By Paul Kiefer

Last spring, the state legislature passed a measure allowing county prosecutors to ask judges to resentence inmates whose sentences “no longer advance the interest of justice.” The lawmakers who drafted the bill cast it as a tool to mitigate decades of harsh sentencing—and, they hoped, a way to recognize rehabilitation as the cornerstone of Washington’s criminal justice system.

When ‘tough-on-crime’ laws came into fashion across the United States in the ’80s and ’90s, Washington was no exception. In 1984, the state legislature dissolved Washington’s parole board, cutting off a key path to early release for inmates in the state; only thirteen other states have abolished parole. Most other options for early release are less flexible: inmates with clean disciplinary records can shave off fifteen percent of their sentence, and the state’s Clemency and Pardons Board hears two or three dozen cases per year, though they rarely grant clemency. More recent efforts to pass resentencing laws—including the legislation that passed last spring—are an attempt to open new paths to reduce sentences that no longer seem appropriate.

A month after the bill passed, Kimothy Wynn wrote a letter to Pierce County Prosecutor Mary Robnett asking her to reconsider his sentence.

Wynn, now 43, has spent the past two decades in prison serving a 38-year sentence for a gang-related shooting in a Tacoma alley in 1999.

In his letter to Robnett, Wynn wrote that he believed that the sentencing standards in place during his trial were excessive. He had spent half his life in prison for a serious mistake—one he regretted but that hadn’t injured anyone, since the targets of the shooting escaped unharmed. But because inmates in Washington don’t have the option of parole, Wynn wrote, he never had a chance to demonstrate that he deserved a a second chance. The new law, he told Robnett, could be his chance to join his wife and stepchildren on the outside. “Please let my case be one of the positive examples of why this bill was written,” he wrote.

In October, Wynn received a reply from the Pierce County Prosecutor’s Office. Though he met most of their criteria to be eligible for resentencing, a review committee declined Wynn’s request.

In the past year, hundreds of inmates across Washington have sent similar letters to county prosecutors. Most were rejected outright; many others, including in King County, are still awaiting a prosecutor’s decision. Since the passage of the 2020 law, SB 6164, fewer than a dozen people have been resentenced as a result.

The bill’s original sponsor, Sen. Manka Dhingra (D-45, Bellevue), told PubliCola that she didn’t have specific outcome in mind when she drafted the measure; the goal, she wrote, was to “see who would benefit” from the law in its preliminary form, and then analyze the results to shape future legislation. But Wynn and other inmates saw the law as a reason to be hopeful, not a preliminary test of prosecutors’ willingness to reconsider past sentences. “This past year has been heartbreaking, sitting here in prison hearing person after person getting denied for [resentencing] when I know they are deserving of this chance,” he wrote in a letter to PubliCola. “[Yet] another year that criminal justice and sentencing reform is just talked about and never anything done…”

There doesn’t seem to be a singular reason the bill has had such a negligible impact so far.

Prosecutors in many of the state’s smallest counties, such as Skamania, Stevens and Pend Oreille, haven’t gotten around to creating their own eligibility criteria for resentencing and instead review cases individually; those prosecutors have only received a handful of resentencing requests, none of which they approved.

In other counties, including King, prosecutors have created lists of criteria that might make a person eligible (or ineligible) for resentencing. For example, elderly or terminally ill inmates, those sentenced to 25 years or more for a nonviolent offense, and victims of human trafficking or domestic violence might be candidates for reduced sentences, while those whose sentences included firearms enhancements might not.

Not all prosecutors agree about how far their discretion extends. Kitsap County Prosecutor Chad Enright, for example, believes that his office can’t pursue resentencing for anyone facing a mandatory minimum sentence, including people sentenced to life under Washington’s three-strikes law. Enright said he turned away most of the 46 people who contacted his office to request resentencing “because their sentence was already as low as it could go under the current state of the law.”

He says many of those who’ve asked his office for new sentences simply don’t understand the limits of the law. “Understandably, the people writing [requests for resentencing] are unclear about whether they’re eligible,” he said. “I don’t blame them for giving it a shot.”

Many Washington prosecutors who have started writing internal standards for resentencing agree with Enright. But the King and Pierce County prosecutors’ offices are notable exceptions: neither office automatically rejects people serving mandatory minimum sentences.

Carla Lee, the head of the the Sentence Review unit in the King County Prosecutors’ Office, says her team is willing to argue in court that SB 6164 allows prosecutors to request a reduction of any sentence that “no longer advances the interest of justice,” though she added that neither she nor Enright can be certain about the limits of the law. “We’re in the minority, but you have two schools of thought there,” she said. “If the legislature wanted to clarify that, it could be very helpful.”

The COVID-19 pandemic itself has also seriously slowed the implementation of SB 6164, which passed shortly after the state entered lockdown last spring. In Thurston County, an outbreak of infections among prosecutorial staff and the scramble to adjust to virtual court hearings prompted the prosecutor’s office to triage its workload. As a result, resentencing requests fell to the bottom of the pile; 21 inmates are still waiting for a response from the Thurston County Prosecutor’s Office.

