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UW Law Societies & Justice - Life Without Parole, Washington 2015

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Life Without Parole Sentences in Washington
State
Dakota Blagg – Madison Brown – Alison Buchanan – Bryce Ellis – Olivia Gee – Andreas Hewitt
– Zoe Liebeskind – Katelyn Lowthorp – Alexandra Lynch – Hannah Schwendeman – Nicholas
Scott
University of Washington, Law, Societies & Justice Program
May 2015
Abstract
Although the United States has the largest prison population in the world and one
in nine prisoners is serving an official life sentence, little is known about why or
how life-long sentences have increased in the United States. Moreover, most
estimates of the number of prisoners serving life sentences omit those serving
such long sentences that they are unlikely to leave prison alive. Our report seeks
to fill these research gaps by identifying the number of official and de facto lifers
in Washington State and the legal processes that lead to life sentences. The report
also estimates the costs associated with life-long sentences, and considers whether
Washington should reinstate a parole program and what that program might look
like. To conduct our research, we analyzed Washington State sentencing data and
held interviews with policy experts and parole board administrators across the
nation. Our findings include a count and demographic profile of the Washington
State population serving de facto and official life without parole sentences,
identification of legislation that contributed to the growth of the lifer population,
and cost estimations for the imprisonment of this population. In conclusion, we
argue that reinstating a well-structured, active review board coupled with a
renewed commitment to rehabilitation will best serve the public interest of
Washington State.
Key Words
Life sentences, LWOP (life without parole), parole, parole board, prison,
prisoners, sentencing reform, Sentencing Reform Act, rehabilitation, Washington
State

Acknowledgements - The authors would like to express their gratitude towards Heather Evans,
the members of the Concerned Lifers Organization, the Law, Societies, & Justice program at the
University of Washington, and their research supervisor, Dr. Katherine Beckett, for their
support and contributions.

TABLE OF CONTENTS
I. INTRODUCTION
THE HISTORY OF PAROLE IN WASHINGTON STATE
RESEARCH QUESTIONS
SUMMARY OF KEY FINDINGS

1
3
4
6

II. DATA AND METHODS

7

SENTENCING DATA AND ANALYSIS
FISCAL COST ANALYSIS: DATA AND METHODS
QUALITATIVE RESEARCH ON PAROLE BOARDS

7
10
11

III. FINDINGS
WASHINGTON’S LWOP POPULATION
Demographics
Crime of Conviction
Legal Processes Contributing to the increase in LWOP Sentences
IS THERE UNIFORMITY UNDER THE SRA?
Disparities in Sentencing Outcomes
The Nature of the Trial Penalty Over Time
THE FISCAL COST OF LWOP SENTENCES
The Cost of Incarcerating the Elderly
The Taxpayer’s Burden

11
11
14
17
18
22
23
25
30
31
32

IV. POLICY RECOMMENDATIONS
BACKGROUND: THE ISRB TODAY
RECOMMENDATION 1: REINTEGRATE REHABILITATION
RECOMMENDATION 2: CREATE A PRE-RELEASE REVIEW PROCESS
RECOMMENDATION 3: REPEAL THE PERSISTENT OFFENDER ACCOUNTABILITY
AND HARD TIME FOR ARMED CRIME ACTS

38
38
40
45

V. CONCLUSION

48

VI. SOURCES CITED

50

VI. APPENDICES
APPENDIX A.
APPENDIX B.
APPENDIX C.

58
58
66
66

47

LIST OF TABLES AND FIGURES
TABLES
Table 1. Life without Parole Sentence Terminology

9

Table 2. Average Sentence Length by Offense and Offender Score

25

Table 3. Sentence Length Range by Offense and Offender Score

29

Table 4. Cost Analysis Methodology

33

Table 5. Cost and Savings According to Sentence Length

35

LIST OF FIGURES
Figure 1. Enumerating the LWOP Population

12

Figure 2. Life Sentences Comparisons

13

Figure 3. Number of Official and De Facto LWOP Cases by Year

14

Figure 4. Gender of Washington State Prisoners, LWOP vs. Not LWOP

15

Figure 5. Race/Ethnicity of Washington State Residents and Prisoners

16

Figure 6. Crime of Conviction by Type of Sentence

17

Figure 7. Number of Official LWOP Sentences and ‘Three Strikes’ Convictions by Year

20

Figure 8. Cases Resolved by Plea vs. Trial, LWOP and Not LWOP

23

Figure 9. Mean Sentence Length for First Degree Homicide, Plea vs. Trial, 1985-2013

26

Figure 10. Mean Sentence Length for First Degree Assault, Plea vs. Trial, 1985-2013

27

Figure 11. Mean Sentence Length for Second Degree Robbery, Plea vs. Trial, 1985-2013

28

Figure 12. Recidivism Rate and Cost of LWOP for a Typical Prisoner

36

I. INTRODUCTION
Although only 5% of the world’s population resides in the United States, nearly one-fourth
(22%) of the world’s prisoners do.i, ii Of those incarcerated in U.S. prisons, one in nine prisoners
is serving an official life sentence.iii This statistic does not include prisoners who have been
given other extremely long sentences and are likely to die in prison despite not having received
an official life without parole (LWOP) sentence. The widespread imposition of life without
parole sentences in the contemporary United States sets it apart from other industrialized
countries,iv many of which consider such sentences to be in tension with important human rights
principles.
Life without parole sentences, including “de facto” life sentences, raise important questions
about human rights, fairness, proportionality, and public safety. In this report, we describe the
Washington State LWOP population, identify the legal processes that explain the growth of this
population, and consider the human and financial costs associated with life without parole
sentences. Unlike other recent reports that highlight the growth of the lifer population in the
United States, this report identifies and enumerates prisoners serving de facto life sentences as
well as official life sentences. Doing so shows that Washington State’s LWOP population is
larger than previously recognized. The findings also indicate that several important legal
developments have contributed to the expansion of LWOPs in Washington State. These include
the elimination of Washington’s parole board, initiated by the passage of the Sentencing Reform
Act (SRA) in 1984 and the adoption of other sentencing reforms that enhance sentencing

1

severity. Together, these legal developments have created a significant population of prisoners
that will never have the opportunity to have their status reviewed or to reintegrate into society.
In addition to providing an up-to-date count and demographic profile of all prisoners serving
official and de facto LWOP sentences, this report describes the fiscal, social, and human costs
associated with the increase in life sentences. We also recommend the adoption of a new and
innovative review process that may pave the way for the return of a formalized parole board.
Specifically, we recommend the creation of a Possible Release Evaluation Process (PREP) that
would encompass both pre- and post-release rehabilitative services and provide for evaluation of
prisoners by a review board. With this recommendation, we hope to usher in the beginning of a
formal departure from the determinant sentencing structure mandated in the Sentencing Reform
Act. We also recommend repeal of several sentencing statutes that have contributed to the
dramatic growth of the LWOP population in Washington State.
This report is divided into four sections. In the remainder of the introduction, we review the
history of parole in Washington State, describe our research questions, and provide a summary of
key findings. In Part II, we describe our data and methods. Part III presents our findings
regarding Washington’s LWOP population, the persistence of sentencing disparities under the
SRA, and the fiscal costs of LWOP sentences. In Part IV, we present our policy
recommendations.

2

IA. THE HISTORY OF PAROLE IN WASHINGTON STATE
Washington State first established an official parole board on June 15, 1935.v The board operated
in the context of an indeterminate sentencing framework and evaluated whether prisoners were
ready to be released from prison. Its goals were to ensure public safety, promote consistent
sentencing practices, and guide prisoners back into society.vi The board consisted of five
members appointed by the governor.vii First, a judge set a maximum sentencing term for the
prisoner according to a state legislative sentencing grid. The board then set a minimum sentence
that determined when the prisoner could be considered for parole.viii The board heard cases
involving a variety of charges and held many reviews. For example, the board held a total of
5,000 hearings in 1980 alone, each of which lasted an average of 30 minutes.ix Prisoners with
long sentences were entitled to review after 20 years minus one third of their sentence if they
qualified for good time,1 or 13 years and 4 months.x
The 1984 SRA largely eliminated parole in Washington State,xi mainly as result of research that
had suggested rehabilitation-based sentencing failed to reduce crime rates and increase public
safety.xi The legislature and community also had concerns regarding the parole board’s discretion
and possibly arbitrary practices.xii State prosecutors and others expressed frustration with parole
board leniency and inconsistencies in sentencing outcomes.xiii
These frustrations, along with emerging research indicating that rehabilitation programs were
ineffective,xii eventually led to heated public debates about sentencing policies.xi In 1976, to
1

Under Washington State law, “The earned early release time shall be for good behavior and good
performance as determined by the correctional agency having jurisdiction” (RCW 9.92.151).

3

address the board’s perceived arbitrariness, the legislature attempted to create a uniform
guideline matrix for parole board members to use in sentencing decisions.xi The board supported
the distribution of these matrices. However, follow-up research indicated that the board failed to
implement these guidelines. Several attempts throughout the next five years were made to
restructure parole board guidelines in order to make the board’s decisions more uniform, but
these were also unsuccessful, and resulted in the board following these standards only 63% of the
time.xi Inconsistent sentencing practices, research suggesting the ineffectiveness of rehabilitation
programs, and the subjectivity of Washington’s parole board all led to bipartisan support for
sentencing reform. Ultimately, Washington State eliminated its parole board and certain aspects
of judicial discretion.xv With the subsequent adoption of the Sentencing Reform Act, the State
shifted away from a rehabilitation-based system and instead attempted to create a uniform
determinate sentencing structure that prescribed punishments proportionate to the severity of the
crime. In so doing, it de-emphasized rehabilitation and terminated the system of sentence review
for defendants sentenced after July 1984, thereby eliminating the possibility of review for most
prisoners, including those sentenced to life in prison.
IB. RESEARCH QUESTIONS
The primary purpose of this report is to describe the population of prisoners serving life without
parole sentences in Washington State and to identify the legal processes that have contributed to
the growth of this population. Our research questions are as follows:

