Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 45 -
Attorney General Slade Gorton


A person who upon being convicted in this state of first degree murder was sentenced to death under RCW 9.48.030, but whose sentence was thereafter commuted to life imprisonment by the governor, may be granted a parole under RCW 9.95.115, in the absence of anything to the contrary in the governor's commutation order.

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                                                                    April 6, 1973

Honorable Daniel J. Evans
Governor, State of Washington
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 45

Dear Sir:

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

            May a person who upon being convicted in this state of first degree murder and sentenced to death under RCW 9.48.030, but whose sentence was commuted to life imprisonment by the governor, be granted a parole under RCW 9.95.115, in the absence of anything to the contrary in the governor's commutation order?

            We answer this question in the affirmative.


            In your letter you have advised as to the underlying factual basis for your request as follows:

            "At the present time there are persons incarcerated in state correctional institutions who were convicted of capital crimes and sentenced to death but whose sentences were commuted to life imprisonment by previous governors.  I am aware of John H. Bonner and William A. Poole who are in this category.  There may possibly be others."

            From this it may preliminarily be noted that all of the operative facts involved in the cases now giving rise to your question occurred prior to the invalidation inState v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972), of so much of RCW 9.48.030 as previously allowed the death penalty to be imposed by the jury in first degree murder cases in this state.  Accord, Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1972).  Following their convictions of this crime and concurrent imposition of the death penalty, the subject individuals were  [[Orig. Op. Page 2]] incarcerated in the state penitentiary to await execution, but before this was carried out, their respective death sentences were commuted to life imprisonment by gubernatorial orders of commutation in the following form:

            "NOW, THEREFORE, I, (Name of Governor), as the Governor of the State of Washington, by virtue of the authority in me vested under Article III, Sec. 9 of the Washington State Constitution,[1/]  DO HEREBY COMMUTE the sentence of the said (individual whose sentence is being commuted) to imprisonment in the Washington State Penitentiary at Walla Walla for the term of his natural life."

            The question presented is whether, by virtue of this commutation, the described individuals have become subject to the jurisdiction of the state board of prison terms and paroles under the following provisions of RCW 9.95.115:

            "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: . . ."

            Before addressing ourselves to the only Washington court decision which, arguably, may have some bearing upon this question let us first note what appear to be the generally accepted rules in other states.  To begin with, it is generally held in other jurisdictions that where the sentence originally imposed by the court is commuted to a lesser sentence by the governor, the effect is a substitution of punishment rather than a new sentence.  That is, the original sentence of the court remains in effect in a modified form so that, after commutation, the status of the prisoner is the same as if the sentence by the court had originally been for the commuted term.  See, e.g.,People v. Larkman, 244 N.Y.S. 431, 434 (1930), and cases cited therein; also,Application of White, 2 N.Y.S.2d 582 (1938), Ex parte Denton, 69 Okla.Cr. 204, 101 P.2d 276 (1940);Pittman v. Richardson, 201 S.C. 344, 23 S.E.2d 17 (1942).

             [[Orig. Op. Page 3]]

            If, in his order commuting a death penalty to life imprisonment, a governor clearly stipulates against any possibility of parole, such a stipulation will be given effect by the courts ‑ consistent with the proposition that in exercising his pardoning power a governor may either grant a total pardon to a convicted person or any lesser relief from the legal burdens of the conviction.  See,Ex parte Stewart, 24 C.2d 344, 149 P.2d 689 (1944).  Where, however, a commutation order is ambiguous in this or any other respect, any such ambiguity is to be resolved against the state and in favor of the prisoner.  See, e.g.,Williams v. Brents, 171 Ark. 367, 284 S.W. 56 (1926), and Roberts v. Duffy, 167 Cal. 629, 634, 140 Pac. 260 (1914), both applying, in effect, the long-recognized rule that all doubts arising in a state's enforcement of its criminal justice are to be resolved against the state; c.f., the well-established doctrine of strict construction of penal laws.  Accord,Bell v. United States, 349 U.S. 81, 99 L.Ed. 905, 75 S.Ct. 620 (1955); andRayborn v. United States, 234 F.2d 368 (Ct.App.Ky. 1956).

            The question remains, however, whether this over-all approach to the cases involved in your present request is in some way foreclosed in our own state by the Washington court's decision in Henry v. Webb, 21 Wn.2d 283, 150 P.2d 693 (1944), as was suggested by this office in an opinion dated March 26, 1954, to former State Representative Howard Ball, copy enclosed.

