Robert Patrick Powell v. Kenneth Ducharme, Superintendent, Washington State Reformatory

This case involves the issue of whether the State of Washington’s retroactive application of a law authorizing the Indeterminate Sentence Review Board to set minimum.terms of incarceration for inmates serving mandatory life sentences is a violation of the Ex Post Facto Clause, of the United States Constitution.

I.

In 1975, Robert Patrick Powell was convicted in the State of Washington for first degree murder. Following a jury trial, Powell was sentenced by the trial judge to life imprisonment with the possibility of parole.

*712 At the time Powell was convicted, Washington law required the courts .to set the maximum sentence for first degree murder at life imprisonment. Wash.Rev.Code Ann. §§ 9A.32.040, 9.95.010 (West 1988). Under former Washington parole law, an inmate sentenced to life for first degree murder had to serve a mandatory minimum sentence of •20 years, minus time credited for good behavior, before he or she could be considered for parole. Wash.Rev.Code Ann. § 9.95.115 (West 1988) (amended 1989). Once the inmate had served the mandatory minimum term of imprisonment, the inmate had to acquire a certification of meritorious conduct and recommendation for parole from…

dissenting:

Because I believe retroactive application of Washington’s new parole scheme, violates the Ex Post Facto Clause, I respectfully dissent.

*717 As the majority correctly notes, the critical question in this case is whether the new parole scheme “ameliorates or worsens conditions imposed by its predecessor.” Weaver v. Graham, 450 U.S. 24, 33 , 101 S.Ct. 960, 966 , 67 L.Ed.2d 17 (1981). In my opinion, the new scheme unquestionably worsens prisoners’ conditions.

In Weaver , the Supreme Court held viola-tive of the Ex Post Facto Clause Florida’s retroactive application of a statute reducing the “time off for good behavior” prisoners could earn. Despite the fact that there, was no way to know that a given prisoner would have earned time off under the old law, the Court found the new law disadvantageous. The disadvantage, it said, lay in a prisoner’s “reduced opportunity to shorten his time in prison simply through good conduct.” 450 U.S. at 33-34 , 101 S.Ct. at 967 (emphasis added). See also Lindsey v. Washington, 301 U.S. 397, 401-02 , 57 S.Ct. 797, 799 , 81 L.Ed. 1182 (1937) (invalidating on ex post facto grounds retroactive application of a law requiring felons to be…

998 F.2d 710 62 USLW 2115 Robert Patrick POWELL, Petitioner-Appellee, v. Kenneth DUCHARME, Superintendent, Washington State Reformatory, Respondent-Appellant. No. 92-35427. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1992. Decided July 9, 1993. Thornton Wilson, Asst. Atty. Gen., Olympia, WA, for respondent-appellant. John Midgley, Evergreen Legal Services, Seattle, WA, for petitioner-appellee. Appeal from the United States District Court for the Western District of Washington. Before: WRIGHT, HUG, and POOLE, Circuit Judges. HUG, Circuit Judge: 1 This case involves the issue of whether the State of Washington's retroactive application of a law authorizing the Indeterminate Sentence Review Board to set minimum terms of incarceration for inmates serving mandatory life sentences is a violation of the Ex Post Facto Clause of the United States Constitution. I. 2 In 1975, Robert Patrick Powell was convicted in the State of Washington for first degree murder. Following a jury trial, Powell was sentenced by the trial judge to life imprisonment with the possibility of parole. 3 At the time Powell was convicted, Washington law required the courts to set the…