4

❖ How many people are serving official and de facto life sentences in Washington, and
what are the characteristics of this population?
❖ What legal processes lead to official and de facto official and de facto life without
parole sentences in Washington State?
❖ What is the cost of life without parole for Washington State taxpayers?
❖ Should Washington State reinstate a parole system, and if so, what should this
program look like?
A recent Sentencing Project report found that one in nine prisoners in the United States, and one
in six Washington State prisoners, is serving a life sentence.iii As previously noted, these figures
do not include individuals serving de facto life sentences, i.e., sentences that are so long that
prisoners are not expected to leave prison alive. Despite the dramatic growth of the lifer
population, the legal processes by which persons receive life sentences have garnered
comparatively little attention from researchers. Examining the legal processes related to life
sentencing is central to understanding and analyzing the LWOP population in Washington State.
Although additional research is needed, the findings presented here clearly indicate that
mandatory sentencing laws adopted after 1984 have contributed to the recent rise in the number
of prisoners serving life sentences. In particular, both the Persistent Offender Accountability Act
(commonly referred to as the “three strikes” law) and the Hard Time for Armed Crime Act of
1995 have significantly contributed to the growth of the Washington State LWOP population.
Part III of this report assesses how these laws have contributed to the lifer population, and in
particular, persons serving LWOP sentences. Our analyses consider how the number of people

5

sentenced to life due to these enactments has changed as well as how the existence of these laws
has altered plea bargaining practices and impacted the nature of the “trial penalty” for those who
elect to exercise their right to a jury trial. We also explore the fiscal costs of life without parole
sentences in Washington State and consider whether the goals of the Sentencing Reform Act of
1984 (SRA) have been met.
Finally Part IV of this report identifies a feasible and effective means for the state to reform
existing sentencing practices. We focus on conceptualizing a new parole system for Washington
State that includes pre-and post- release programs and creates an incentive for prisoners to
participate in rehabilitative programming. We conclude by demonstrating that the financial and
social burdens associated with life without parole sentences, and recommend that rehabilitation
and review should be systematically reintegrated into the sentencing policy framework in
Washington State.
IC. SUMMARY OF KEY FINDINGS
❖ Nearly one in five (19.3%) Washington State inmates are currently serving a life
sentence. There are currently at least 1,383 individuals serving an official or de facto life
without parole sentence in Washington State. Of these, 704 are serving an official
LWOP, and 679 are serving a de facto LWOP. The LWOP population represents 8% of
the Washington State prison population as of 2013.2 An additional 1,981 (11.3%) of
Washington’s prisoners were serving a life with parole sentence in 2013.

6

❖ Half (50%) of those serving official life without parole sentences in Washington State
were sentenced under the Persistent Offender Accountability Act (three strikes) law.
❖ While felony defendants went to trial in only 5.3% of Washington State Superior Court
cases sentenced between July 1985 and June 2013, defendants in two-thirds (67.4%) of
all cases that resulted in an LWOP sentence during this period went to trial.
❖ There are 128 individuals currently serving de facto life without parole sentences solely
due to weapons enhancements. These individuals account for nearly 20% of the de facto
LWOP population.
❖ The average life without parole sentence costs taxpayers $2,457,264 per prisoner (in 2014
dollars). Prior to the SRA, when lifers were reviewed and often released, the average life
sentence cost taxpayers $767,895 per prisoner (in 2014 dollars).
❖ Our research indicates the importance of having a review process and a system of
rehabilitation and release programs in order to balance public safety concerns against the
human and fiscal costs associated with life-long sentences in Washington State.
II. DATA AND METHODS
IIA. SENTENCING DATA AND ANALYSIS
Our analysis of sentencing trends is based on an analysis of Washington State Superior Court
sentencing data provided to Dr. Katherine Beckett by the Washington State Caseload Forecast
Council. These data include information about all felony cases sentenced in Washington State

7

from July 1985 to June 2013. During this period, 621,653 cases were sentenced.3 We analyze
these data to explicate trends in sentencing practices and outcomes. In these analyses, cases
(rather than people) are the unit of analysis,4 with one exception. In order to identify the number
of inmates currently serving an LWOP sentence in Washington State, we used the court data to
identify all cases resulting in a de facto or LWOP sentence since July 1985, then used DOC
rosters to identify people sentenced to an LWOP prior to July 1985 and those sentenced to an
LWOP who are no longer in custody because they since died in custody. We also removed
prisoners who had been released as a result of clemency, commutation or a pardon. By
combining court data, DOC and executive records in this manner, we were able to identify the
number of prisoners currently serving LWOP in Washington State.
In order to identify prisoners serving de facto LWOPs, we used the U.S. Sentencing Commission
standard of 470 months (approximately 39 years) or more to be an LWOP sentence where parole
does not exist. The U.S. Sentencing Commission adopted this measure as it is “consistent with
the average life expectancy of federal criminal offenders given the average age of federal
offenders.” xvii These sentences will be referred to as de facto life without parole sentences, or de
facto LWOPs. We will collectively refer to official and de facto life sentences as all LWOPs (see
Table 1).

3

Fifty-eight cases were removed from our analyses due to missing information.
It is possible for a single individual to be represented more than once within our 621,653 felony cases,
as our unit of analysis is instances of sentencing. For example, if a person was sentenced to a felony
conviction twice within the years analyzed, they would be represented twice. However, because an
individual can only be sentenced to life without parole once, we consider our All LWOP cases to equate
to our lifer population from July 1985 to June 2013.
4

8

Table 1. Life without Parole Sentence Terminology
Term

Definition

LWOP

A life sentence without the possibility of parole

Official LWOP

Court ordered life without the possibility of parole sentences

De Facto LWOP

Sentences of 470 months or longer (approximately 39 years)

All LWOP

Official and de facto life sentences combined

Because this research specifically concerns those who have been given de facto and official
LWOP sentences, we have excluded an additional 23 prisoners who were sentenced to the death
penalty. While we understand the importance of acknowledging this population of prisoners, this
report focuses on prisoners who have been given LWOP sentences and the processes by which
they have received such sentences. We also exclude life sentences with the possibility of release,
although note that this population has also increased sharply.
Since the adoption of the Sentencing Reform Act in 1984, two groups of prisoners have life with
the possibility of parole sentences. First, prisoners sentenced prior to the implementation of the
SRA in 1984 remain eligible to come before the Indeterminate Sentencing Review Board. In
addition, legislation adopted in 2001 extended the maximum sentence for certain sex offenses to
life and required that the ISRB review these cases and determine whether and when to release
affected prisoners.xviii These two groups – prisoners sentenced prior to 1984 and certain sex
offenders – thus have the chance to be reviewed and considered for release by the Indeterminate
Sentencing Review Board. While it is important to acknowledge these life sentences, most

9

people who receive an indeterminate life sentence have been or will be released. Because the
primary focus of this report is to evaluate the impact of the absence of parole in Washington
State, we focus mainly on LWOP rather than life with parole sentences.
IIB. FISCAL COST ANALYSIS: DATA AND METHODS
In this report we calculate the cost of the average LWOP sentence in Washington State,
recognizing that elderly prisoners are more expensive to incarcerate than their younger
counterparts. To do this, we combine the cost of incarcerating a non-elderly prisoner with the
cost of incarcerating an elderly prisoner. Our calculations are based on the following empirical
findings.
The average age of incarceration is 25. The average prisoner dies behind bars at age 64.xx The
average time served by people serving LWOPs is thus 39 years. Due to the increased healthcare
and staffing costs associated with aging prisoners, a prisoner is considered elderly at age 55.xx
Using Washington State DOC data, the VERA Institute has identified the average annual cost of
incarcerating a non-elderly prisoner. In our analyses this figure is converted to 2014 dollars to
account for inflation.
The average cost of incarceration doubles or triples when prisoners reach their elderly years.5, x,
xi, xxii

For the purposes of this report, we chose the conservative estimate that the annual cost of

incarcerating the elderly is double that of incarcerating the non-elderly. Based on these empirical
5

Notably, this is a conservative estimate. Other sources find elderly prisoners actually cost three times as
much to incarcerate. See Lee, M., & Colgan, B. (2011). Washington's three strikes law: Public safety and
cost implications of life without parole. In Columbia Legal Services. Using these metrics, the cost of an
“elderly” year in prison in 2014 dollars would be $153,579.

10

findings, we are able to estimate the total cost of an average LWOP sentence in Washington
State.
IIC. QUALITATIVE RESEARCH ON PAROLE BOARDS
We interviewed both administrators and officials involved with parole programs in a variety of
states to gain a comprehensive understanding of how states structure their parole boards and
processes. These interviewees are identified in Appendix A. In addition, although we did not
conduct formal interviews with prisoners serving LWOPs, each of us attended meetings of the
Concerned Lifers Organization at the Washington State Reformatory to gain a better
understanding of their concerns about LWOP sentences. Our recommendations for PREP draw
from these interviews and discussions, as well as from our comprehensive review of existing
parole boards, clemency hearings and parole equivalents in states that have retained these
structures.
III. FINDINGS
IIIA. WASHINGTON’S LWOP POPULATION
Below, we describe the Washington State lifer population and identify the legal processes that
contributed to the expansion of this population from July 1985 to June 2013. To determine how
many people are currently serving and LWOP sentence, we combined the total of all LWOP
cases identified in the court data and added those sentenced to life prior to July 1985. We then

11

subtracted individuals who died in custody or were released through commutation, clemency, or
pardon6 (see Figure 1).

Figure 1. Enumerating the LWOP Population
All LWOPs in
Superior Court
data sentenced
from July 1985 to
June 2013
(1,419)

-

+

Official LWOPS
released through
commutation,
clemency, or pardon
(15)

All LWOPs
sentenced prior to
July 1985 who are
currently alive
(53)

-

All inmates
serving LWOPS
who have died in
DOC custody
(74)

Prisoners currently
serving life in
Washington State
Prisons
(1,383)

=

In order to contextualize Washington State’s use of LWOP, Figure 2 provides a comparison of
the current Washington State population and the LWOP equivalent in democratic, industrialized
nations often seen as comparable to the United States. The graph below shows the LWOP
populations in Washington State, the United Kingdom, Australia, and the Netherlands. These
statistics are even more striking considering that the population of Washington State is 7.1
million, while the populations of the United Kingdom, Australia, and the Netherlands are 64.1
million, 23.1 million, and 16.8 million, respectively.
6

We have not considered the possibilities of good time/earned release credits for the de facto LWOP
population in these analyses.

