WA has no parole. Should prosecutors control who gets a second chance?

Charles Longshore remembers the hope brought by a law giving prosecutors authority to petition judges for a new sentence when they believe the original punishment “no longer advances the interests of justice.”

People ordered to spend decades behind bars suddenly felt their sentences — and who they had become in prison — could get a new look. Longshore, who earned a paralegal certificate while serving a nearly 36-year sentence for two 2012 murders, helped as many as 30 of his peers write to prosecutors seeking consideration under the 2020 law stemming from Senate Bill 6164.

Then, the denials streamed in.

“Some cases I expected it, but in others, I was shocked,” said Longshore, who has not yet made such a request for himself. One person he helped hadn’t had a prison infraction in almost 30 years, he said. Another is dying of cancer.

Of Washington’s 39 elected county prosecutors, only about a third had sought resentencing under the 2020 law as of August, according to preliminary data gathered through public disclosure requests by a lawyer with the nonprofit Washington Defender Association. Just three counties — King, Pierce and Clark — had five or more cases.

While that data is incomplete, an informal survey by Pierce County Prosecutor Mary Robnett’s office last November also suggests most of her peers have used the law sparingly or not at all.

Several prosecutors said sparingly is exactly how the law should be used, given the trauma that reopening cases would likely inflict on victims and their families, the seriousness of many charges involved and Washington’s firm sentencing guidelines.

But others say a broad opportunity for resentencing is needed given the state’s ending of parole in the early 1980s, its effect magnified by a tough-on-crime era that dramatically increased sentence lengths. About half of the roughly 13,000 people incarcerated in Washington prisons, as of December, are serving a sentence of more than 10 years.

With the limitations of SB 6164 apparent, some are questioning whether prosecutors should serve as gatekeepers. “I think it’s unfair that they’re the only players in the system who can say a person’s incarceration no longer serves the interest of justice,” said state Rep. Tarra Simmons.

The Bremerton Democrat sponsored legislation in the just-concluded session that would have allowed resentencing petitions to go directly to judges.

Longshore and other incarcerated people helped formulate the proposal, as did a group of judges welcoming a chance to revisit cases.

“No judges have a crystal ball,” said King County Superior Court Judge Maureen McKee, stressing that she was speaking for herself. “We do our very best with the information we’re given. But what we don’t know is if or how an individual might change over the years.”

McKee said the judges involved were motivated in part by a 2020 state Supreme Court open letter calling on the legal community to address racial disproportionality in the criminal legal system. People of color make up 45% of Washington’s prison population, roughly 28% more than in the state as a whole.

Simmons’ House Bill 2001 passed the House but failed to get a committee hearing in the Senate, killing the so-called Judicial Discretion Act for this year.

Among the objections were prosecutors’ fear of an influx of cases at a time when they’re short-staffed and face other resentencing mandates, most notably from the state Supreme Court’s 2021 Blake decision invalidating hundreds of thousands of drug convictions.

“The opening of the floodgates would be catastrophic,” said Snohomish County Prosecutor Jason Cummings. “It would break the system.”

Such proposals also face political headwinds. The racial reckoning that followed George Floyd’s 2020 killing by Minneapolis police sparked renewed attention to reforms to the criminal legal system. But a crime spike coinciding with the COVID-19 pandemic changed the atmosphere.

“It’s a very difficult political environment right now to engage in sentencing reform,” said Rep. Roger Goodman, a Kirkland Democrat who heads the House committee dealing with public safety.

Even one of the most pressing sentencing questions before legislators is going unresolved for the fourth year in a row. Lawmakers couldn’t agree on a new sentence structure for 18- to 20-year-olds convicted of aggravated murder. The state Supreme Court ruled in 2021 that the current mandatory sentence of life without parole is unconstitutional due to the developing brains of young adults.

Simmons and others say they intend to continue pushing second-chance legislation and, in the meantime, engage with those who have qualms. A key pertinent question: What exactly have, and haven’t, prosecutors done with the authority they’ve been granted?

Rare window into accelerated punishments

Joshua Frost and two others robbed and burglarized four King County businesses and a home over an 11-day period in 2003. The three men used guns and, during the robbery of one business, one of Frost’s cohorts shot an employee in the hand.

Frost was convicted of robbery, burglary and assault, and if that had been it, he would have been sentenced to nearly 11 years. But he also received firearm enhancements for each of 10 counts. His new total: roughly 55 years in prison.

The King County prosecutor’s office asked a court to resentence Frost in 2021, one of the office’s eight 6164 petitions so far. (The office originally intended to file such petitions for dozens more people sentenced to life without parole under the state’s three-strikes law, but it pursued another avenue when lawmakers retroactively dropped second-degree robbery as a strike.)

In their petition for Frost, prosecutors pointed not only to the staggering effect of gun enhancements but also to the sentences of his co-defendants, who, unlike Frost, pleaded guilty rather than opting for a trial. One got 23 years, another 20 — both less than half of what the court meted out to Frost.

He ultimately got a new sentence of just under 19 years.

Other 6164 cases around the state show similar themes, and they offer a rare window into how charging and sentencing practices in recent decades have accelerated punishments.

In Benton County, a court in 2009 sentenced a man to more than 30 years after he was convicted at trial of charges related to a stabbing with a broken beer bottle. The man, ultimately resentenced to roughly 13 years, was an accomplice; the actual assailant got just over seven years in a plea deal.

