Contact:
E-mail
Olympia
PO Box 40116
Olympia, WA 98504-0116
Spokane
Spokane, WA 99201
The mission of the Corrections Division (COR) is to work with and support its partners in the criminal justice community to create and maintain safe communities. Corrections Division staff represents and advises the Department of Corrections (DOC), Indeterminate Sentence Review Board (ISRB), Governor’s Clemency and Pardons Board, the Governor’s Office on extraditions and detainers, the Criminal Justice Training Commission, and the Sentencing Guidelines Commission. COR also responds to all federal habeas corpus petitions that result from state felony convictions, including capital cases.
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Corrections/Civil Rights Unit: This unit represents DOC and its employees in state and federal court litigation. Actions handled by this unit often involve inmate constitutional rights claims associated with conditions of confinement, access to courts, freedom of speech, or due process of law, and personal restraint petitions filed by inmates challenging administrative or disciplinary action taken against them by DOC. Other litigation includes public disclosure, some tort actions, and other miscellaneous cases in superior court. This unit also provides advice and training for DOC staff in many areas including: search and seizure, access to courts, and public disclosure. Attorneys in this unit also review draft DOC policies and contracts for legal sufficiency. Finally, the unit advises the Governor’s Office on clemency and pardon matters and on interstate extradition matters.
Sentencing/Habeas Corpus Unit: This unit represents the state and DOC in challenges to the fact or duration of confinement resulting from a state court felony conviction. A key responsibility of this unit is to represent the state in federal habeas corpus litigation brought by state prisoners, including those under a death sentence. Unit staff represents DOC in post sentence petitions, which involve correcting errors in criminal judgments and sentences. They also represent the ISRB in challenges to its discretionary decisions relating to release of offenders under its jurisdiction.
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Waddington v. Sarausad (United States Supreme Court): On January 21, 2009, the United States Supreme Court reversed the Ninth Circuit’s decision vacating Sarausad’s convictions for second degree murder and attempted murder. Sarausad was the driver of a vehicle from which shots were fired at individuals believed to be rival gang members. The Ninth Circuit held (in a 2-to-1 decision) that the accomplice liability instructions given at Sarausad’s trial were so ambiguous as to relieve the prosecution of the burden of proving all the elements of the crime beyond a reasonable doubt. Sarausad v. Porter, 479 F.3d 671 (9th Cir. 2007), reh’g denied, 503 F.3d 822 (9th Cir. 2007). The Supreme Court held (in a 6 to 3 decision) that the Washington courts reasonably concluded that the trial court’s instruction to the jury was not ambiguous, and that there was no reasonable likelihood that the prosecutor’s closing argument caused Sarausad’s jury to apply the instruction in a way that relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. Waddington v. Sarausad, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009).
Stenson v. Lambert (Ninth Circuit Court of Appeals): On September 24, 2007, a unanimous three-judge panel of the Ninth Circuit Court of Appeals affirmed the district court’s decision denying Darold Stenson’s habeas corpus petition. Stenson was sentenced to death in 1994 for the aggravated murders of his wife Denise Stenson and his business partner Frank Hoerner. Stenson challenged his convictions and sentence alleging, among other things, that he was denied the right to self-representation at trial and the right to effective assistance of counsel. The district court denied habeas relief, and the Ninth Circuit affirmed, concluding that the Washington state-court adjudication of Stenson’s constitutional claims was neither contrary to, nor an unreasonable application of, clearly established federal law. On March 19, 2008, the Ninth Circuit denied Stenson’s petition for rehearing en banc. Stenson recently filed a petition for writ of certiorari with the U.S. Supreme Court. If the high court denies that petition in October 2008, Stenson’s execution will be automatically scheduled to occur in late November 2008.