12

Figure 2. Life Sentences Comparison
WA All Life

3,364

WA All LWOP

1,383

WA Official LWOP

704

WA De Facto LWOP

679

Australia LWOP

59

UK 'Whole Life Tarriffs*

50

Netherlands LWOP

37
0

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

Population of Current Lifers
Source: Authors’ analysis of data provided by Washington State Administrative Office of the Courts;
DOC Current Alpha Roster as of January 30, 2015.
Notes: Figures for the all life category are taken from the Sentencing Project and are from 2012. This is a
conservative estimate because some people sentenced to life prior to July 1984 are in fact serving
LWOPs, and because people sentenced since 2013 are not included. Also, the DOC alpha roster
identifying persons currently serving LWOPs in Washington State appears to be incomplete.
*Information available only for jurisdictions within England and Wales. Source: De la Vega, C., Solter,
A., Kwon, S., Isaac, D. M. (May 2012). Cruel and Unusual: US Sentencing Practices in a Global
Context; United Kingdom Ministry of Justice. (January 2015). Statistical Bulletin.

A total of 1,419 LWOP sentences were imposed from July 1985 to June 2013. All further
analyses are based upon the sentencing data. Among these cases, 731 prisoners received official
LWOP, and another 688 received a de facto life sentence. De facto lifers thus comprise nearly
half of the LWOP population in Washington State. Figure 3 illustrates the number official and de
facto LWOP sentences by year of sentence. Official LWOP cases peak in 1996 when 52

13

individuals were sentenced to life. De facto LWOP cases were highest in 2011 with 37
individuals sentenced to 39 years or more in state prison.

Figure 3. Number of Official and De Facto LWOP Cases
by Year
60"

52

50"

37

40"
30"

8

20"
10"

4
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

0"

Official LWOP

De Facto LWOP

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Note: 1985 and 2013 were excluded from this graph because there is only partial data available for these
years.

Demographics of the LWOP Population
The Washington State LWOP population is primarily male and disproportionately black.
Overall, 81% of felony cases involve male defendants. Men comprise an even higher percentage
of the population serving LWOP sentences: nearly 97% of those serving official and de facto life
without parole sentences are male (see Figure 4). This is likely the case because life without
parole sentences are generally imposed for violent crimes.

14

100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%

Figure 4. Gender of Washington State Prisoners,
LWOP vs. Not LWOP
81%

97%

Men
Women

19%
3%
Not LWOP

LWOP
Sentence Type

Source: Author’s analysis of data provided by the Washington State Administrative Office of the Courts,
Note: ‘Not LWOP’ denotes prisoners with sentences less than 39 years.

Relative to the general population, black individuals are overrepresented among those sentenced
to prison. Black men are even more disproportionately represented among those serving LWOP
sentences in Washington State. According to Washington State census data, approximately 4%
of the general state population identifies as black or African American, while 15% of felony
cases involve black defendants. An even greater share - 28% - of defendants serving LWOPs in
Washington State are black (see Figure 5). By contrast, white individuals are notably

15

underrepresented in Washington State prisons and among lifers specifically: approximately 85%
of the state population is white, but 58% of all LWOP cases involved white defendants.7

Figure 5. Race/Ethnicity of Washington State Residents
and Prisoners
90%
80%

85%
70%

70%

WA State
Population

58%

60%
Not LWOP

50%
40%

All LWOP

28%

30%
15%

20%
10%

12%

15% 14%

3%

0%
White

Black

Other

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
and United States Census Data from 1980, 1990, 2000, 2010
Note: ‘Not LWOP’ denotes prisoners with sentences less than 39 years.

Individuals sentenced to LWOP during the period under investigation ranged from 15 years to 73
years old at the time of sentencing. Seventy-one individuals were sentenced to life without parole
as minors. Most LWOP defendants were sentenced between the ages of 31 and 38, although the
7

These are average proportions across the time period spanning 1980—2010. Washington State has had a
relatively stable black population with 2.6% as the lowest percentage, 3.6% as the highest, and the
average as 3.13%. For the white population, the lowest percentage was 77.3% and the highest was 91.5%,
with an average of 84.8%.

16

average age at sentencing for other felony cases is between 19 and 24. This pattern likely reflects
the fact that individuals with prior convictions are more likely to receive a life sentence under
current sentencing policies.
Crime of Conviction
Over half (61.5%) of all LWOP sentences were imposed in cases involving some type of
homicide. However, a substantial percentage (39%) of prisoners serving life were sentenced for
non-homicide offenses. One in five (20%) of those serving an official LWOP committed
robbery. About one in ten (11%) were convicted of some type of assault (see Figure 6).

Figure 6. Crime of Conviction by Type of Sentence

80%

68%

70%
60%
50%

De Facto
LWOP

40%

34%
Official
LWOP

30%
20%

20%
10%

15% 14%
3%

8%

8%

11%

1%

0%
Aggravated
Murder

Homicide

Rape

Robbery

Assault

Offense

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts

17

Legal Processes Contributing to the LWOP Population
The Washington Sentencing Reform Act (SRA) is the most important piece of sentencing
legislation regarding lifers because it eliminated Washington State’s parole system for
defendants sentenced after its implementation. A 2000 report by the State of Washington
Sentencing Guidelines Commission reiterated the original purpose of the SRA:
When enacting the Sentencing Reform Act in 1981, the state legislature’s intent
was clear that the paramount purpose of the Act is for punishment. The original
purpose of sentencing reform was to shift the emphasis from rehabilitation to
proportionality, equality and justice. Rehabilitative treatment and its promise was
supposed to be trumped by the primacy of proportionality.xxiv
Since its adoption, the state legislature has frequently amended the SRA. Sentences are now far
longer than they were when the SRA was enacted in 1984.xi While the shift from indeterminate
to determinate sentencing guidelines reduced judicial discretion in sentencing and removed the
opportunity to come before a parole board for most defendants, other legislation catalyzed three
decades of increasingly harsh sentences in Washington State.
The Persistent Offender Accountability Act (POAA) of 1993xxv is one of the most important of
the legislative changes that fueled the rise of LWOPs. This “three strikes” law mandates a life
without parole sentence for any individual convicted of a third “most serious offense.” “Most
serious offenses” include all Class A felonies as well as other specific felonies, such as first and
second degree assault, first and second degree robbery, and burglary.xxiii Those convicted of a

18

“third strike” offense are sentenced to life without parole and have neither the chance of release
(other than through the clemency process) nor the opportunity to appear in front of a parole
board.
Nationally, the POAA was the first legislation of its kind, and its enactment it has significantly
increased Washington’s population of prisoners serving official life without parole sentences.xxvi
Of the 731 official life without parole sentences, half are “three strikers” who received their
LWOP sentences through this legislation. The first POAA cases appeared in 1995, and the
numbers quickly skyrocketed (see Figure 7). In 1996, for example, 37 of the 52 individuals who
were sentenced to life without parole were sentenced under the POAA. Of the 365 “three strikes”
cases, 36%, over one-third, stem from robbery offenses. These cases show that the POAA has
become one of the primary contributors to the expanding LWOP population in Washington State.

19

Figure 7. Number of Official LWOP Sentences and 'Three
Strike' Convictions by Year
60
50
40
30
20

0

1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

10

Official LWOP Sentence

Persistent Offender 'Three Strikes' Conviction

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts

In addition, legislation mandating the addition of weapons enhancements to certain felony
sentences is a leading contributor to the de facto LWOP population. Weapons enhancements
require additional time beyond the standard sentence range for cases in which the defendant or
an accomplice was armed with a firearm.xxvii In 1993, the most severe weapons enhancement was
an additional 24 months for first degree rape, first degree robbery, and first degree
kidnapping.xxviii
However, in 1994, the scope of weapons enhancements widened with the adoption of
Referendum 43, which added a 12-month enhancement for murder, manslaughter, arson, and

20

first degree assault. In the wake of several deadly attacks on police officers in 1994, the
significance of weapons enhancements increased, when Washington State voters enacted the
Hard Time for Armed Crime Act (HTACA), which provided mandatory sentence enhancements
for crimes involving firearms. These enhancements apply to nearly all felonies and are based
upon the statutory severity of the felony. Class C (least severe) felonies can be enhanced by
either six or eighteen months per enhancement. Class A (most severe) felonies can be enhanced
by two to five years per enhancement.xxvii Any added time must be served consecutively. The
HTACA removed judicial discretion to reduce or alter an enhancement, even in exceptional
circumstances. In practice, this means that prosecutors can use weapons enhancements as a tool
to encourage plea bargaining. However, if a plea bargain is rejected, weapons enhancements
added to the charges can substantially lengthen a defendant’s prison term.
Our analyses show that weapons enhancements have contributed markedly to the growth of the
de facto LWOP population. Although prisoners in only 1.5% of felony cases received weapons
enhancements, 40% of all LWOP sentences and 61% of de facto LWOP sentences include
weapons enhancements.8 Nearly 20% of the de facto LWOP population (128 people) would not
be serving 470 months or longer if they had not been charged with weapons enhancements. Of
these individuals, 47 did not commit homicide. Even more striking is that there are 18
individuals in Washington serving 39 years - a de facto life sentence - due to weapons
enhancements alone. Despite the stipulations within the HTACA that mandate a specific number
of months for weapons enhancements, added time because of these enhancements ranges widely,
8

These statistics exclude cases sentenced prior to 1995, as this was the year Hard Time for Armed Crime
passed. Of cases sentenced after 1995, 2.3% of the data regarding weapons enhancements is missing.

21

from 1 month to 1,260 months, or 105 years. Weapons enhancements have thus substantially
influenced the expansion of the LWOP population in Washington State.
IIIB. IS THERE UNIFORMITY UNDER THE SRA?
The Sentencing Reform Act imposed sentencing guidelines intended to “reduce disparities
among prisoners who are sentenced for similar crimes and have similar criminal histories.”

xxix

Although this provision of the SRA did not explicitly seek to eliminate disparities between
sentences imposed after trial and those settled by a plea bargain, our findings indicate that
defendants convicted of the same crime with the same offender score can and do receive quite
different sentences depending upon whether the case went to trial.9 However, we also find that
significant variation in sentencing outcomes persists even among similar cases with modes of
adjudication. Finally, the findings presented in this section show that for some offenses, the
sentences imposed via plea bargain have also increased over time.
Our exploration of a possible “trial penalty” is motivated by our finding that two-thirds of all
people sentenced to LWOP since 1985 went to trial. Figure 8 presents the number of LWOP
cases that went to trial or took a plea bargain by type of sentence. Only 5% of cases that did not
result in an LWOP went to trial. By contrast, two-thirds, or 67%, of all LWOP cases went to
trial. This suggests that there is a correlation between LWOP sentences and the trial process, and
raises the possibility that people who take their case to trial are being penalized for doing so.
9

The offender score is one factor that affects felony sentencing. An offender may receive from 0 to 9+
points on the offender score axis of the sentencing grid. In general, the offender score reflects prior felony
criminal convictions. For more information regarding offender scores see Washington State Code RCW
9.94A.525.

