Times Watchdog: For years, an incorrect court sentencing form reduced the length of community custody given to certain sex offenders in Washington state. As a result, more than 70 sex offenders had time shaved off community supervision.
OLYMPIA — Incorrect language on a court sentencing form improperly shaved off community supervision and treatment time for at least 73 Washington state sex offenders participating in a special program.
It’s unclear whether any offenders actually were released early from supervision, or whether the long-running problem was fixed by correcting the dates, according to state court officials and the state Department of Corrections (DOC).
This mistake isn’t related to the software error revealed in December that may have freed up to 2,700 felons early between 2002 and 2015. But state officials early this year found themselves scrambling to fix both problems.
The incorrect form had been used since 2008, but officials only became aware of the problem in January, according to Merrie Gough, a senior legal analyst with the state’s Administrative Office of the Courts.
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The court form was used for the Special Sex Offender Sentencing Alternative (SSOSA) program, which is designed to lower the chance for a repeat crime by certain first-time felony sex offenders considered a low risk to the community.
Instead of a sentence in state prison, offenders in the program get a suspended sentence along with a mix of county jail time, treatment and community supervision. That can include visits with treatment specialists, check-ins with DOC officers, electronic monitoring, risk assessments and urine tests for drug use, among other things.
After being alerted to the incorrect form in January by the state Attorney General’s Office, DOC reviewed the sentences of about 760 offenders who were in the program at the time.
The review found that the error shortened community-supervision time for 73 offenders who were still going through the program, according to DOC spokesman Jeremy Barclay. The error led another 32 offenders to be supervised for too long; monitoring for them ended when it was discovered.
DOC did not review cases of people who had completed the program before the error was discovered, according to Barclay. So it is not known if any of those offenders received mistakenly short supervision.
The sentencing form error shaved 12 months off community supervision in the case of one Clark County offender, according to court records.
The offender, who is still on community supervision, would have been finished this year because of the error. But in February, county prosecutors moved to add 12 months of supervision back onto the offender’s sentence.
Offenders in the alternative-sentencing program are to receive annual progress hearings and a termination hearing at the end of supervision, according to a copy of the corrected sentencing form.
Those hearings should allow courts to catch any incorrect sentences, according to Barclay.
Gov. Jay Inslee was notified of the problem after its discovery in January, according to spokeswoman Jaime Smith.
“Just as anybody else who wants to make sure our communities are safe, we hope judges and the courts are making appropriate determinations regarding supervision for these offenders …” Smith wrote in an email.
2008 law misinterpreted
Wendy Ferrell, spokeswoman for the Administrative Office of the Courts, said attorneys and prosecutors working with offenders in the program should make sure sentences are accurate.
And DOC officers providing community supervision have a role in monitoring those cases, Ferrell added.
A committee at the Administrative Office of the Courts is responsible for drafting and approving such court forms in response to changes in law made by the Legislature. But in 2008, the Pattern Forms Committee did not correctly interpret a change to the law, according to Gough.
After the problem was discovered this year, Gough explained, court officials issued a corrected form.
Some — but not all — Washington counties use the form to spell out the program’s terms for each offender.
King County officials were not using it, and so did not encounter the problem, according to Dan Donohoe, spokesman for the office of the King County Prosecuting Attorney.
Snohomish County officials were using the incorrect form, according to Connie Crawley, a deputy prosecuting attorney for the Snohomish County Prosecutor’s Office.
Her office corrected one offender’s sentence, but Crawley said she didn’t know if any offenders had been released from supervision early. Crawley alerted the office’s special-assault unit to look into whether that happened.
“Of course it potentially is a concern,” said Crawley. But, “I don’t know that that happened.”
To be eligible for the SSOSA program, offenders must be deemed a low risk for the community, and must have had a relationship with their victims. Among other requirements, those eligible must also be first-time felony sex offenders without a violent offense as an adult within the past five years.
A 2006 Washington State Institute for Public Policy report found the program may contribute to lower recidivism for felony sex and violent felony charges.
About 95 percent of offenders in the program at that time were child molesters, according to the report.
DOC does not know, on average, by how much time the error altered offenders’ sentences, according to Barclay.
Discovering the error
In January, then-Secretary of Corrections Dan Pacholke sent a letter to the Administrative Office of the Courts explaining the problem.
In effect, the form’s language improperly subtracted the length of jail time given to SSOSA offenders from the length of their suspended sentence, according to Pacholke’s letter. The length of the suspended sentence is used to determine the amount of community supervision.
“For example, a SSOSA offender who receives a 72-month suspended sentence with 12 months in jail and community custody, should be on supervision for 72 months — the entire length of the suspended sentence,” Pacholke wrote.
But with the incorrect form, “such an offender will be supervised in the community for 12 months less than the SSOSA statute provides,” he continued.
Pacholke’s letter also went to the Washington Association of Prosecuting Attorneys so counties using the form could be notified of the error, according to Barclay.
In an email, Tom McBride, executive secretary of the association, downplayed the error and wrote that the court system addressed the problem quickly.
McBride also wrote that Ronda Larson, a former assistant attorney general, was the person who identified the issue with the incorrect forms.
Larson resigned this year after criticism of her 2012 advice to DOC in the state’s mistaken early release of prisoners.
The state Attorney General’s Office declined to comment, citing attorney-client privilege since it advises DOC.
In that instance, DOC learned in 2012 that a sentencing miscalculation had been allowing some prisoners to be freed early. But a software-programming fix for the problem was delayed 16 times — and not made until this year, after the issue became public.
After its discovery in 2012, Larson advised that DOC shouldn’t hand-calculate sentences to make sure prisoners were serving their correct sentences.
In the case of the community-supervision sentencing errors, Lisa Toth, a Vancouver-based attorney represented the Clark County sex offender whose supervision time was miscalculated, said she was concerned that the error led offenders to serve different lengths of time than they had been told.
Offenders going through the program had planned on getting back to their lives around the dates they had originally been given, said Toth.
The error concerned Rick Torrance, managing director for the Washington Office of Crime Victims Advocacy, for different reasons.
Victims can become re-traumatized when there’s uncertainty about where an offender is and when he or she will finish their sentence, said Torrance.
Torrance added that his office hadn’t been notified of the problem.