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WA Powell Update

This is to update you on recent developments in the Powell case on retroactive application of SHB 1457 to mandatory life term prisoners.

As you know, earlier this year the Ninth Circuit refused to rehear the case.  So, on April 10, 1995, we filed a petition for Writ of Certiorari in the United States Supreme Court.  On April 25, the Supreme  Court decided California Department of Corrections v. Morales,  which involved a California statute that allowed the parole board to see prisoners for reconsideration of parole less frequently than the board had to see them under the law at the time of the crime.  The Court emphasized, however, that the California law had no effect on first opportunity for parole.  Since SHB 1457 did affect the first opportunity for parole,  we believe Morales should not be dispositive and so the Supreme Court could still take Powell.  We have sent a short supplemental brief to the Supreme Court making the point that our claim is an issue left open by Morales.

The process from here is as follows.  The State has until May 10 to respond to the Petition.  We then can reply if we choose, and will do so quickly because the Court does not wait long for a reply before preparing to decide whether to take the case.  The Court can grant certiorari and take the case, remand the case to the Ninth Circuit  for  further  consideration,  or deny  certiorari.    If our petition for certiorari is denied, then the Ninth Circuit decision will stand.

We do not know when the Supreme Court will decide what is next.  The Court might decide before summer, or a decision might be delayed until fall.  (The Court does not generally decide during the Summer whether to take a case.)  When something happens, you will be informed.

Thanks to all who have sent information about their individual situations and attempts to get action under RCW 9.95.052.   I am sorry I have been unable to respond directly to most of you.  We are still reviewing the information to see who (if anyone) gets early parolability hearings  and under what  circumstances,  to determine if there are further legal issues that should be raised. Thank you for your patience, and we will be in touch as soon as possible about whether we think there are further legal issues to pursue. [Editor's Note:  The July 1995 issue of PLN will discuss Morales.]

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Related legal case

Powell v. Ducharme