            In that opinion we were asked essentially the same question as you have set forth in your present letter; namely, the jurisdiction of the parole board over inmates whose sentences have been commuted from death to life imprisonment.  After noting the provisions of RCW 9.95.115, supra, which had only shortly before been enacted as § 1, chapter 238, Laws of 1951, we there said:

            "It seems obvious to us that there is a great deal of uncertainty as to the meaning of RCW 9.95.115, as applied to situations like this, and there is a definite need for legislative clarification of the matter.

            "The cited statute vests in the Board authority to parole persons who are serving under amandatory life sentence.  But in the case ofHenry v. Webb, 21 Wn.2d 283, which was denied review by the United States Supreme Court, it was indicated that jurisdiction of the Board in  [[Orig. Op. Page 4]] cases involving commuted sentences, depends upon whether or not the Board had jurisdiction to affect the original sentence.  Of course, that case was decided before the enactment of RCW 9.95.115 in 1951.  But the principle upon which the decision was based is apparently still the law.  Consequently there is serious doubt whether the statute can be interpreted to vest in the Board jurisdiction over prisoners serving undercommuted sentences, since the board would have had no jurisdiction to affect the original sentence.

            "If it were the intention of the legislature to vest in the Board such jurisdiction, it has not been clearly spelled out.  We sincerely hope this inconsistency will be called to the attention of the next legislature in order that the doubt may be definitely resolved.  As it stands at the present time, the decision in the case above cited renders it extremely doubtful that the inmate referred to in your letter could come before the Board under the provisions of RCW 9.95.115."

            The relevant facts inHenry v. Webb, supra, were as follows: The petitioner Henry, seeking release from the penitentiary by writ of habeas corpus, had been convicted of burglary in 1929 and thereupon, because of his previous record of other similar convictions, had been adjudged to be an habitual criminal under a statute now codified as RCW   Accordingly, as required by that statute in such cases, he was sentenced to a term of life imprisonment commencing on June 13, 1929.  Later, however, on December 15, 1942, this sentence was commuted by the then governor to a term of twenty years ‑ following which the parole board, apparently assuming it had authority to do so, granted Henry a parole.  Thereafter, while on parole, he was granted a conditional pardon by the governor, one of the conditions of which he promptly managed to breach ‑ whereupon the pardon was revoked and he was returned to the penitentiary in March of 1943.

            The basis for his petition for a writ of habeas corpus to obtain his release therefrom was described by the court, at p. 285, as follows:

             [[Orig. Op. Page 5]]

            ". . .  As we understand his contention, it is that, after his sentence had been reduced to twenty years, the board of prison terms and paroles, on December 21, 1942, assuming to act under Rem. Rev. Stat. (Sup.), § 10249-1 etseq., granted to petitioner a parole, and in so doing gave him a credit of six years and eight months off the term of twenty years for good behavior; that, at the time of petitioner's release under the parole on December 21, 1942, by including the six years and eight months credit, petitioner had served his entire term of twenty years, and, having so satisfied the sentence imposed upon him, the governor had no right or authority thereafter to revoke the conditional pardon and order petitioner to be again incarcerated; and that he is therefore now unlawfully restrained of his liberty."

            The central issue to be determined thus was seen to be that of the validity of the parole board's action when, following the governor's commutation of Henry's life term, it proceeded to grant him a parole.  After first acknowledging the authority of the governor, under Article III, § 9,supra, to have granted both this commutation and the later conditional pardon, the court ruled on this issue as follows:

            "We are of the opinion that, where one is sentenced in the type of case here involved, the statute contemplates such person shall serve the entire sentence required to be imposed, unless such sentence be commuted, or such one so sentenced be conditionally or fully pardoned by the governor.  This being true, we are also of the opinion that, where the original sentence which is required to be imposed is commuted by the governor, such commuted sentence falls within the same category as the original sentence, and cannot be reduced or changed except by executive order, nor can one whose sentence has been so commuted be released from custody except by executive order granting a conditional or full pardon.

            "It is apparent to us that, under Rem. Rev. Stat., § 2286 [P.C. § 8721], a person convicted as was petitioner in this case, must be sentenced to imprisonment in the state penitentiary for life.

            "It is just as apparent that the authority vested in the board of prison terms and paroles by Rem. Rev. Stat. (Sup.), § 10249-2 or § 10249-4, does not apply to one who has been convicted and sentenced as was petitioner, as § 10249-2 specifically  [[Orig. Op. Page 6]] excepts from the operation of the act a person convicted of treason, murder in the first degree, carnal knowledge of a child under ten years, or being an habitual criminal.  This exception, in our opinion, was meant to pervade the entire act, and so it would follow that, where one has been convicted and sentenced under some one of the excepted offenses, the board of prison terms and paroles under the act would neither have authority to parole such person nor to allow credit on such sentence or reduce the sentence in any way.

