If you are serving a long sentence in Washington state, and if you have exhausted all of your appeals you may want to pursue a grant of clemency by the Governor or a motion for resentencing under a new law, SB6164, which allows the prosecutor to move for a new sentence in your case. The state constitution allows the governor to grant a commutation of a sentence (Clemency) as well as to grant pardons in extraordinary cases. The second avenue comes in the form of a new law that took effect June 11, 2020 (SB 6164) that allows prosecutors to petition the court for resentencing if the original sentence no longer serves the interests of justice.
Some cases may start out as clemency petitions but clients may be able to get more immediate relief through the 6164 process. Jennifer has handled cases that begin as clemency petitions and then are being considered for more expedient relief under SB 6164.
Whether you are seeking clemency or may be a candidate for resentencing in Washington, Jennifer’s specific knowledge of the clemency process and the process for resentencing under SB 6164 will help you present your strongest case. Jennifer co-wrote a manual for lawyers pursuing clemency for their clients and she has been active in the ongoing dialogue with prosecutors about how SB 6164 will be applied in Washington state.
What is the Process for Pursuing Clemency?
Pursuing clemency is a process that takes several steps, usually over 12-18 months. The first phase is learning about the client’s underlying offense or offenses that gave rise to their sentence. A grant of clemency normally requires a demonstration that the client has undergone significant personal transformation since committing their offense and so the attorney must learn the client’s life story – both the story of their life before the offense they are serving their sentence for, and how their life has changed during the years the sentence has been served. The attorney may have to compile records regarding the underlying conviction or convictions, medical records and disciplinary records from within the Department of Corrections. The attorney will have to work with the client to formulate a release plan that will address all of the client’s needs if the client is released and will address housing, employment and any treatment needs. The attorney will have to procure letters of support about the client. Finally, the attorney will have to draft a petition to the Clemency and Pardons Board (CPB). In the course of this process, the attorney will have to connect with the elected prosecutor in the county where the conviction was obtained, to find out what the prosecutor’s position will be on a request for clemency.
Once a petition is submitted to the CPB, the client will wait to find out if he or she has been granted a hearing before the CPB. The majority of people who submit petitions to the CPB are not granted hearings, but a small number do win the opportunity to present their case before this Board. If a hearing is granted, the attorney will organize the client’s support system to attend the hearing. A few key members of the support system will be prepared to testify before the CPB. The client will be prepared to testify and the attorney will prepare to make a presentation to the CPB.
At the conclusion of the CPB hearing, the Board will take a vote on their recommendation to the Governor. The Board can recommend release or can vote against relief. In some cases, the Board indicates that the client is not yet ready for release but can come back after three years to try again.
If the CPB recommends release, this is simply the Board’s recommendation to the Governor. An experienced attorney will then make contact with the Governor’s counsel who deals with clemency cases to find out what can be done to assist and expedite the Governor’s review of the case. If the Governor agrees to commute the sentence, the Governor will sign a commutation order. Commutation orders often provide for a process where the client “steps down” over a period of 6-18 months from a higher custody level to lower levels of custody and work release before being released to the community. Clients who do obtain release are usually subject to conditions of release and a term of supervision.
In considering petitions, the Clemency and Pardons Board looks at factors such as:
- The seriousness of the offense;
- The impact on the victim(s) and the victim(s) position on release;
- The prosecutor’s position on release;
- Whether there is a significant and documented need for clemency;
- Acceptance of responsibility, remorse, and atonement;
- Personal development and positive life changes since the offense occurred;
- The offender’s criminal history and other relevant background;
- Whether the individual has complied with all obligations imposed by the court, including payment of fines and restitution;
- The amount of time the client has served in custody toward the sentence;
- The age of the client;
- The client’s conduct in prison, including education, programming, good works and disciplinary infractions;
- The client’s support system;
- The client’s release plan.
When seeking clemency or a pardon it is helpful to work with an attorney experienced in filing petitions with the Clemency and Pardons Board. Jennifer Horwitz can craft a petition to the Clemency and Pardons Board that presents a compelling case for clemency or a pardon, including persuasive facts and supportive materials. Jennifer Horwitz has co-written a manual on clemency cases and has represented a client who was granted release. Jennifer is also handling a clemency case that may convert to a 6164 motion by the prosecutor.
Prosecutor Motion for Felony Resentencing Under SB 6164
A new law, SB 6164, provides prosecutors with discretion to seek resentencing in felony cases. The law took effect on June 11, 2020, and will be a path to release for some people previously convicted and serving sentences on felonies. A client seeking resentencing may also be a candidate for a clemency petition if a prosecutor will not agree to make a motion for resentencing in their case.
SB 6164 provides prosecutors with discretion to seek a new sentence for someone if his/her original sentence “no longer advances the interests of justice.” The intent of the law is to advance public safety through punishment, rehabilitation and restorative justice. The law is also designed to make sure, even with changes in laws and the passage of time, that sentences remain proportionate to the crime and are not out of step with other sentences imposed for similar offenses by similarly situated individuals.
SB 6164 lists factors that the court may consider in deciding whether or not to grant a prosecutor’s motion for resentencing. Those factors include the following:
- The inmate’s disciplinary record;
- The inmate’s record of rehabilitation while incarcerated (treatment, programs and good works within prison);
- Information about age, time served and physical condition and whether this reduces the inmate’s risk of future violence;
- Changed circumstances since the original sentence (this may include serious medical conditions and underlying conditions putting someone at risk for consequences of infection with COVID-19);
- Reasons the original sentence no longer serves the interests of justice.
This path to release is an alternative to seeking clemency, but requires very similar preparation. An attorney representing someone seeking release under SB 6164 will need to compile medical and disciplinary records, proof of participation in programming and/or treatment, and character letters. The attorney will need to work with the client to formulate a release plan. Rather than writing a clemency petition and representing the client before the Clemency and Pardons Board, the attorney will put together a packet to persuade the prosecutor to make the motion and will have to prepare for the hearing before a judge. An unsuccessful representation under SB 6164 may be easily converted to a clemency request if the prosecutor does not want to bring a motion. Conversely, a clemency case that has the support of the prosecutor could end up being brought as a motion under SB 6164.
Jennifer Horwitz has extensive experience representing petitioners seeking clemency and this translates easily into representing clients on motions for resentencing. She is currently accepting new cases for evaluation of SB6164 motions for release of those convicted of Washington state crimes.