22

Figure 8. Cases Resolved by Plea vs. Trial,
LWOP and Not LWOP
100%
90%

33%

80%
70%
60%
50%

Plea

95%

40%

67%

30%

Trial

20%
10%
0%

5%
Not LWOP

All LWOPs
Sentence&Category&

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Note: ‘Not LWOP’ denotes prisoners with sentences less than 39 years.

Disparities in Sentencing Outcomes
Below, we compare the average sentence imposed in LWOP cases that were adjudicated via jury
trial with cases involving identical charges and offender scores adjudicated via plea bargain. We
focus on three types of felony convictions that are common among the LWOP population and for
which sufficient data were available: first degree homicide, first degree assault, and second
degree robbery. The results of this analysis indicate that the SRA has not achieved uniformity in
sentencing outcomes (see Table 2). That is, individuals with the same offender score who were

23

convicted of the same crime and chose to exercise their right to a trial received substantially
longer sentences than similarly situated defendants who accepted a plea bargain. This gap is
comparatively small for the more serious offense (homicide) but relatively large for less serious
offenses. In the case of homicide, individuals who went to trial for first degree homicide and who
had an offender score of zero were sentenced to an average of 309 months. However, individuals
who accepted a plea bargain with the exact same offender score and were convicted of the exact
same charge were sentenced to an average of only 282 months. Individuals with no prior
convictions and who opted to go to trial for homicide thus received sentences that were 9.6%
longer than their counterparts who chose to accept a plea deal.
The gap between sentences in cases involving plea bargains versus trials is greater in cases
involving less serious offense. For example, individuals convicted of first degree assault with an
offender score of zero who chose to accept a plea bargain were sentenced to an average of 53
months in prison. By contrast, those in the same circumstances who opted to go to trial were
sentenced to an average of 77 months – a 45.3% longer sentence than those individuals who
accepted plea bargains. Among individuals convicted of first degree assault with an offender
score of two, those who chose to accept a plea bargain were sentenced to an average of 80
months, while those who went to trial received an average of 135 months. Again, the individuals
who chose to exercise their Sixth Amendment right to a trial received a longer sentence than
their identical counterparts who chose to accept a plea bargain (see Table 2).

24

Table 2. Average Sentence Length by Offense and Offender Score
Average Sentence Length in
Months
Crime
First degree
homicide
n=811

First degree assault
n =1,754

Second degree
robbery
n = 35,068

Offender
Score

Trial

Plea

Trial Penalty
Mean

0
2
4
0
2
4
0
2
4

309
350
371
77
135
148
2*
8
14*

282
333
362
53
80
101*
2*
6
13*

9.6%
5.1%
2.5%
45.3%
68.8%
46.5%*
0.0%*
33.3%
7.7%*

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Note: Cases were only these particular offenses were charged were included (i.e. the offense listed was
the only charge sentenced in that case). Any months added for weapons enhancements were excluded
from these averages.
*Indicates that LWOP cases were removed from these categories in order to more accurately reflect the
range and average. However, 3 individuals with an offender score of 0 were sentenced to life for
committing second degree robbery; 4 individuals with an offender score of 4 were sentenced to life for
committing second degree robbery; and 1 individual with an offender score of 4 was sentenced to life for
committing first degree assault.

The Nature of the “Trial Penalty” over Time
Below, we explore how the nature of the trial penalty has changed over time. We also explore
the possibility that statutes such as the Persistent Offender Accountability Act result in
increasingly long sentences both in cases involving trial and those involving plea bargains. This
is because statutes such as the Persistent Offender Accountability Act may increase prosecutors’
capacity to secure plea deals that involve comparatively long sentences. To assess this
hypothesis, we focus on three offenses common among the LWOP population: first degree

25

homicide, first degree assault, and second degree robbery. Figures 9 - 11 show the average
sentence length imposed in cases that went to trial versus those imposed in cases resolved
through a plea bargain for cases involving (only) first degree homicide, first degree assault and
second degree robbery charges. We use these figures to assess whether the trial penalty has
grown larger over time, and, more generally, how sentence lengths have changed over time.
The results shown in Figure 9 suggest that the difference between sentences resulting from trials
do not differ very substantially from those that result from plea bargains in cases that involve a
single Homicide 1 charge. It also suggests that the average sentence imposed in these cases has
been fairly stable over time.

Months

Figure 9. Mean Sentence Length for First Degree Homicide,
Plea vs. Trial, 1985-2013
500
450
400
350
300
250
200
150
100
50
0

Trial
Plea

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Note: Additional months resulting from weapons enhancements were not included in these results.

26

By contrast, the results depicted in Figure 10 indicate that there is a comparatively large gap
between the sentences imposed after trial versus through a plea bargain. These results also
indicate that the sentences imposed for this offense have grown larger over time regardless of the
adjudication method.

Figure 10. Mean Sentence Length for First Degree Assault,
Plea vs. Trial, 1985-2013
300

Months

250
Trial

200
150

Plea

100
50
0

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Note: Additional months resulting from weapons enhancements were not included in these results.

Finally, the results shown in Figure 11 indicate that for Robbery 2, the gap between sentences
resulting from trials versus plea bargains was largest in the 1990s. These also results also suggest
that the sentences imposed for this offense after a trial were longest in the 1990s, but that
sentences imposed via plea bargains have increased steadily throughout the period under
investigation.

27

Figure 11. Mean Sentence Length for Second Degree
Robbery, Plea vs. Trial, 1985-2013
80
70
Months

60
Trial

50
40

Plea

30
20
10
0

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Note: Additional months resulting from weapons enhancements were not included in these results.

The results shown in Figures 9 – 11 thus suggest that the nature of the trial penalty has varied
over time, and tends to be larger for less severe crimes. The results also provide some support for
the idea that legislation such as the POAA has enabled prosecutors to secure longer sentences in
cases that are adjudicated through a plea bargain.
But it is not merely the discrepancies between sentences resulting from trials and those resulting
from plea bargains that are notable, but also the ranges within these groups. Table 3 shows these
ranges, which are surprisingly substantial. For example, of those convicted of first degree
homicide with an offender score of 0 who went to trial, sentences ranged from 48 months and
900 months. Among those charged with first degree assault with an offender score of zero, some

28

individuals spent no time in prison, while others were sentenced to 20 years in prison. Very
disparate sentences were thus imposed in cases involving the same crime and offender score.

Table 3. Sentence Length Range by Offense and Offender Score
Sentence Length Range in Months
Crime
First degree homicide
n=811

First degree assault
n=1,754

Second degree robbery
n=35,068

Offender Score

Trial

Plea

0
2
4
0
2
4
0
2
4

48 – 900
204 – 700
210.75 – 494
0 – 240
12.03 – 300
20 – 366
0 – 24*
0 – 24
0 – 40*

60 – 640
120 – 924
216 – 510
0 – 246
11 – 216
1.84 – 246*
0 – 240
0 – 67.50
0 – 120*

Source: Authors’ analysis of data provided by the Washington State Administrative Office of the Courts
Notes: Cases were only these particular offenses were charged were included (i.e. the offense listed was
the only charge sentenced in that case). Any months added for weapons enhancements were excluded
from these ranges
*Indicates that LWOP cases were removed from these categories in order to more accurately reflect the
range and average. However, it is important to consider that 3 individuals were sentenced to life for
committing second degree robbery with an offender score of 0; 4 individuals were sentenced to life for
committing second degree robbery with an offender score of 4; and 1 individual was sentenced to life for
committing first degree assault with an offender score of 4.

In short, the findings indicate that there is a measurable penalty associated with going to trial.
This penalty is larger for less serious offenses, such as second degree robbery, perhaps due to the
broader range of charges the prosecutor can bring against the defendant. The magnitude of the
trial penalty for this offense was greatest in the 1990s, when many of the prisoners now serving
LWOP sentences were convicted. These findings underscore the importance of creating a review

29

process for prisoners serving LWOP sentences. More generally, these findings indicate that
despite the fact that the primary goal of the SRA is to reduce variation in outcomes in similar
cases involving similar crimes, significant variation in sentencing outcomes persist even in cases
in which the offender score, current charge, and the mode of adjudication is identical.
Findings indicating the existence of a “trial penalty” raise questions about whether the gap
between sentences secured through plea bargains and trials result from unconstitutional practices.
There is a substantial body of case law regarding possible “prosecutorial vindictiveness.”
Appendix B provides a detailed summary of the history of these cases. Our data suggest that
defendants who choose to exercise their right to trial after rejecting a plea deal receive
significantly longer sentences. This gap may result from practices that are thought to constitute
prosecutorial vindictiveness. However, possible instances of prosecutorial vindictiveness are
difficult to prove, and often involve cases in which prosecutors add multiple additional charges
after a defendant elects to go to trial. Since our data include information only about conviction
charges, we are unable to address whether this dynamic exists in Washington State.
IIIC. THE FISCAL COST OF LWOP SENTENCES
Life sentences are a burden on both the prisoner and Washington State taxpayers. As noted
previously, the costs associated with incarcerating the elderly are much higher than those
associated with incarcerating younger prisoners.xxx As a result, Washington State taxpayers are
carrying the fiscal burden of incarcerating individuals throughout their elderly years. This burden