            "The finality of the sentence is not changed by commuting the sentence from life imprisonment to a specified term of years, and the board of prison terms and paroles would have no more authority to parole the person because the sentence had been commuted, or allow credit on such commuted sentence, than it would have had to affect the original sentence."  (Pp. 286-287.)

            In evaluating this 1944 decision of the court, as well as our 1954 analysis thereof, it is essential to understand what the state of the law was with respect to paroles when this case was decided.  Under Rem. Rev. Stat., § 10249-2, codifying § 2, chapter 114, Laws of 1935, the state parole board as established by § 1 thereof was vested with jurisdiction only with respect to

            ". . . a person . . . convicted of any felony, except treason, murder in the first degree, carnal knowledge of a child under ten years, or of being an habitual criminal . . ."

            And obviously the governor's order of commutation, whereby Henry's life sentence was merely reduced to one of twenty years, did not alter the fact that he had been adjudged to be an habitual criminal.  For this reason, it follows that this order did not have the effect of conferring jurisdiction upon the board to grant Henry a parole, as held by the court.

            Had RCW 9.95.115,supra, been in effect at that time of the Henry decision, the result obviously would have been quite different.  Under this 1951 statute the parole board  [[Orig. Op. Page 7]] now has the authority to grant parole to any life termer after he has served at least twenty years of his sentence ". . . less earned good time . . ."3/ ; and this is so irrespective of the crime of which he has been convicted.  It is this point, as well as its significance in terms of the court's rationale inHenry v. Webb, supra, which now seems to us to have been misunderstood at the time our 1954 opinion to former State Representative Ball, supra.

            The governor's commutation order in Henry did not make him eligible for parole because it did not alter his status as a person adjudged to be an habitual criminal ‑ and this, rather than the duration of either the original or the commuted sentence, was all important in terms of eligibility for parole at that time.  With the enactment of RCW 9.95.115, however, the nature of the crime (or status, in the case of an habitual criminal)4/ became irrelevant to this question, and the sentence instead became the key to whether a parole could be granted.  Even a person convicted of first degree murder became eligible for parole if sentenced to life imprisonment instead of death.

            Accordingly, it is our belief at this time that the  foregoing 1954 opinion of this office should be overruled.  Instead, consistent with the principles deduced from the several out-of-state cases cited earlier in this opinion, we now think that a person originally sentenced to death for first degree murder whose sentence has been commuted to life imprisonment by the governor should be deemed potentially eligible for a parole under this 1951 legislative enactment ‑ in the absence of anything to the contrary in the governor's commutation order.

            Further compelling this conclusion, in our opinion, is the Equal Protection Clause of the United States Constitution.  It is clear that this provision forbids arbitrary discrimination by a state even in the treatment of prisoners who have been convicted of crimes against the state.  Toles v. Katzenbach, 385 F.2d 107 (Ct. App. Wash. 1967).  The equal protection clause does not thereby prevent the state from classifying prisoners but does require that:  (1) A classification of one group  [[Orig. Op. Page 8]] of prisoners apart from another such group must not be arbitrary, but based on valid and substantial differences; (2) the state policy involved must be in furtherance of a legitimate objective of government; and (3) there must be a real and substantial bond between the classification and the objective to be achieved, Gainey v. Turner, 266 F.Supp. 95 (Dist. Ct. N.Y. 1967).

            Pursuant to RCW 9.95.115, supra, the board of prison terms and paroles now exercises unquestionable jurisdiction to grant paroles to individuals serving mandatory life sentencesimposed by the courts.  The existence of a valid rationale for failing to extend this same jurisdiction to cases involving individuals with commuted life sentences, absent specific gubernatorial language to the contrary, is most doubtful.  There is no general distinguishing factor between the nature of the crimes committed by these two groups of life‑sentenced prisoners, other than individual case‑by-case distinctions, which would rationalize such a classification.  This being the case, it follows that a difference in the treatment of these two groups of similarly situated prisoners, in terms of eligibility for parole, would raise substantial problems of conformity to the equal protection clause.

            Accordingly, we answer your question, as above paraphrased, in the affirmative, and trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

[1]/"The pardoning power shall be vested in the governor under such regulations and restrictions as may be prescribed by law."

2/See, § 34, chapter 249, Laws of 1909.

3/See, RCW 9.95.070 with respect to time credit reductions for good behavior.

4/See, State v. Bryant, 73 Wn.2d 168, 437 P.2d 398 (1968).