In Clark County, a man found in 2011 with heroin, meth and two guns in his home was sentenced to 18 years. A prosecutor’s office resentencing petition noted he was “essentially punished three times” for the same crime, as he was charged not only with possessing drugs with intent to deliver but also maintaining a drug dwelling — and on top of that, multiple enhancements for gun and drug offenses near a school zone or bus stop.

In its petition, which ultimately resulted in a new 12-year sentence, the prosecutor’s office said it wouldn’t today seek stacking gun enhancements and only rarely uses school-related ones. “When you think about it, there are school bus stops everywhere,” Chief Deputy Prosecutor Rachael Rogers said in an interview.

Prosecutors’ standards have changed over the past 25 years, giving more weight to rehabilitative possibilities, she added — “as opposed to just getting the highest prison sentence we can get.”

Rogers estimates her office has made between eight and 10 resentencing requests under 6164, more than most. But like many of its counterparts around the state, the office treads warily when it comes to violent offenses. Murders and sex offenses are pretty much off the table.

“Most of the time, the facts are so egregious,” Rogers said.

Yet, since many people serving long sentences have committed violent crimes, any broad resentencing opportunity would likely include them.

The Judicial Discretion Act, as written for this past legislative session, would allow people to petition for resentencing if they’ve served at least 10 years for crimes committed as adults or seven years for those committed as juveniles. Amendments excluded people sentenced for aggravated murder or under the three-strikes law.

Part of Simmons’ bill set aside money for victim services such as counseling. But some still viewed the proposed legislation as unfavorable to victims.

Pierce County Superior Court Judge André Peñalver sympathizes with that view. “It certainly is a burden on victims to have to come before the court and relive their trauma from what might be the worst day of their life,” said Peñalver, a former federal prosecutor stressing, like McKee, that he was speaking for himself.

“But I think that’s a concern to weigh against the need to have another chance to look at somebody who’s clearly been rehabilitated,” he continued, especially “when we’re talking about sometimes decades of someone’s life behind bars.”

Judges face difficult decisions when sentencing, he said. Even with state guidelines, they sometimes have a wide range at their disposal. A fear often lodges in their minds: Will the person whose fate they hold in their hands — someone often young and unformed — re-offend if let out of prison too soon?

A second look wouldn’t totally answer that question, since the person would still be incarcerated, but their prison record would tell judges a lot. “So they don’t have to worry too much that they might not have gotten it right the first time,” Peñalver said.

As an example of rehabilitation, some point to Kimonti Carter, who testified in support of the Judicial Discretion Act.

At 18, Carter fired upon a car of Tacoma young people he mistook for rival gang members and killed a college student named Corey Pittman. Initially sentenced to life without parole for aggravated murder, Carter was resentenced after the state Supreme Court invalidated such mandatory sentences for young adults. He ultimately spent 25 years in prison.

As the resentencing judge observed, Carter made a “radical change” in prison, where he founded a widely praised education program in which incarcerated men created curriculum and taught each other.

Yet, indicative of the controversy resentencing provokes, the Pierce County prosecutor’s office has appealed the new sentence, arguing the importance of clear, consistently applied sentencing laws.

Fair sentencing is not just about rehabilitation, said Thurston County Prosecutor Jon Tunheim. It’s about proportional punishment for harms committed — “retribution, quite frankly,” he said.

Willing but not able

Tunheim hasn’t acted upon 6164 in a single case.

That’s not because he isn’t willing to use it, he said. The Thurston County prosecutor became convinced that resentencing can be warranted because of yet another case involving gun enhancements, which resulted in a sentence of more than 37 years for a nonviolent theft of five rifles.

A state Supreme Court ruling allowing for enhancement sentences to be served concurrently paved the way for a resentencing to 12 years, with Tunheim’s approval.

As he sees it, the problem in bringing more resentencing cases is he lacks enough staff to review files, and several requests “are kind of sitting there waiting to be looked at.” If a trial was involved, a case file might have hundreds of pages. And then there are sometimes lengthy prison records to parse.

Cummings, the Snohomish County prosecutor, may want to meet someone under consideration personally, and he recently drove to a prison in Aberdeen to do just that. He also wants to hear from victims and their families, and he said the agency’s victim advocates are already overloaded.

Some prosecutors’ offices have received hundreds of 6164 requests. “Now imagine what would happen if basically every defendant who hits 10 years petitions the court,” Tunheim said.

A prosecutor might have to respond in a certain amount of time — Simmons’ bill calls for hearings granted by the court to be held within 120 days — whereas now prosecutors can take as much time as they want to consider 6164 requests.

The state Office of Public Defense has drawn up what it believes is a solution: a triage system. It envisions around 130 people would be eligible the first year, plus an unknown number suffering from a serious medical condition, out of an estimated 3,400 people that could petition judges under Simmons’ proposal.

While Washington’s public defense system verges on collapse due to short-staffing, Larry Jefferson, the agency’s director, said retired and former public defenders would return to do this work “in a heartbeat,” given the gratifying nature of offering people a second chance.

A triage system would make a broad resentencing scheme more manageable, acknowledged Russell Brown, executive director of the Washington Association of Prosecuting Attorneys. But he said he didn’t know if that would be enough.

More legislative negotiations will tell whether lawmakers ultimately agree, or whether they’re willing to give a system of second chances a shot.

Correction: A previous version of this story misstated the percentage of people of color in Washington’s general population.