30

has increased over time due to the boom in younger prisoners sentenced to life without parole in
the 1980s and 1990s who are now aging behind bars.
The Cost of Incarcerating the Elderly
Elderly individuals are at a greater risk for most health conditions because of natural aging
processes. Incarceration exacerbates these health risks, requiring additional medical care and
resource. All prisoners are at greater risk for most health conditions when compared to people of
the same age outside of prison.xxxi Both prisoners’ lifestyle before serving time and the prison
environment contribute to this increased health risk. That is, prior to entering prison, incarcerated
individuals are more likely to have engaged in high-risk behaviors such as drug and alcohol use
poor diet, lack of preventative healthcare, and a high-stress environment than their nonincarcerated counterparts.10, xxxii
Once incarcerated, prisoners face a greater risk of infectious disease, poor diet, physical abuse,
and high levels of stress, all of which contribute to poor mental and physical health. These
factors lead to a greater rate of chronic illness, sickness, and injury.xxx It follows that the elderly
prisoner population is a high risk community because they require more medical attention and
health care than their non-incarcerated counterparts. In addition to off-site transportation for
treatments and procedures, this population may require wheelchairs, walkers, canes, portable
oxygen, and hearing aids. Others need daily assistance with using the toilet, bathing, and getting
dressed. Furthermore, prisoners dying or battling chronic illness may be incontinent, forgetful,
10

A 1997 Bureau of Justice Statistics survey revealed that 83% of state prisoners and 73% of federal
prisoners reported past drug use in the United States. xxxii

31

and unable to be left alone for lengthy periods of time. It is important to note that prisoners
experience these health issues and normal processes of deterioration more quickly than those
who are not incarcerated.xxxiv
Prisons are not equipped to accommodate aging and elderly prison populations. Typically,
prisons are unable to implement preventative healthcare measures or monitor chronic conditions.
As a result, elderly prisoners require health care and treatment from external providers. Thus, the
government must not only pay for the specialized treatment, but also the transportation of the
prisoner and the additional (often overtime) wages of officers who accompany the prisoner.xxxiv
To address the specific needs of its aging prison population, Washington State opened an
assisted-living unit in the Coyote Ridge correctional facility in 2010. This 74-capacity unit
houses disabled prisoners who require a greater level of daily assistance or medical care. To cut
costs associated with consistent off-site transportation, the DOC employs two nurses on site at all
times and has built in sinks, toilets, and hospital beds in the rooms.xxxv
The Taxpayer’s Burden
Life sentences are a significant fiscal burden on taxpayers. Nationally, the average LWOP
sentence results in a 39 year prison stay, with the average prisoner beginning their sentence at
age 25 and dying behind bars at age 64.xxxvi Each LWOP sentence will cost Washington State
$51,193 each year for 30 years (until age 55).11 Elderly prisoners over 55 are at least twice as
11

According to the 2010 fiscal year, the average price of incarceration was $46,897, citing Vera Institute
of Justice (2013). The price of prisons Washington: What incarceration costs taxpayers. In C. Henrichson
& R. Delaney (Eds.) The Price of Prisons. Center on Sentencing and Corrections. The figure displayed in

32

costly to incarcerate than their younger peers.12 From age 55 until their death at approximately
age 64, this prisoner will cost Washington State $102,386 each year, for a total of nine years.
Based on these calculations, the sum of the average cost of a life without parole sentence in
Washington State is $2,457,264 per prisoner.13

Table 4. Cost Analysis Methodology
Average age of incarceration

25 years

Average age of death

64 years

Average length of incarceration (lifers)

39 years

Average annual cost per non-elderly prisoner (under 55)

$51,193

Average annual cost per elderly prisoner (over 55)

$102,386

Average total cost of a life sentence

$2,457,264

Sources: Vera Institute of Justice. (2013). The Price of Prisons Washington: What Incarceration costs
taxpayers. In C. Henrichson & R. Delaney (Eds.), The Price of Prisons. Center on Sentencing and
Corrections; American Civil Liberties Union. (2012). At America’s Expense: The Mass Incarceration of
the Elderly.

our report has been converted to 2014 dollars using CPI Inflation Calculator, http://data.bls.gov/cgibin/cpical.pl, such that the average annual cost per prisoner (under 55) in Washington in 2014 is $51,193.
12
The average annual cost per “elderly” prisoner over 55 is double that of a prisoner under 55, totaling
$102,386 in Washington State. According to the ACLU, incarcerating the elderly costs two times the
price of incarcerating an average prisoner under age 55. American Civil Liberties Union. (2012). At
America’s Expense: The Mass Incarceration of the Elderly. Given this, $46,897 x 2 = $93,794 in 2010
dollars. This number has been converted to 2014 numbers, using CPI inflation calculator displayed in our
report.
13
From age 25 to 55, then, the average prisoner is incarcerated for 30 years at an average price. The sum
over these 30 years is $1,535,790. From age 55 to 64, an average prisoner is incarcerated for 9 years at an
elderly price. The sum over 9 years totals to $921,474. In total, this cost is $2,357,264 in 2014 dollars.
Algebraically, (51,193(55-25))+(102,386(64-55))=1,535,790+921,474=2,457,264.

33

Historically, life sentences in Washington State resulted in prison stays that resulted in far
shorter prison stays than is the case today. Prior to the adoption of the SRA, a life sentence
included the possibility of parole, and all prisoners were automatically reviewed after serving the
minimum term of 20 years.xxxvii With good behavior, they were entitled to review after 20 years
minus one third of this sentence,14 which is 13 years and 4 months.xxxviii Reports published prior
to 1985 indicate that the average time served by lifers was between 15 and 20 years.15
During this time, life sentences were much less of a fiscal burden on taxpayers. Prior to the SRA,
prisoners who served the minimum life term of 13 years and 4 monthsxli were approximately age
38 upon release.16 That means their life sentence cost taxpayers an average of $682,573 per
prisoner.17,18 In other words, an average life sentence imposed in 1980 cost taxpayers about $1.8
million less per prisoner than LWOPs imposed today (in 2014 dollars). Those who served a life
sentence of 15 years cost taxpayers $1.7 less than the average LWOP sentence today.19

14

Before sentencing reforms, prisoners could serve substantially less time by proving good behavior
while in prison, referred to as “good time.”
15
The average life sentence in Washington resulted in a prison stay of 15 years and 3 months.xxxix The
average life sentence in California for first degree homicide resulted, on average, in 12 years behind bars.
16
13.3+25.
17
According to Vera (see 12) and adjusted for inflation, incarceration in Washington State costs $51,193
per prisoner per year. This number multiplied times 13 years and 4 months (13.33 years) is $682.573.
18
These numbers have been adjusted for inflation and are represented in 2014 dollars using CPI Inflation
Calculator, http://data.bls.gov/cgi-bin/cpicalc.pl.
19
According to Vera (see 12) and adjusted for inflation, incarceration in Washington State costs $51,193
per prisoner per year. This number multiplied times 15 years is $767,895. This number subtracted from
$2,457,264 is $1,689,369.

34

Table 5. Cost and Savings According to Sentence Length
Length of Life
Sentence

13 years, 4
months

15 years

20 years

35 years

39 years

Age of
Release/Death

38

40

45

60

64

$682,573

$767,895

$1,023,860

$2,047,720

$2,457,264

$1,774,691

$1,589,369

$1,433,404

$409,544

$0

Cost
Savings per
Prisoner

In short, as a result of the increased number of life sentences and the expansive growth of mass
incarceration, Washington State is spending billions extra by imposing life sentences without the
possibility of parole. This is because the number of prisoners currently serving an LWOP
sentence (1,342) multiplied by the 2014 average cost of a life sentence ($2,457,264) minus the
historical cost of a life sentence ($767,895) is $2,267,133,198. The Sentencing Reform Act
intended to “[m]ake frugal use of the state’s and local governments’ resources.” xlii. Despite this
intention, taxpayers are now paying over $1.4 million more for each LWOP compared with the
cost of life sentences prior to the enactment of the SRA.
These costs may be justified if the widespread imposition of LWOPs significantly enhanced
public safety. However, any public safety gains associated with this trend are minimal, and
therefore do not offset the fiscal costs associated with LWOP sentences. Criminological experts
overwhelmingly agree that age is the most consistent predictor of recidivism. A large body of
evidence shows that individuals age out of crime.xliii That is, older prisoners are much less likely
to reoffend than are younger prisoners. While prisoners under 25 have a re-offense rate of over

35

34%, those over age 50 have a re-offense rate of only 10%.xliv Moreover, prisoners over age 55
have a recidivism rate of less than 2%.20,xlvi Life sentences overstate the necessity of prolonged
incarceration because elderly prisoners are highly unlikely to reoffend. Although prisoners over
55 years old are twice as costly to incarcerate annually, they are 17 times less likely to reoffend
upon release than their younger peers.21 The costs and recidivism rates are illustrated in Figure
12.

40%
35%
30%
25%
20%
15%
10%
5%
0%

2,000,000
1,500,000
1,000,000
500,000
0
0

5

10
15
20
25
30
Length of Incarceration in Years
Cost

35

Recividism&Rate&&

Amount in U.S. Dollars

Figure 12. Recidivism Rate and Cost of LWOP for a Typical
Prisoner

40

Recidivism

Sources: Castillo, R. et al., United States Sentencing Commission, (2004). Measuring recidivism: The
criminal history computation of the federal sentencing guidelines (Release I). Washington, D.C.; Hughes,
T. A., Wilson , D. J., & Allen, J. B. U.S. Department of Justice, Office of Justice Programs.
(2001). Trends in state parole, 1990-2000 (NCJ 184735). Washington, D.C.: Bureau of Justice Statistics.
Note: This figure depicts the cost of incarceration and recidivism rate for one individual throughout an
average 39 year sentence.

20
21

Refers only to parole violations for those “55 or older.”
34 percent divided by 2 percent equals 17.

36

It is also important to note that lifers in particular have exceptionally low recidivism rates. For
example, a California Department of Corrections and Rehabilitation (CDCR) study compared
recidivism rates among prisoners released after serving life sentences with those who did not
receive life sentences. The CDCR found that lifers were 10 times less likely to be convicted of a
misdemeanor or felony within three years of release than those who did not receive life
sentences. Specifically, lifers had a re-conviction rate of 4.8%, whereas other parolees had a reconviction rate of 51.5%. Moreover, when released lifers did reoffend, the offense was very
likely to be a comparatively minor one.xlvii Other studies have also found the especially low
recidivism rates among the lifer population.22
In sum, the Sentencing Reform Act sought to address the increasing costs of Washington State’s
criminal justice system, yet the amount spent on corrections has skyrocketed, in part because of
the high cost of incarcerating the elderly. If Washington were to return to historical sentencing
standards, the State would save well over $1 million per life sentence. Our analysis suggests that
any sentence exceeding 24 years is fiscally unwise. On average, sentence of this length would
allow the average prisoner to be released at age 50. At this age, prisoners pose little risk to public
safety. What is more, prisoners released at this age could have the opportunity to qualify for
federally-funded social services. This would shift much of the fiscal burden from Washington
State taxpayers to the federal government. For these reasons, we argue that prisoners deserve to
be reevaluated and possibly released from state custody.

