Over the past 30 years, criminal sentencing has become a harsh practice that largely disregards a person’s capacity for change. Washington’s prison population has approximately doubled since the 1980s, despite a subsequent steady decrease in crime rates. Only seven countries in the world have higher incarceration rates than Washington. We are one of eight states in which the prison population grew throughout most of the 2010s, according to a 2020 ACLU report. Today, we have five times the number of people serving life without the possibility of parole than we did in 1984. Research has shown that the drivers of this dramatic rise in Washington’s prison population are the abolishment of parole; the creation of the three strikes and weapons enhancements laws; and the trend of charging juveniles as adults.
Last year, the Washington Legislature passed Senate Bill 6164, which gives prosecutors discretion to review past cases and request resentencing if the sentence no longer advances the interests of justice. Lengthy incarceration stifles human potential for transformation and deeply harms Black and Indigenous communities, who are grossly overrepresented among those with long and life sentences. Warehousing individuals after they have rehabilitated ignores the positive contributions of formerly incarcerated people. Lengthy incarceration also wastes taxpayer money. Spending on corrections in our state has more than tripled since 1985, now costing more than $1.8 billion per year. Reducing the prison population will save tremendous money.
SB 6164 is an important interim tool that prosecutors must use robustly to increase access to justice. However, some prosecuting attorneys’ offices have been reluctant to use this new law. Although several have issued guidance on criteria and priorities, most are not proactively reviewing older cases. If SB 6164 is to effectuate any systemwide change, four changes are necessary.
First, all prosecutors should review older cases with long sentences to determine whether resentencing is appropriate. They must correct sentences for individuals who are fully rehabilitated, those who are aging or sick, and those whose sentences are excessive by today’s standards — including taking into consideration the youthfulness of those under 25 years old at the time of the offense.
Second, prosecutors should automatically review sentencing changes that are problematic. For example, cases impacted by the Blake decision, which voids many drug possession convictions in the state, must be reviewed for resentencing. Gov. Jay Inslee has so far commuted the sentences of 15 impacted individuals, but thousands more with drug possession convictions are currently in prison or under community supervision and will require resentencing review. The racial disproportionality in these convictions is stark, with Black individuals comprising 40% of King County’s 13,941 possession convictions over the last 20 years — despite making up only 7% of the population.
Third, the Legislature should modify SB 6164 to allow long-serving individuals (and their attorneys) to petition the court directly for resentencing. Unlike judges, prosecutorial decisions in this context are not subject to appellate review and are made behind closed doors, resulting in a lack of data, transparency and accountability.
Fourth, SB 6164 does not meet the need for a statewide system of sentence review that guarantees assistance of counsel and champions rehabilitation. Currently, post-conviction relief is almost exclusively available to those who can pay, resulting in a two-tiered system on the unacceptable basis of class. And women are greatly underrepresented in those who secure release through clemency and other post-conviction relief. A statewide system could be accomplished through both private and public funding, and Washington’s many civic-minded leaders and organizations should support this important effort.
Our hope is that the Legislature will consider these modifications in its next session. Acknowledging the human and fiscal costs of mass incarceration in our state requires both understanding the policies that led us to this point and creating new systems to undo the punitive grip of our prisons. Until then, prosecutors must use SB 6164 to seek release for those who have changed their lives and have much to contribute to our community.