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AGO 1962 No. 128 - May 04, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF PRISON TERMS AND PAROLES ‑- MINIMUM DURATION OF CONFINEMENT WHERE NOT SPECIFICALLY PRESCRIBED BY STATUTE.

The board of prison terms and paroles is not restricted specifically by any provision found in chapter 9.95 RCW (other than the specific minimum terms of confinement set forth in RCW 9.95.040 and 9.95.115) as to the minimum duration of confinement which it may fix for those persons convicted of a felony and committed to state correctional institutions for felons.

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                                                                    May 4, 1962

Honorable Harris G. Hunter
Chairman of the Board of
Prison Terms and Paroles
201 Institutions Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 128

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Where the minimum term of confinement is not specifically prescribed by law (RCW 9.95.040 and RCW 9.95.115), is the board of prison terms and paroles restricted by any of the provisions of chapter 9.95 RCW as to the minimum duration of confinement which it may fix for those persons convicted of a felony and committed to state correctional institutions for felons?

            We answer your question in the negative as qualified in our analysis.

                                                                     ANALYSIS

            The powers and duties of the board of prison terms and paroles are found, as codified, in chapter 9.95 RCW.

            By RCW 9.95.040, the board is required to fix the duration of confinement.  This statute reads as follows:

            "Within six months after the admission of a convicted person to the penitentiary, reformatory, or such other state penal institution as may hereafter be established, the board of  [[Orig. Op. Page 2]] 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:

            "(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.

            "(2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than seven and one‑half years.

            "The words 'deadly weapon,' as used in this section include, but are not limited to, any instrument known as a blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.

            "(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.

            "(4) Any person convicted of embezzling funds  [[Orig. Op. Page 3]] from any institution of public deposit of which he was an officer or stockholder, the duration of confinement shall be fixed at not less than five years.

            "Except when an inmate of the reformatory, penitentiary or such other penal institution as may hereafter be established, has been convicted of murder in the first or second degree, the board may parole an inmate prior to the expiration of a mandatory minimum term, provided such inmate has demonstrated a meritorious effort in rehabilitation and at least four board members concur in such action:  Provided, That any inmate who has a mandatory minimum term and is paroled prior to the expiration of such term according to the provisions of this chapter shall not receive a conditional release from supervision while on parole until after the mandatory minimum term has expired."  (Emphasis supplied.)

            See also, RCW 9.95.115 which prescribes the minimum term of confinement for persons sentenced to the penitentiary or the reformatory under a mandatory life sentence.

            In interpreting statutes, the legislative intent, will and purpose are to be ascertained from the statutory text as a whole and interpreted in the terms of the general object and purpose of the act.  Guinness v. State, 40 Wn. (2d) 677, 246 P. (2d) 433 (1952); Cory v. Nethery, 19 Wn. (2d) 326, 142 P. (2d) 488 (1943);In re Horse Heaven Irrigation District, 11 Wn. (2d) 218, 118 P. (2d) 972 (1941);Cherry Point Fish Co. v. Nelson, 25 Wash. 558, 66 Pac. 55 (1901).

            Applying this rule, it is our opinion that under the express terms of RCW 9.95.040, the board of prison terms and paroles is required to fix the duration of confinement of persons committed to the state penitentiary or reformatorywithin six months after admission to a correctional institution for felons.  Except in those cases wherein the term of minimum confinement is specifically provided by law (RCW 9.95.040, supra, and RCW 9.95.115), the board of prison terms and paroles is not restricted by any of the provisions of chapter 9.95 RCW as to the minimum duration of confinement which it may fix for those persons convicted of a felony and committed to a state correctional institution for felons.

            Regardless of our conclusion that the legislature has not specifically restricted the board in the length of minimum duration of confinement in the cases here in question, it should be carefully  [[Orig. Op. Page 4]] observed that the legislature has prescribed certain procedural standards and guides that the board must follow in the exercise of sound judgment and discretion in the process of setting of minimum durations of confinement.  The procedural standards and guides to which we refer are:

            (1) RCW 9.95.030 which directs the board, after the admission of a convicted person to the penitentiary or the reformatory, to "obtain from the sentencing judge and the prosecuting attorney, a statement of all the facts concerning the convicted person's crime and any other information of which they may be possessed relative to him" along with the recommendation of the sentencing judge and the prosecuting attorney, for the board's "guidance," of "what, in their judgment, should be the duration of the convicted person's imprisonment";

            (2) RCW 9.95.170 which directs that it shall be the "duty" of the board in determining minimum terms of confinement to "not only . . . thoroughly inform itself as to the facts of such convicted person's crime but also to inform itself as thoroughly as possible as to such convict as a personality"; and, also,

            (3) RCW 9.95.100 which requires that the board shall not "release a prisoner, unless in its opinion his rehabilitation has been complete and he is a fit subject for release."

            In passing it should be noted that if the board has fixed a minimum term of confinement (in excess of one year) under RCW 9.95.040, supra, it may, after a person has been confined for one year,"reconsider its previous determination as to the duration of confinement of the convicted person," and adjust the same downward if the superintendent of the institution of confinement "so recommends" based upon a report and analysis "of the convicted person's prospects for rehabilitation" and "subject to the limitations contained in RCW 9.95.040 [and RCW 9.95.115] . . ." (RCW 9.95.050.)

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN C. WAY
Assistant Attorney General

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