Report, p. 11). "In our review of case studies and through out participation at board hearings," the Report continues, "we observed several instances of prisoners deemed not parolable for the reason that they had not yet participated in a class or program that might benefit them. Of course participation in any such (often not available) programs will not necessarily result in a favorable decision concerning parolability, and, needless to say, SRA offenders are not confronted with this dilemma.
The LBC's audit of the parole board concludes with a series of recommendations, including a comprehensive review of the sentencing system to be completed in 1991. The Report asks that the review process "[e]valute alternatives and make recommendations concerning the scope of board authority to make policy changes that affect, how, when and why release decisions are made" for pre-SRA offenders. Yet they do not go on to call for the repeal of RCW 9.95.100 (the statute at the core of this sentencing contradiction) or the outright abolishment of the Board. Instead, the LBC makes vague and essentially meaningless requests for developing a staffing plan for the parole board, and for additional reviews of areas like program availability, the adequacy of maximum terms, etc. Just too little, too late.
The outlook for the future continues to look bleak for pre-SRA offenders. In February of 1990, state law makers passed what they call the Community Protection Act, a draconian piece of legislation that is resulting in paroles being revoked due to technical violations and prisoners having their pre-SRA terms extended. The new law mandates that "the indeterminate sentence review board shall give public safety considerations the highest priority when making all discretionary decisions on the remaining indeterminate population..." Every gang of thugs calling themselves a government, from Robespierre to Hitler, invoke the hallowed name of "public safety" to mask the various forms of their injustice. Pre-SRA offenders can expect to be hearing the term more and more in the coming years unless active steps are taken to resist this growing tide of repression.
These steps might include work aimed at getting some of the citizens of this state involved in the process of trying to abolish the Board. There is a measure of support for such undertaking. The ISRB Transfer Study Committee, Report to the Legislature, submitted to lawmakers in January 1989, looked at alternatives to the existing dual sentencing scheme. One of the Committee's proposals was called the "determinate model," a plan that would have transferred all terms of confinement considerations over to the Superior Court. Under this model the remaining 350 first degree murder offenders would have their sentences converted to SRA sentences, and all other pre-SRA offenders would have had their minimum terms converted to maximum terms (i.e., your SRA minimum is your maximum). This determinate model was judged to be by far the least expensive alternative. In addition to the cost savings, under the determinate model all release decisions made by judges would have been covered by judicial immunity, thus protecting the state from tort liability in the event of mistakes. The implementation of this model would have resulted in the prompt termination of the parole board. But the legislature refused to bite the bullet. The question is whether political realities are adequate for us to help them do so now, and we can't know that until we try.
The newly formed Prison/Community Alliance (PCA and the editors of the Prisoners' Legal News are in the process of drafting sample legislation that will abolish the Board and turn its function over to the courts.) We hope to launch a citizen's initiative campaign to get the proposed law on the statewide ballot in 1992. Soon we will have sample copies of the bill to share with you, for your comments and input. Of course, it will take a lot of building to transform the PCA into a vehicle capable of performing at the levels required to get this bill on the ballot. The participation of family members is essential if this project is to succeed. Have your loved ones call Carrie at (206) 859-4937 for more information about the PCA (phone evenings or weekends, no collect calls, please). Or write to Prison/Community Alliance, P.O. Box 276, Kent, WA 98035, with offers of help. The PLN also needs your ongoing financial support so we can continue to keep you informed and in touch with each other.
If we do work toward these goals it is likely that we can expect more official studies like the LBC Report and outrages by the board that can only make our task an increasingly easier one.
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