Brown v. Uttecht (Ninth Circuit Court of Appeals): The Ninth Circuit, in a 2-1 opinion, affirmed the denial of Cal Brown’s habeas petition challenging his death sentence for the aggravated murder of Holly Washa. The Ninth Circuit previously granted relief on a claim that the state court improperly excluded a juror for cause. The Supreme Court granted the State’s petition for certiorari and reversed that decision in Uttecht v. Brown, 127 S. Ct. 2218 (2007). The Supreme Court remanded to the Ninth Circuit to consider Brown’s remaining claim of ineffective assistance of counsel. The Ninth Circuit has now affirmed the denial of relief on this final claim, concluding that counsel’s decisions not to call a psychiatrist and a prison counselor to testify, and not to cross-examine the prosecution’s expert psychiatrist, were sound trial strategies that did not prejudice the defense. Brown recently sought en banc review by the Ninth Circuit.
McNabb v. DOC (Washington Supreme Court): In April 2008, the Washington Supreme Court rejected an inmate’s claim that the Department of Corrections violated his right to privacy under the Washington Constitution when it force-fed him after he refused to eat for several months. The Court found the state acted properly by intervening and saving the inmate’s life despite his efforts to starve himself to death. Although there was a majority decision (signed by four justices) and a concurring opinion (also signed by four justices), both decisions recognized that the interests of the prison outweighed the interests of the inmate to starve himself to death in these circumstances. One justice dissented, commenting that an offender retains the right to starve himself to death while in prison.
In re Personal Restraint of McCarthy (Washington Supreme Court): On August 16, 2007, the Washington Supreme Court denied the personal restraint petition of Donald McCarthy, a sex offender sentenced under Washington’s “determinate plus” sentencing scheme (RCW 9.94A.712). Offenders sentenced under that statute are subject to a release decision hearing held by the Indeterminate Sentence Review Board (ISRB) under RCW 9.95.420(3) (“.420 hearing”). McCarthy argued he was entitled to representation by appointed legal counsel during his .420 hearing, and the Court of Appeals granted his petition. The Supreme Court reversed in a 5-to-4 decision, holding that offenders like McCarthy are not constitutionally entitled to the assistance of counsel at .420 hearings. The Court concluded that such proceedings are more like parolability hearings (where there is no constitutional right to counsel) than parole revocation hearings (where such a right may exist). This was a critically important decision for the ISRB on a constitutional issue of first impression.
Jayson Bush v. Gregoire (Washington Supreme Court): This is a personal restraint proceeding brought by an offender (Bush) whose conditional clemency had been revoked by the Governor after the offender was charged with third degree assault on a child. The Governor revoked Bush’s conditional commutation shortly thereafter without a hearing. Bush argued that his due process rights were violated when he was returned to DOC without a proper hearing or notice. In response, Corrections Division attorneys argued on behalf of the Governor that conditional clemency is distinct from parole, that Bush did not have a protected liberty interest in avoiding revocation of his conditional clemency, and that the Governor acted properly in revoking Bush’s conditional clemency and giving him the opportunity to submit information demonstrating that he did not violate the conditions of his clemency. The Supreme Court heard argument in the case on November 6, 2007, and a decision is pending.
Livingston v. Department of Corrections (Washington Supreme Court): On July 3, 2008, in a 5-4 decision, the Washington Supreme Court affirmed the Department of Corrections’ authority to withhold from inmates public records deemed contraband under prison mail policies. The case involved an inmate Public Records Act (PRA) request for a correctional officer’s training records. The Department complied with the request and mailed the requested records to the inmate in prison. However, mailroom staff at the prison rejected the training records as contraband pursuant to policy. In affirming the Department’s actions, the majority of the Court found no conflict between the PRA and DOC’s broad statutory authority to define contraband in the prison setting, and to intercept contraband before it enters the prisons. The Court also rejected the inmate’s contention that DOC could withhold records only when a PRA exemption applied. Such a rule, the Court explained, “would create the anomalous situation that an inmate could possess materials the Department would otherwise ban from the institution so long as the material is obtained through a public disclosure request.” Although close, this decision is a significant victory for the Department of Corrections in its ongoing efforts to deal with inmate public records requests intended to harass staff and/or undermine institutional order.
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