Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Washington Lifers Litigation Update

By John Midgley

This is a further update on the "lifers" litigation. The current status of the Powell case is as follows: US District Court Judge Thomas Zilly has held that SHB 1457 is ex post facto as applied to Mr. Powell. The state has appealed to the US Court of Appeals for the Ninth Circuit. The states attorney has agreed with us to brief the case on an expedited schedule and to ask the Ninth Circuit to expedite the hearing. This means that we will be able to get the parties' briefs to the court more quickly than is usually the case. Of course, we cannot control how quickly the Ninth Circuit will hear or decide the case, but we have filed with the court an agreed motion asking for the expedited hearing and chances are good the court will respond favorably given that both parties have agreed.

In the meantime, as many of you know, prison superintendents have refused, on advice of the Attorney General's office, to even decide whether to grant any certificates of meritorious conduct. Therefore, the certification process is currently on hold.

We have decided, given the expedited schedule in the Ninth Circuit and the current posture of the case, not to challenge at this time the refusal to consider requests for superintendent certifications. We recognize that many people are anxiously awaiting the outcome and so we have moved this case as fast as we can given the pace of the legal system. Our strongest consideration is being in court in the best possible position to try to win the case, in the hope that many lifers will ultimately benefit. We believe that we are now in that position, and we are very reluctant to do anything that could distract from our strong position, such as engaging in further litigation about exactly what is required of Superintendents by Judge Zilly's order (both for Mr. Powell, and even more complicated, for other people).

If the Ninth Circuit does not grant expedited review or the case drags on for other reasons, we will reconsider whether to try to obtain more immediate relief. As always, we will try to keep interested people informed. Thank you to everyone who has responded to previous letters with information and encouragement.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Powell v. Ducharme