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AGO 1953 No. 27 - May 04, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

JURISDICTION OF THE BOARD OF PRISON TERMS AND PAROLES ‑- HABITUAL CRIMINAL ‑- JURISDICTION OF THE BOARD OF PRISON TERMS AND PAROLES TO PAROLE AN INMATE CONVICTED UNDER HABITUAL CRIMINAL STATUTE.

 (1) The Board of Prison Terms and Paroles has jurisdiction to parole a person convicted of being an habitual criminal after said person has been confined for a minimum period of fifteen years less time credit reduction from the term of imprisonment fixed by the Board.

 (2) Section 1, chapter 238, Laws of 1951, provides that lifers, after serving twenty years, less one‑third off for good behavior, may appear before the board for parole consideration, may also be applied in cases of this kind.

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                                                                    May 4, 1953

Dr. Henry H. Ness
Chairman
Board of Prison Terms and Paroles
614 County-City Building
Seattle 4, Washington                                                                                                                Cite as:  AGO 53-55 No. 27

 Dear Sir:

             This is to acknowledge receipt of your letter of March 17, 1953, in which you request our opinion upon the following questions:

             1. Does the board of prison terms and paroles have jurisdiction to parole a person convicted under section 2, chapter 92, Laws of 1947, relating to habitual criminals, or, is the board without jurisdiction until the person has served two-thirds of his minimum term.

             2. Does section 1, chapter 238, Laws of 1951, relating to the parole of life term prisoners, apply in cases of this kind.

             Our conclusions may be summarized as follows:

             1. The board of prison terms and paroles has jurisdiction to parole a person  [[Orig. Op. Page 2]] convicted of being an habitual criminal within the meaning of the statute which provides for mandatory life imprisonment for such habitual criminals after said person has been confined for a minimum period of fifteen years, less time credit reductions.

             2. Section 1, chapter 238, Laws of 1951, which provides that lifers, after serving twenty years, less one‑third credit for good behavior, may appear before the board for parole consideration, does not apply to cases of this kind.

                                                                      ANALYSIS

             RCW 9.95.040 provides:

             "Within six months after the admission of a convicted person to the penitentiary or the reformatory, the board of prison terms and paroles shall fix the duration of his confinement.  The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense of which he was convicted or the maximum fixed by the court where the law does not provide for a maximum term.

             "The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

             "* * *

             "(3) For a person convicted of being an habitual criminal within the meaning of the statute which provides for mandatory life imprisonment for such habitual criminals, the duration of confinement shall not be fixed at less than fifteen years.  The board shall retain jurisdiction over such convicted person throughout his natural life unless the governor by appropriate executive action orders otherwise."

              [[Orig. Op. Page 3]]

            RCW 9.95.050 provides:

             "After a person has been confined in the state penitentiary for seven years or in the state reformatory for three years, the superintendent of the penitentiary or of the reformatory, as the case may be, upon his own initiative or at the request of the board of prison terms and paroles shall cause a thorough analysis and report of the convicted person's prospects for rehabilitation to be made.  If, based thereon, the superintendent so recommends, the board of prison terms and paroles, after such further investigation as it deems necessary, may reconsider its previous determination as to the duration of confinement of the convicted person, and subject to the limitations contained in RCW 9.95.040, may adjust the same downward."

             It is our opinion that these statutory provisions vest the necessary jurisdiction in the board of prison terms and paroles to reconsider the minimum sentence of a person convicted under the habitual criminal statute and confined in the state penitentiary.  After seven years, having considered the necessary reports of the superintendent of the penitentiary relating to the convicted person's prospects for rehabilitation, the board may adjust the term downward to a minimum of fifteen years.

             In response to your second inquiry, RCW 9.95.115 provides as follows:

             "The board of prison terms and paroles is hereby granted authority to parole any person sentenced to the penitentiary or the reformatory, under a mandatory life sentence, who has been continuously confined therein for a period of twenty consecutive years less earned good time:  Provided, The superintendent of the penitentiary or the reformatory, as the case may be, certifies to the board of prison terms and paroles that such person's conduct and work have been meritorious, and based thereon, recommends parole for such person:  Provided, That no such person shall be released under parole who is found to be a sexual  [[Orig. Op. Page 4]] psychopath under the provisions of and as defined by chapter 71.12 RCW [1951 c. 238 § 1.]"

             This statute is an extension of, rather than a limitation upon, the parole jurisdiction of the board of prison terms and paroles.

             A person is convicted of being an habitual criminal under RCW 9.92.090 when such person is convicted in this state of any crime.

             "* * * of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who previously has been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who previously has been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, * * *"

             The punishment provided under this statute is imprisonment in the state penitentiary for life.

             It is our opinion that RCW 9.95.115 does not apply to habitual criminals.  It is not possible to harmonize the twenty-year provision contained therein with the fifteen-year provision contained in RCW 9.95.040, subsection 3, with respect to habitual criminals.  Nor do we feel that the effect of the later act is to repeal or supersede the former act by implication.  InLindsey v. The Superior Court, 33 Wn. (2d) 94, at page 99, the supreme court said:

             "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier one unless the later act covers the entire subject matter of the earlier act, is complete in itself, and is evidently intended to supersede the prior act, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both be given effect."

             The court went on to say at page 102:

             "It is universally accepted that inconsistency between  [[Orig. Op. Page 5]] statutes upon a given subject is never presumed, but such interpretation or construction should be adopted as will harmonize all acts upon the subject, if reasonably possible.  Kruesel v. Collin, 171 Wash. 200, 17 P. (2d) 854; 1 Sutherland, Statutory Construction (3d ed.), 470, § 2015; 50 Am.Jur. 367, Statutes, § 363."

             There are other sections of the criminal code which carry a mandatory life sentence.  Conviction of first degree murder, RCW 9.48.030, first degree kidnapping, RCW 9.52.010, carnal knowledge upon a child under ten, RCW 9.79.020, subsection 1, and incest upon a child under ten years, RCW 9.79.090, subsection 1, each may carry a mandatory life sentence.  Therefore, applying the cited rules of statutory construction, we conclude that the legislature intended RCW 9.95.115 to apply only to those persons sentenced to life imprisonment for conviction of felonies, but not to habitual criminals.

 Very truly yours,
DON EASTVOLD
Attorney General

PHYLLIS DOLVIN
Assistant Attorney General

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