22

Irwin, J. (2009). Lifers: Seeking Redemption in Prison (1st ed.). Routledge.

37

V. POLICY RECOMMENDATIONS
BACKGROUND: THE ISRB TODAY
With the enactment of the SRA in 1981 and its implementation three years later, Washington
State eliminated its parole board and instituted the Indeterminate Sentence Review Board
(ISRB). The ISRB currently consists of four members with backgrounds in corrections or law
who are appointed by the governor to serve five-year terms.xlviii As noted previously, two
categories of prisoners may be considered for release by the ISRB. First, the ISRB acts as a
parole board for prisoners who committed their crimes before July 1, 1984 and were given
indeterminate sentences that included the possibility of parole (PRE prisoners). A sentence is
considered indeterminate because at the time of sentencing it is not known how much time will
be served. Instead, a maximum sentencing length was set by the judge based on statutory
maximums, and the ISRB determined the minimum amount of time a prisoner must serve before
they are granted a preliminary review by the board.xlix At the minimum sentencing date, the
offender was eligible for an ISRB hearing, which may lead to release. In 2011, there were 325
PRE prisoners in Washington State.xlix
Second, the board also reviews cases involving determinate-plus sentences, which are imposed in
cases that involve certain kinds of sex offenses committed after August 31, 2001.23, 24 In these
cases, the judge sets the minimum term the prisoner must serve. When the minimum term is

23

These are also referred to as CCB cases (Community Custody Board).
This date was determined by the passage of RCW 9.94A.507, which restructured the guidelines for sex
offender sentencing.
24

38

reached, the board holds a hearing to determine if the prisoner is ready for release.xlviii Both
determinate-plus and PRE cases have two possible outcomes: either the prisoner is released, or
the ISRB sets a future review date.
The ISRB considers several factors before granting parole to a prisoner. These include: the
likelihood that the prisoner will commit another offense, the length of time already served, the
original recommendation of the trial judge, the defendant’s participation in prison programs, the
victim and victim’s family’s concerns, behavior in prison, and threats to reoffend.xlviii The ISRB
recommends release in 45% of determinate-plus hearings and 38% of PRE hearings. This
averages to a release rate of approximately 40% of all cases heard by the board.xlix These
numbers are similar to the release rates of parole boards that hear a wider range of cases. For
example, New York State’s parole board, before which nearly all prisoners are entitled to appear,
has a release rate of 36%.l,li In New York, only 1,346 prisoners are ineligible for parole and must
serve the entirety of their sentence regardless of successful rehabilitative programming or good
behavior.
In order to develop our recommendations, we also acquired information about parole boards and
pre- and post-release rehabilitative programs offered in other states where parole continues to
exist.25 We discovered that each state has a unique parole board. The table shown in Appendix C
demonstrates the varying policies, mission statements, and board compositions of parole boards
25

A DOC or its equivalent, as well as rehabilitative programs were researched in AL, AK, AZ, CA, CO,
CT, DE, FL, GA, HI, IA, KS, LA, ME, MD, MA, ME, MI, MN, MS, MO, MT, NV, NH, NJ, NY, OH,
OK, RI, SC, SD, TX, UT, VT, WA, WI and WY. Research was conducted via the internet and personal
contact via phone interviews.

39

nationwide, and clearly shows that there is significant variation in the structure of parole across
the country. Moreover, these findings indicate that many states structure their parole boards that
allow for greater emphasis on the importance of creating rehabilitative programming and
providing an opportunity for release for prisoners who have successfully engaged in this
programming.
RECOMMENDATION I. REINTEGRATE REHABILITATION
According to the United States Department of Justice, approximately ten thousand prisoners a
week are released from state and federal prisons, all of whom will eventually find their way back
into communities throughout the nation.lii We recommend the adoption of programs and
processes before, during, and after release that adequately prepare prisoners for the challenges of
life beyond prison walls. More generally, we recommend that Washington State reevaluate the
“just deserts” punishment model embodied by the SRA. This model limits judicial discretion, deprioritizes rehabilitation, and mandates that judges disregard circumstances that may have played
a key role in the motivation and actualization of the crime.
The paramount function of the penal system should be the rehabilitation of prisoners. Individuals
who are released without reintegration guidance and the tools to effectively participate in society
may threaten public safety. Because of the holistic, multi-faceted nature of rehabilitation, we
have also incorporated pre- and post-rehabilitative programs into our recommendation that
Washington implement a PREP. This emphasis on rehabilitation has implications for sentencing
policy. Absent the possibility of sentence review and release from prison, the system provides no
incentive for prisoners to pursue rehabilitation.liv Pre-release rehabilitation, PREP board

40

evaluation, and post-release programming must function cohesively to ensure that prisoners are
afforded their greatest chance to become productive members of society. By naming this three
part process PREP, we aim to draw greater attention to the rehabilitative process while
distancing ourselves from the political failures of Washington’s former parole system.
A first step in this process would be to review and update Washington’s Department of
Corrections’ mission statement to reflect the centrality of rehabilitative goals. The current
statement emphasizes the need “to protect public safety” but fails to address rehabilitation and
reintegration.lv Many of the states we studied provide examples for Washington to follow in this
regard. For example, the Texas Department of Criminal Justice explicitly states their goal to
promote “positive change in offender behavior” and to “reintegrate offenders into society.”lvi
Alaska’s Department of Corrections mission statement emphasizes “reformative programs.”

lvii

,

while Colorado’s Department of Corrections aims for prisoners to “become law-abiding,
productive citizens”.lviii We recommend that the Washington Department of Corrections
incorporate these terms into a new mission statement.
This re-orientation should also inform pre-release programs in Washington State. Parole board
members and non-profit post-release service providers nationwide find that the four most
important programs affecting prisoners’ successful reintegration into society are: cognitive
therapy while incarcerated, addiction and anger management therapy, education opportunities,
and assistance securing housing upon release.lvix,lx Cognitive therapy involves identifying and
addressing the thoughts and feelings associated with psychological disturbances. Anger and
addiction therapies address underlying problems with social behavior and help teach coping

41

strategies to positively affect prisoners’ future lives and relationships. Educational opportunities
raise prisoners’ actual and perceived social value and impart important skills and knowledge.
One recent report found that individuals who participated in educational programs while
incarcerated were 13% more likely to obtain employment upon release and 43% less likely to
recidivate.26 The report ultimately concludes that “providing correctional education can be costeffective when it comes to reducing recidivism.”lxii
We recommend that Washington State significantly expand pre-release rehabilitative programs.
Many states offer models of how this might be done. Texas, a historically conservative state, has
an entire division within its Department of Justice dedicated to rehabilitative programs. In
addition to standard sex offense and drug treatment programs, these programs include nontraditional offerings such as faith-based pre-release programs, the “Baby and Mother Bonding
Initiative”, programs tailored to former participants in the sex industry, rehabilitation for
prisoners who have experienced solitary confinement, and opportunities to pursue higher
education within a school district that exclusively serves Texas State prisons. This is important
because prisoners who participate in correctional education programs are 43% less likely to
reoffend than those who do not.lxii We recommend that the Washington Department of
Corrections incorporate programs similar to those of Texas in order to better prepare prisoners to
reintegrate into society. We also recommend that Washington State repeal its prohibition on the
use of state dollars to support the education of prisoners.
26

Recidivism is defined in multiple ways in these studies, including rearrests, conviction, incarceration
and technical parole violations. The length of time considered varied from 6 months since release to 10
years since release. The majority of the 50 studies on which this report relied used re-incarceration as the
measure and 1-3 years as time frame. lxii

42

In addition to its Rehabilitation Programs Division, the Texas Department of Criminal Justice
also formed the Re-Entry and Integration Division. Their statement of purpose emphasizes “the
successful reentry and [re]integration of offenders into the community.” The Re-Entry and
Integration Division (RID) provides prisoners with case managers that help prisoners develop a
comprehensive release plan.27 The RID also orders birth certificates and social security cards for
eligible prisoners prior to their release. Employment opportunities for former prisoners also
increased in 2013 when Texas passed legislation that limits the liability of employers who hire
persons with criminal backgrounds.lxiii We recommend that Washington implement these
procedures in order to promote post-release rehabilitation.
Prisoners face a variety of societal, economic, and community challenges upon release from
prison. These issues include inadequate access to social programming, job opportunities,
education, assistance with substance abuse, struggles with family life, and housing. Post-release
programs enhance public safety because they provide monetary, physical, and emotional
resources to individuals who may otherwise engage in criminal behavior to fulfill their financial
and emotional needs. For this reason, any consideration of the implementation of parole, or in
our case, the PREP, must incorporate an array of programming opportunities for formerly
incarcerated individuals reentering society. In advocating for PREP, we are calling for the
creation and implementation of a wraparound service for prisoner reentry.

27

This plan deals with issues such as identification, housing, employment and education, health care,
substance abuse, transportation, clothing/food/amenities, financial resources, and support systems.

43

There are two approaches to reentry that aim to address the barriers prisoners face when they
return to society. One approach separately targets housing, employment, and substance abuse
treatment. This fragmented approach focuses on programs that address specific challenges that
formerly incarcerated individuals face during reentry. Although used regularly, this approach can
be problematic because it forces formerly incarcerated individuals to seek help from separate
service providers. Conversely, the second approach, called a wraparound approach,
simultaneously addresses reentry barriers.lxiv,lxv The purpose of this approach is to identify and
fill gaps in services, to mitigate the accessibility and usage of services, and to conserve
institutional resources.
In 2007, Washington State applied the wrap-around approach in a program called the Reentry
Housing Pilot Program (RHPP). RHPP provided recently released high-risk prisoners in
Spokane, Clark, and King counties with 12-month housing under the condition that they commit
to treatment, employment, and self-sustainability. The state also introduced programs funded by
the Housing Grant Assistance Program (HGAP) to create similar opportunities for prisoners
released in several other counties.lxvii RHPP and HGAP participants were then compared to
others in order to measure the effectiveness of these programs. After three years of evaluation,
RHPP and HGAP participants were significantly less likely than non-participants to return to
prison.lxviii These programs thus provide a model upon which post-release programming could be
extended.

