A Washington state corrections staffer noticed earlier this year that a Pierce County offender guilty of third-degree child rape might be released six months too soon from community supervision.
The agency staffer, worried that the offender’s sentencing order might be incorrect, dashed off an email seeking clarification from the Pierce County Prosecutor’s Office.
Officials with the state Department of Corrections say what happened next is all too common: The DOC staffer never heard back from the county.
DOC sends hundreds of such clarification letters to counties across the state every year, asking for guidance on sentences given to offenders entering the prison and community supervision system.
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The requests often go ignored, DOC officials say, leaving corrections staffers to interpret court sentencing orders that are confusing, illegible — or even incorrect.
That could mean holding an offender for too long or releasing one from prison or community supervision too early.
Of the 640 clarification letters DOC sent to county prosecutors in 2015, the agency says it failed to get responses to 332 of them — more than half.
Rep. Roger Goodman, D-Kirkland, and chair of the House Public Safety Committee, called the issue “a major concern.”
“A lot of people in prison are now serving sentences that are not following the law,” said Goodman, who plans to hold a committee work session on the issue in January. “We have to really address this.”
When an offender enters prison, the agency receives a paper document from the courts known as a judgment and sentencing form. The forms, which give the specifics about an individual offender’s sentence, are entered by corrections staff into a database that calculates and tracks the sentences.
But the forms can come with illegible handwriting, mathematical errors or sentences that aren’t consistent with state law, DOC officials say.
To complicate matters, many of the state’s 39 counties use their own versions of the forms. Meanwhile, state lawmakers over the years have made sentences themselves more complex by adding enhanced punishments for certain crimes.
Combine all of those factors, and the state’s criminal justice system can’t guarantee that accurate sentences are being served.
“There are people in here, in custody, that probably have disputable release dates,” said acting DOC Secretary Richard Morgan.
Long sentencing saga
The concern about the court sentencing forms is yet another twist in the state’s ongoing saga of trying to make sure prison and community-supervision sentences are accurate.
In 2015, Gov. Jay Inslee and DOC officials announced that for years, up to 2,700 Washington offenders had been released early due to a sentence-calculating error.
It was a costly mistake: Two people that year were killed by released offenders who should have been in prison. And DOC rounded up and incarcerated other offenders who had been freed early and were trying to get their lives back on track.
Another problem surfaced earlier this year, when officials learned of an error on a judgment and sentencing form that skewed community supervision time for some sex offenders. A review found that at least five sex offenders had been improperly released from supervision early because of that or other errors.
A third problem — not previously reported — affected the state’s Drug Offender Sentencing Alternative program.
Discovered in late July by corrections staff, that problem involved incorrect calculations for some offenders serving more than one sentence. A DOC review of that problem looked at 1,327 offenders between October 2013 and August 2016 found 44 potentially affected.
The review found that two offenders were released early from prison. One was freed 243 days early, and was brought back into custody in August, according to the DOC. Another had been released 48 days early. That offender was on community supervision but had already been brought back to prison after violating supervision terms by the time the problem was discovered.
Two other offenders still in prison — each of whom would have been released about 80 days early — had their sentences lengthened to the correct amount.
Sentencing isn’t simple
Most people think a criminal sentence is simple, clear-cut: Somebody commits a crime, they’re found guilty. They serve their prison or supervision time and then get released. Justice is served.
The reality in Washington state is far different. Prison and community-supervision sentences are built on a dizzying array of circumstances.
Factors include whether multiple charges should be served consecutively or concurrently. An offender could get an enhanced sentence — extra time — for certain circumstances, such as carrying a gun during a crime.
An offender’s time spent in jail before the conviction can be credited toward a prison sentence. Time off for good behavior can also be earned while in prison, changing calculations as time goes on.
And then there are the forms. Many of the state’s 39 counties use their own variation of court sentencing forms. DOC records staff deal with more than 100 different forms — increasing the likelihood that a mistake could be made, Morgan said.
After DOC staffers send a question, the court systems are supposed to decide whether to make an adjustment or clarification to a sentence, or let the original form stand.
But DOC data show that counties across the state often don’t respond.
