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Further Developments in WA Powell Case

This is a further update on developments in the Powell litigation. The Attorney General's office recently filed in the Ninth Circuit a document in which they claimed that the Indeterminate Sentence Review Board will treat superintendents' recommendations for parole under RCW 9.95.052 just as they would have treated a superintendent's certificate of meritorious conduct under former RCW 9.95.115 --that is, as making the person who gets such a recommendation immediately eligible for parole consideration by the Board.

In response, we have filed a motion stating that the Board's interpretation is news to us; that we doubt they have applied this interpretation of law to anyone; and that even if this were the interpretation they are using, it would not matter because the AG has told superintendents not to issue certificates under former .115 and there is strong evidence that DOC officials do not make parole recommendations under .052 until at or near the end of the minimum term set by the Board. The motion therefore asks that the case be sent back to Federal District Court Judge Thomas S. Zilly for two purposes: 1) to end the blocking of the availability of the kinds of recommendations the AG claims will make people eligible for parole consideration, and 2) for consideration of the issues on a class basis. This would allow all affected prisoners to show the court whether they have been given consideration for superintendents' recommendations (or certificates under the old law), and whether -- if they received favorable action from the superintendent -- they have been considered for parole.

I strongly suggest that everyone affected by SHB 1457 who has completed his or her 20 year mandatory term minus "good time" immediately ask in writing (for the second time if you have done it before) for a superintendent's recommendation for parole. If the State is really interpreting the law in the way they say, then anyone who gets such a recommendation should be immediately eligible for parole consideration. If the State is not doing what they say, then your request will help us to prove that.

Please make your request under both the old and new laws. That is, use language like the following: " I request that you both issue a certificate of meritorious conduct for me under former RCW 9.95.115, and that you recommend under RCW 9.95.052 or any other applicable law, regulation, rule or practice that the Indeterminate Sentence Review Board parole me. I ask that if you decline to consider a certificate of meritorious conduct under former 115 but do consider a parole recommendation under .052, that you apply the same standards or criteria in deciding whether to recommend parole under .052 that would have been applied in considering a certificate of meritorious conduct under former."

In your letter, you should also tell the superintendent how your incarceration has gone in terms of efforts at rehabilitation, noting, for example, your programming efforts, work, lack of infractions, etc. You should also include any recommendations from outside people or staff -- particularly unit staff and your counselor that you can gather.

If you can, please send me a copy of any request you make and a copy of any response you receive. You can send materials directly or through your attorney if you have one.

We expect more papers to be filed in the Ninth Circuit, and we will keep you informed of any action by the courts. In addition, if the Ninth Circuit does not rule soon and superintendents will not act on your new requests for consideration, we will take further action to try again to get the case moving.

[Editor 's Note: Over the past several years PLN has reported on Powell v. Ducharme, the case which challenges actions by the Washington state legislature which lengthened the terms of Indeterminate Sentence first degree murderers who have had the minimum terms extended by the parole board (ISRB) long past what the original minimum terms were. This case affects several hundred old guideline lifers in Washington state. Mr. Midgley can be contacted at: Evergreen Legal Services, 101 Yesler Way, Suite 300, Seattle, WA. 98104.]

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Related legal case

Powell v. Ducharme