In King County, Lee said her unit tried to keep resentencing requests moving, but still hasn’t been able to bring any resentencing cases before a judge. “Judges told us to hold off on bringing them these discretionary cases, because they couldn’t manage them when coupled with all the other chaos before them because of the pandemic,” she said. As a result, at least 70 people who might qualify for resentencing are waiting for hearings. In one case, Lee’s unit found a workaround: after a judge refused to hold a resentencing hearing for a man with terminal cancer who was scheduled for deportation, her unit turned to the governor’s clemency board to release the man to his family before he died.

A third obstacle slowing the implementation of the now year-old law will persist long after the pandemic is over: Few people in prison can find or afford attorneys to help with their resentencing requests. The Clark County Prosecutor’s Office, for example, estimates that only ten of the roughly 70 people who have asked to be considered for resentencing had lawyers; of the six people the office agreed to resentence, five did.

“If you’re negotiating the post-conviction world, including trying to bring forward [an SB 6164] request, you really need a lawyer on the outside to walk alongside you through the process,” said Jennifer Smith, the Executive Director of the Seattle Clemency Project, which has represented inmates requesting resentencing under last year’s law. Asking inmates to both play the role of attorney and explain how they’ve turned themselves around, said Smith, is a recipe for failure.

Cindy Arends Elsbery, the Felony Resource Attorney for the Washington Defenders’ Association, agrees with Smith. “It’s very problematic that the legislature did not provide funding for any kind of defense representation,” she said. Though she hasn’t represented any inmates requesting resentencing herself, she has led training workshops for attorneys interested in taking on SB 6164 cases—when they have the opportunity to do so.

From Wynn’s perspective, his first attempt to request resentencing was doomed from the start because of his lack of legal representation. Shortly after the Pierce County Prosecutor’s Office rejected his first request, Wynn hired an attorney to begin re-working his argument for a second pass. “I scraped up everything  I could to acquire legal representation,” he wrote. “It shouldn’t take an individual to spend thousands of dollars to get an attorney for the prosecutors to actually be willing to listen and actually look at us, but it does.”

There are no-cost options for inmates who want to improve their chances of receiving a resentencing hearing: Smith’s office provided pro bono support for resentencing requests in a handful of counties, for instance. And in some cases, prosecutors can proactively ask judges to reconsider an inmates’ sentence; the most successful example took place in Benton County, where prosecutor Andy Mills recommended a man named Michael Pourier—serving 30 years as the accomplice to an assault—for resentencing and recruited a public defender to represent Pourier before a judge.

While both Smith and Arends Elsbery suggested that lawmakers could make SB 6164 more meaningful with resources for public defenders and prosecutors, they also argued that some other adjustments to the law—particularly adjustments to clarify who is eligible for resentencing—could be risky.

From Smith’s perspective, the “interest of justice” standard at the heart of SB 6164 is most valuable because of its vagueness. “When things get defined really clearly,” she said, “they just start cutting people out.” While the loose standard may allow some prosecutors to set narrow criteria for eligibility, Smith said the standard also allows prosecutors to cast a wider net.

Lee also believes that lawmakers should tread cautiously if they circle back to address holes in SB 6164. “I know other prosecutors think they need more direction before they take anything to court,” she said, “but we like the flexibility of the ‘interest of justice’ standard because it allows us to proactively identify cases we think are no longer in the interest of justice.”

Among Lee’s goals: using the carte blanche of the ‘interest of justice’ to provide more women—and specifically domestic violence victims—with opportunities for resentencing. Of the 70 people currently on her unit’s list of eligible candidates for resentencing, Lee said that only two are women; she hopes her team can fix that gender disparity by casting a wider net.

Wynn, on the other hand, thinks that lawmakers could repair the failures of SB 6164 by leaning into eligibility requirements, not shying away from them. “This law should be amended and remove ‘prosecutors’ discretion’ and should list specific criteria to qualify,” he wrote. Entrusting prosecutors to implement a discretionary resentencing bill in good faith, he argued, is bound to fail.

And Smith pointed out that convincing prosecutors to put their new powers to use is still an uphill battle. “Prosecutors are not culturally accustomed to going back and undoing convictions they fought for,” she said.

But any plans to revamp SB 6164 in the near future may be foiled by a new source of pressure on courts: the oncoming wave of resentencing hearings spurred by more recent Washington State Supreme Court decisions and legislative action. “Resentencing is the word for 2021,” said Arends Elsbery, but new resentencing efforts have placed SB 6164 on the back burner once again.

In some cases, people who requested resentencing under SB 6164 will ultimately be resentenced for another reason. Wynn, for instance, will have a resentencing hearing as a result of the state supreme court’s landmark Blake decision that ruled Washington’s longstanding drug possession laws unconstitutional; because a drug possession charge on his criminal record contributed to his harsh prison sentence, a judge will likely shave a short amount of time from the remainder of Wynn’s sentence.

Other inmates who requested resentencing under SB 6164 will instead be resentenced as a result of a 2020 state supreme court ruling requiring judges to review the sentences of anyone charged as adults for crimes they committed while underage. And even more will see their sentences reduced because of a 2021 law that requires judges to resentence anyone facing life in prison under Washington’s three-strikes law if one of their “strikes” was a second-degree robbery charge; that group includes 21 of the 70 people on Lee’s list of candidates for resentencing under SB 6164.

But the new approach to sentencing reform comes at a cost for any inmates who fall outside of those categories. As judges process thousands of resentencing hearings required by the state supreme court and new state law, other inmates who could easily qualify for resentencing will continue to wait on the sidelines.