44

RECOMMENDATION II. ADOPT A POSSIBLE RELEASE REVIEW PROCESS
In addition to reintegrating rehabilitation, we recommend the creation of a review board and
process that will give each lifer in Washington State the opportunity for reevaluation. The
existence of this board and process would motivate prisoners to work towards rehabilitation
while also protecting the public from prisoners who are not ready to be released.
Specifically, our recommendation is that the board re-adopt Washington State’s past definition of
minimum duration of confinement as established by legislative action.x This would mean that
those serving LWOP sentences would be eligible for evaluation after 13 years and 4 months
served. We also recommend the adoption of a review board consisting of seven members, at least
five of whom must be present during all PREP hearings. These board members should be
appointed by the Governor to four year terms, as this will mitigate political pressures that board
members may feel if it were an elected position. A board consisting of members with varied
professional backgrounds and experiences will reduce personal bias in board decisions and
protect against the arbitrariness of Washington’s former parole system.xvi,xiv We also recommend
that a third party, nonpartisan adjudicator audit and evaluate board decisions on an annual basis.
We recognize that any system reliant on humans has the potential to involve bias. Nonetheless,
the purpose of these recommendations is to mitigate the effects of bias and to enhance public
confidence in the board’s decisions.
Our recommended board would consist of a community member with a social service
background, a retired judge, a psychologist, two former Department of Corrections employees,

45

an addiction specialist, and a formerly incarcerated person. This diversity of skill sets and
backgrounds assures a holistic evaluation of rehabilitative progress. To alleviate potential costs
associated with prisoner transportation and technology, we recommend that the board conduct
hearings using one of three recommended formats.28
A recent national trend in parole hearing procedures enhances the victim’s role in their
assailant’s hearing. For example, California’s 2009 Victim’s Bill of Rightslxix extends special
considerations for victims and their families in parole hearings.lxx Subsequently, multiple other
states have adopted similar legislation.xxi Victim involvement has unfortunately led to the
assumption that “the offender’s gain is the victim’s loss” and vice versa.

lxix

While the victim’s

preferences arguably should be considered at the time of sentencing, the prisoner’s rehabilitative
progress should be the primary focus of the parole hearing. Other states have recognized and
embraced the need for this shift in focus. For example, New Jersey’s legislature will only use the
victim’s written statement if they identify a substantial or pressing issue.29 lxii,lxiii In addition, we
recommend that victims, in conjunction with a state sponsored victim's advocate, be allowed to
contact the board through a written statement. This will allow the board to evaluate the victim’s
concerns without turning the parole hearing into a retrial of the original crime.

28

Colorado has conducted research and found no measurable differences between having hearings over
the phone, through video conferences, or in person.vii
29
The report may include a written statement concerning the continuing nature and extent of any physical
harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss of
earnings or ability to work suffered by the victim and the continuing effect of the crime upon the victim's
family.

46

In an attempt to emphasize the importance of rehabilitation, we suggest that the board focus on
the latter third of time served. This recommendation stems from recognition of the fact that
prisoners are more likely to receive infractions in the first two thirds of their sentence due to
difficulties adjusting to prison life. By weighing the latter third of time served, the board would
recognize that rehabilitation is a process. In addition to this weighted evaluation process, we
recommend the board focus on the prisoner’s involvement within the prison community and
participation in rehabilitative programs. This will ensure that the board values rehabilitation over
the course of a sentence above minor infractions. Under our proposed evaluative board, prisoners
denied parole will receive suggestions for improvement and a mandatory follow-up review date
scheduled within a maximum of five years of the previous review. This timeframe sets an
obtainable goal for the prisoner, incentivizes good behavior, and ensures public safety by only
releasing prisoners who are prepared to reenter society.
RECOMMENDATION 3: REPEAL
TIME FOR ARMED CRIME ACTS

THE

PERSISTENT OFFENDER ACCOUNTABILITY

AND

HARD

It is imperative that Washington State re-evaluate its sentencing practices. The POAA accounts
for half of the official LWOP cases in Washington State, many of which involve crimes other
than homicide. We also recommend reforming the Hard Time for Armed Crime Act of 1995.
Additional time for weapons enhancements must be proportional to the offense and properly
restricted. For example, our data identified an individual who received over 1,000 months (or 83
years) from weapons enhancements alone. While this case is an outlier, it demonstrates the
harshness of weapons enhancements in sentencing. If repeal of this law is not feasible, allowing

47

judges to allow sentences flowing from weapons enhancements concurrently rather than
consecutively may provide some relief.
V. CONCLUSION
In Washington State, the implementation of the Sentencing Reform Act, coupled with the
adoption of harsh sentencing laws, led to a dramatic rise in the number of people sentenced to die
in prison. Lifelong imprisonment without the possibility of review arguably denies the
fundamental human right to dignity. In fact, the European Court of Human Rights recently ruled
that life without the possibility of parole sentences violate human rights because they are
“incompatible with the provision on human dignity in the basic law for the state forcefully to
deprive a person of his freedom without at least providing him with a chance to someday regain
that freedom.”30 Washington State’s sentencing practices are thus not only fiscally imprudent,
but, according to international human rights standards, are also in violation of the human right to
dignity. We recognize that deciding if LWOP sentences constitute a human rights violation is a
contentious and ongoing debate. However it is impossible to ignore that fact that life without
parole eliminates prisoners’ chance to go in front of a review board and demonstrate how they
have grown and changed since the time of sentencing. Denying this opportunity to an already
invisible population is, we contend, morally costly to the state of Washington.

30

See Castle, S. (2013, July 9). “Court Rules Against Britain in Life Terms for 3 Convicts.” The New
York Times.

48

In addition, lifelong imprisonment without the opportunity for review is disproportionately
imposed on black men, is very expensive, and yields little in terms of public safety. Moreover,
our findings suggest that one of the primary goals of the SRA – achieving greater uniformity in
sentencing outcomes – has not been achieved. It thus appears that the SRA has entailed a very
significant cost – the growth of the LWOP population – but has not achieved its primary
objective.

A Post-Rehabilitation Evaluation Process (PREP) is the most immediate and effective remedy to
this statewide problem. We recognize that current sentencing laws cannot accommodate a fullyfunctioning parole board in the short term. As an interim step, implementation of the PREP
would propel the adoption of rehabilitative programming and a review processes that may
ultimately comprise a successful parole system. Although the return of a comprehensive parole
board after over three decades may be controversial, public concern surrounding the issues of
mass incarceration has continued to increase regardless. The use of LWOPs and extreme
sentences have played a notable role in contributing to the human and financial costs associated
with mass incarceration. Controversial first steps may need to be taken in order to ultimately
address a far more urgent, problematic issue facing our state and nation. PREP would begin to
amend the effects of the elimination of parole and other legislation on the Washington LWOP
population, a first step towards creating a policy framework aimed at enhancing human rights,
public safety, fiscal responsibility, and rehabilitation.

49

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XLVI. Hughes, T. A., Wilson , D. J., & Allen, J. B. U.S. Department of Justice, Office of Justice
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LVII. Alaska Department of Corrections. (n.d.) Retrieved April 18, 2015 from
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LXXXV. U.S. Constitution Amendment VI

57

APPENDIX A. ACQUIRING DATA REGARDING PAROLE BOARDS
As noted previously, we interviewed administrators who are knowledgeable about parole boards
in all states where such boards continue to exist. The interviews were semi-structured: every
interview began with the same questions, but due to natural flow of conversation, we allowed the
discourse to shift when it needed to. The questions that we started from were:
1)

Do you consider parole in your state to be a success? If yes, how do you define
success?

2)

Of those that are seen by the parole board, how many are released?

3)

Do you see certain aspects of your parole board as more or less effective?

4)

Is there anything that you would change about the current system?

5)

Do you feel that parole motivates good or bad behavior from within prison?

6)

If your state has recently brought back parole, why? How has the transition been
for members of the DOC?

7)

Would you like to see parole boards given broader jurisdiction, or would you
rather that their powers be limited?

We also acquired information about parole board structure and process from the following
websites:
Alabama - http://www.doc.state.al.us/
Alaska - http://www.correct.state.ak.us/corrections/index.jsf
Arizona - https://corrections.az.gov/
Arkansas -- http://adc.arkansas.gov/Pages/default.aspx
California - http://www.cdcr.ca.gov/
Colorado - http://www.doc.state.co.us/
Connecticut - http://www.ct.gov/doc/site/default.asp
Delaware - http://www.doc.delaware.gov/

58

Florida - http://www.dc.state.fl.us/
Georgia - http://www.dcor.state.ga.us/
Hawaii - http://dps.hawaii.gov/
Idaho - http://www.idoc.idaho.gov/content/probation_and_parole
Illinois - http://www.illinois.gov/idoc/Pages/default.aspx
Indiana - https://indianasavin.in.gov/Default.aspx
Iowa - http://www.doc.state.ia.us/
Kansas - http://www.doc.ks.gov/
Kentucky - http://corrections.ky.gov/Pages/default.aspx
Louisiana - http://www.doc.louisiana.gov/
Maine - http://www.state.me.us/corrections/
Maryland - http://www.dpscs.state.md.us/
Massachusetts - http://www.mass.gov/eopss/agencies/doc/
Michigan - http://michigan.gov/corrections
Minnesota - http://www.doc.state.mn.us/PAGES/
Mississippi - http://www.mdoc.state.ms.us/
Missouri - http://doc.mo.gov/
Montana - http://www.cor.mt.gov/default.mcpx
Nebraska - www.corrections.nebraska.gov
Nevada - http://doc.nv.gov/
New Hampshire - http://www.nh.gov/nhdoc/
New Jersey - http://www.state.nj.us/corrections/pages/index.shtml
New Mexico - http://cd.nm.gov/
New York - http://www.doccs.ny.gov/
North Carolina - http://www.doc.state.nc.us/DOP/index.htm
North Dakota - http://www.nd.gov/docr/
Ohio - http://www.drc.ohio.gov/
Oklahoma - http://www.ok.gov/doc/
Oregon - http://www.oregon.gov/doc/pages/index.aspx
Pennsylvania - http://www.cor.pa.gov/Pages/default.aspx#.VVqQpGYbsnI
Rhode Island - http://www.doc.ri.gov/index.php
South Carolina - http://www.doc.sc.gov/pubweb/
South Dakota - http://www.doc.sc.gov/pubweb/
Tennessee - http://www.state.tn.us/correction/
Texas - http://tdcj.state.tx.us/
Utah - http://tdcj.state.tx.us/
Vermont - http://www.doc.state.vt.us/
Virginia - http://vadoc.virginia.gov/offenders/
Washington - http://www.doc.wa.gov/
West Virginia - http://www.wvdoc.com/wvdoc/
Wisconsin - http://doc.wi.gov/Home
Wyoming - http://doc.state.wy.us/

