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Washington Supreme Court Says Commutations Implicate Due Process

By Mark Wilson

The Washington state Supreme Court held that due process protections attach to conditional commutation decisions and the liberty interest at stake “is indistinguishable from the interest in parole and probation.”

In 1997, Jayson Bush was convicted of assault and sentenced to 279 months in prison. On May 25, 2004, then-Governor Gary F. Locke granted Bush a conditional commutation, converting his remaining sentence to a 24-month community custody term. The commutation’s terms provided for its revocation if Bush incurred a Washington felony or gross misdemeanor.

In April 2006, Bush was charged with the gross misdemeanor offense of assaulting a child. He struck “his girlfriend’s 10-year-old son repeatedly with a wooden hockey stick and a leather belt, causing severe bruising.” On May 4, 2006, Governor Christine Gregoire notified Bush that his commutation would be revoked on May 30, 2006, unless the charge was dismissed by that date. The charge was not dismissed and the commutation was revoked. Bush was not afforded an opportunity to contest the revocation.

Bush filed a Personal Restraint Petition (PRP) in the Washington State Supreme Court, arguing that he was deprived of procedural and substantive due process when he “was denied an opportunity for a hearing (oral or written) before the governor revoked his commutation.”

The Court first determined that due process attaches to conditional commutation decision and the liberty interest at stake “is indistinguishable from the interest in parole and probation.” Accordingly, “Bush has a liberty interest in avoiding revocation of his conditional commutation.”

The Court noted that under In re PRP of Reismiller, 101 Wn.2n291, 297-98, 678 P2d 323 (1984), a PRP may not be granted on a constitutional claim unless the petition shows that the error substantially or actually prejudiced petitioner. Applying that standard to Bush’s procedural due process claim, the Court found “no indication that a hearing in compliance with due process mandates would have changed the conclusion that Bush committed a gross misdemeanor.” Therefore, Bush failed to show that the denial of a hearing actually or substantially prejudiced him, requiring dismissal under Reismiller.

The Court also rejected Bush’s substantive due process claim, finding “that the governor’s actions were not shockingly arbitrary in any sense…. Irrespective of any procedural defects in her decision-making process, there is every indication that she acted logically, in good faith, and pursuant to evidence that she believed to be reliable. The governor’s actions did not violate Bush’s substantive due process rights.”

See: In re PRP of Bush, 164 Wash.2d 697, 193 P.3d 103 (WaSCt 10/2/08).

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Related legal case

In re PRP of Bush