In 2015, the King County Prosecutor’s Office didn’t respond to 45 of the 86 clarification letters sent by corrections staffers. In 34 instances where the office did respond, some change was made to offenders’ sentences.
DOC hasn’t contacted the prosecutor’s office about a lack of response, said Mark Larson, chief deputy for the office’s criminal division.
“If that was causing some difficulty, I really would have hoped they would have said something to us,” Larson said.
Larson said he’s sympathetic in cases where a corrections staffer can’t read a court form due to bad handwriting. But he’s more skeptical when DOC says it doesn’t agree with a judge’s order.
The Pierce County Prosecutor’s Office in 2015 didn’t respond to 51 of the 79 letters sent by DOC.
In the case of the Pierce County sex offender from earlier this year, DOC officials had a court form showing the offender getting 54 months of community supervision.
But corrections staff thought it should be 60 months.
The offender was part of the Special Sex Offender Sentencing Alternative, a program for those deemed to be low risk. Instead of prison time, offenders in the program serve a mix of jail time, community supervision and treatment.
DOC records show a corrections staffer emailed a clarification letter to a Pierce County deputy prosecutor on Jan. 29, 2016.
After The Seattle Times contacted the prosecutor’s office in late November, that deputy prosecutor searched for DOC’s email but couldn’t find it, said Tim Lewis, felony division chief for the office.
“The thing that troubles me is that, either way, we need to be responding to DOC,” Lewis said.
Pierce County has since responded about that case, said Jeremy Barclay, DOC spokesman, and the offender’s community supervision was lengthened to 60 months.
In another case, corrections staffers think an offender from Thurston County currently serving a sentence that includes burglary charges could be released about 230 days too early, according to Barclay.
The offender’s charges are set to run concurrently — but the agency believes they should be served consecutively, Barclay said.
DOC hasn’t yet gotten a response on that case, Barclay said. But if the agency is correct and Thurston County doesn’t respond, “Instead of releasing in 2018, he’ll be releasing in 2017,” Barclay said.
The Snohomish County Prosecutor’s Office didn’t respond to 28 of 47 clarification letters sent in 2015, according to DOC data.
The county tries to be responsive, said Joan Cavagnaro, chief criminal deputy prosecutor.
“If DOC does not get a timely response from someone in my office, the matter should be brought to the attention of the individual’s supervisor,” Cavagnaro wrote. But, “I have not been contacted by DOC regarding such letters for many years.”
Corrections staffers don’t have the time to keep asking about issues after they don’t hear a response, Barclay said.
“I’m not sure we have the resources to file multiple inquiries,” he said, “or if that’s even our role.”
Morgan said he hopes state lawmakers can find a way to streamline court forms in the legislative session that starts in January.
One possibility would be to create a consistent worksheet that counties can prepare along with their own court forms. That would allow records staff to work from a single type of document.
Sen. Mike Padden, R-Spokane Valley, and chair of the Senate Law and Justice Committee, said he’s heard about the issue and thinks it’s a “legitimate concern.”
But Padden, who led a Republican investigation into the state’s long-running mistaken early release of prisoners, said the DOC shouldn’t use the issue as an excuse for not making sure sentences are accurate.
Wendy Ferrell, a spokeswoman for the state Administrative Office of the Courts, wrote in an email that her office would, “reach out to DOC, local prosecutors and our judicial leaders to see how we can work together to find a fix.”
“We all have the same goal to get this right, and there could be a variety of ways to resolve the issue,” Ferrell wrote.
In his latest budget plan, Gov. Jay Inslee has also proposed hiring 25 more DOC records staffers to make sure offenders are serving their correct sentences.
DOC clarification letters
When the state Department of Corrections has a question about an offender’s prison or community supervision sentence, the agency asks the county prosecutor for guidance. But corrections officials say they often don’t get a response. Here are some of the counties that failed to respond to many of the DOC requests in 2015:
Pierce County: Didn’t respond to 51 of 79 letters.
King County: Didn’t respond to 45 of 86 letters.
Spokane County: Didn’t respond to 45 of 73 letters.
Thurston County: Didn’t respond to 29 of 41 letters.
Snohomish County: Didn’t respond to 28 of 47 letters.
Source: Washington state Department of Corrections