59

APPENDIX B. CASE LAW REGARDING PROSECUTORIAL VINDICTIVENESS
The SRA is a determinate sentencing scheme that transfers discretionary power from the judge to
the prosecutor. This gives the prosecutor greater power to negotiate plea bargains. The data
analyzed show that in Washington State, 95% of felony cases are resolved through plea bargain.
By contrast, two thirds of LWOP cases were adjudicated through jury trials. This correlation
between life sentences and plea deal rejections raises concerns about the viability of defendant's’
right to a trial.
The term “prosecutorial vindictiveness” refers to a situation in which the government acts
vindictively against a defendant by additional charges against them when the defendant invokes
a legally protected right.31,

lxxv

The Supreme Court has established two ways in which a

defendant can show prosecutorial vindictiveness. First, the defendant can show “actual
vindictiveness” on the part of a prosecutor, which is difficult to prove. Second, the defendant can
establish a “presumption of vindictiveness” given the facts and circumstances of the case. A
presumption of vindictiveness means that the state must bring “objective evidence” to justify the
prosecutor’s actions.lxxvi The timeline depicted below demonstrates the development of this
concept of vindictiveness over time.

31

This can include their decision to attack a conviction or to a trial de novo among other situations. This
generally entails the prosecution filing additional charges against the defendant after they have chosen to
exercise this right, equating in a longer or more severe punishment upon conviction.

60

Figure B1: Prosecutorial Vindictiveness Timeline

North Carolina v. Pearce (1969). This case introduced the concept of judicial vindictiveness.
The court decided that in order to defeat the presumption of vindictiveness, the prosecutor must
supply new evidence. If the defendant fears a vindictive prosecution “for having successfully
attacked his first conviction,” in trial, then this may “unconstitutionally deter a defendant’s
exercise of the right to appeal,” constituting a Fourteenth Amendment due process violation.lxxvii
Blackledge v. Perry (1974). The court recognized that the vindictiveness precedent can also
apply when there is no actual “retaliatory motivation.” lxxvi After a physical altercation, Perry was

61

charged with misdemeanor assault with a deadly weapon. When he sought a trial de novo, the
prosecution increased the charges to felony assault with a deadly weapon with intent to kill or
inflict serious bodily injury. The Blackledge majority first cited Pearce’s ruling that “fear of such
vindictiveness” could discourage a defendant from exercising their right to appeal a conviction
due to “retaliatory motivation on the part of the sentencing judge” and thus violate their due
process right. lxxvii The court then determined that this was applicable to Blackledge. Recognizing
that the defendant had the right to a trial de novo under state law for a misdemeanor charge, the
Court determined a fear of the State bringing more serious charges would violate the defendant’s
Fourteenth Amendment Due Process rights.lxxvi
Bordenkircher v. Hayes (1978). During negotiations, the prosecutor warned that the defendant
would obtain additional charges carrying a harsher punishment if he chose to reject the plea deal,
failing to “save the court the inconvenience and necessity of a trial.” The defendant rejected the
deal. Subsequently, a jury trial convicted him of all charges and the judge ordered a life sentence
under Kentucky’s recidivist statute. The prosecutor had all of the evidence at the time of the
original indictment and only added these more severe charges after the defendant rejected the
plea deal. Nonetheless, the court determined that the standard process of plea negotiation occurs
prior to trial, thus changes made during this time are permissible. Differentiating Bordenkircher
from Pearce and Blackledge, the court suggests that prosecutorial vindictiveness is unlikely to
apply in the pretrial setting.lxxviii
United States v. Goodwin (1982). This case echoes the Bordenkircher ruling and rejected the
notion that filing additional charges after a defendant refuses a guilty plea gives rise to a

62

“presumption of vindictiveness.” In this case, the defendant rejected a plea deal in favor of trial
and the prosecutor increased the charges. The court largely cited Bordenkircher when it stated
that it was unlikely that there would be a presumption of vindictiveness in the pretrial setting,
compared to the post trial setting.lxxix
State v. McDowell (1984). Washington State Supreme Court affirmed the Goodwin ruling, thus
incorporating the ruling into Washington State case law. The defendant refused a diversion
program for a reckless endangerment misdemeanor. At trial in the Superior Court of
Washington, the prosecutor filed information to charge the defendant with second-degree assault.
The defendant filed to dismiss this charge on the grounds of prosecutorial vindictiveness, but the
appeals court and Supreme Court of Washington affirmed that there had been no due process
violations, affirming Goodwin’s decision regarding the pretrial setting.lxxx
U.S. v. Meyer (1987). This case addressed the question of the burden of proof in cases involving
allegations of prosecutorial vindictiveness. The Court ruled that the State failed to bring proof of
non-vindictive action, thus a presumption of prosecutorial vindictiveness stands. The court
recognized that a prosecutor’s decision to significantly change the charges against a defendant,
when taken into consideration with other facts, can, but will not always, qualify as a presumption
of vindictiveness. Meyer relies heavily on a discussion of Goodwin, noting the cases’ similarities.
The court determined “the facts indicate a realistic likelihood of vindictiveness,” and thus a there
is a presumption of which the government must “come forward with objective evidence
justifying

the

prosecutorial

63

action.”lxxxi

State v. Korum (2006). Washington State Supreme Court ruled that no presumption of
vindictiveness occurred. State v. Korum is an important case for Washington State case law
because it sets a precedent that makes it difficult for defendants to prove a presumption of
vindictiveness. In this case, the court chose not to rule on whether prosecutorial vindictiveness
could occur in the pretrial setting (but recognized that Bordenkircher, Goodwin, and Washington
State’s McDowell suggested that it cannot). Additionally, Korum also recognized that McDowell
suggests the defendant must prove actual vindictiveness and not just a presumption of
vindictiveness. However, the court again declined to make a concrete decision on this issue.
Instead, the court ruled that no presumption of vindictiveness existed in Korum. The court cites
Washington State’s SRA, which notes that the “other charges should be filed if they are
necessary to strengthen the State’s case at trial”. Thus, the court determined that the
prosecution’s decision to add charges after Korum withdrew his plea deal in favor of a trial was
“not only within the prosecuting attorney’s discretion,” but also “supported by the SRA
guidelines and strengthened the State’s case.” 32, lxxxii
Individuals sentenced to life without parole sentences are significantly more likely to exercise
their right to a jury trial, which can make them more vulnerable to “prosecutorial
vindictiveness.” The defendant’s decision to go to trial can prove consequential when
prosecutors add charges as reprisal for rejecting a plea deal. Although United States v. Meyer.lxxxi
recognized ‘prosecutorial vindictiveness’ at the federal levellxxxii, this case is the exception and
32

The Court also cited the SRA by emphasizing its purpose which is to "[e]nsure that the punishment for
a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history."
(7).

64

not the rule. Many prisoners we spoke with reported that they received additional charges after
exercising their Sixth Amendment right.
An example of disparity between the sentence offered during plea bargaining and the one issued
at trial is the case of Nick Hacheney, a prisoner at the Washington State Reformatory.
Prosecutors initially offered Hacheney a plea deal of 84 months, but he later received LWOP at
trial. Hacheney appealed and received a sentence of 320 months, still nearly four times longer
than the original plea offer.lxxxiii Hacheney’s case illustrates the human consequences of
‘prosecutorial vindictiveness’ as established in previous cases. The prosecutor originally
determined that Hacheney would no longer pose a threat to society after seven years of
incarceration, but he was sentenced to LWOP at trial. Hacheney’s case demonstrates the need to
reevaluate whether current practices serve the SRA’s goal to “[p]romote respect for the law by
providing punishment which is just.”lxxxiv. Although the Sixth Amendment guarantees “the right
to a speedy and public trial, by an impartial jury”lxxxv, Hacheney most likely received a
significantly longer sentence for exercising this right.

65

APPENDIX C.

Many states structure their parole boards that allow for greater emphasis on the importance of
creating rehabilitative programming and providing an opportunity for release for prisoners who
have successfully engaged in this programming. Table C1 summarizes the wide variation in
prison practices and parole processes across selected states that have retained parole.

66

TABLE C1. VARIATION IN PRISON PROGRAMMING AND PAROLE BOARD STRUCTURE
WA

TX

CO

NJ

AK

MA

EDUCATIONAL OPPORTUNITIES AVAILABLE TO PRISONERS
GED

X

X

X

X

X

X

Vocational Programs

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Higher Education

X

VICTIM IMPACT STATEMENTS
Written Victim Impact
Statement Allowed
Verbal Victim Impact
X
Statement Allowed
BOARD MEMBER COMPOSITION
Law

X

X

Appointed by Districts

X
X

Corrections/Justice

X

X

Social Work
Mental Health

X

X

X

X

X

X

X

X

X

MISSION STATEMENT EMPHASIS
Reform

X

Reintegration

X

Behavioral Change

X

Public Safety

X
X

X

X

X

POST-RELEASE PROGRAMS
Left to private parties

X

X

Limited liability for
employers of the
formerly incarcerated
Case managers

X
X

Reentry prep courses

X

RELEASE RATES

WA
CCB

WA
PRE

TX
(2014)

CO
(2014)

NJ
(2014)

AK
(2013)

MA
(2013)

Parole Release Rate

45%

38%

38%

36%

53%

41%

59%

2

3

 

 

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