Caught Between Rehabilitation and Punishment: A Look at the Sentencing Reform Act from Behind Bars
By: Andrea Berg
Note: In-text links lead to primary documents within the WPHP archive and secondary sources
In 1981, Washington State passed what was at the time the most comprehensive overhaul of sentencing laws in the country. The Sentencing Reform Act (SRA) replaced a system of indeterminate sentencing, with release dates determined by a parole board, to a system of determinate sentencing, where formulas and matrices determined a set sentence length. It claimed to replace the whims and biases of parole officer discretion with the legislative neutrality of pre-determined sentences. It also explicitly rejected rehabilitation as the goal of incarceration, instead embracing a philosophy of punishment.
The turn towards punishment came on the heels of what formerly incarcerated poet and University of Washington graduate Raul R. Salinas called the “prison rebellion years,” during which prisons experienced unprecedented levels of overcrowding, protest and violence. The crackdown on prisoner power rolled out throughout the 1970s. The experiments with shared prisoner governance at Walla Walla were disbanded in 1973, and in 1978 the the United States Supreme Court ruled that prisoners had no right to collective bargaining. In 1979, the Walla Walla Penitentiary went into lock down for 146 days following a spate of violence against prison guards, and prison officials used the lockdown to impose a new punitive regime.
In the early 1980s, Washington State’s prisons were placed under a federal receivership as a result of abusive, overcrowded prison conditions. This was an opportunity for the State to modernize its punishment system, providing new training and weapons to prison guards. In 1981, the Department of Corrections was established, pulling prisons out from the umbrella of the Department of Institutions and elevating the administration of prisons with its own government agency. The foundation of prisons in a philosophy of rehabilitation was being challenged from the Left, who saw prison’s claim to rehabilitation as a sham, and from the Right, who saw the failure of prisons as proof that incarcerated people were beyond help, deserving nothing but punishment for their crimes.
This political context gave birth to the bipartisan Sentencing Reform Act, whose disparate supporters were described by the Seattle Post Intelligencer as similar to “Jane Fonda and John Wayne co-authoring a book on the history of the Vietnam War.” But far from clarifying the uncertainty of indeterminate sentencing, the SRA’s implementation and legacy has been marked by chaos, contestation, and disastrous outcomes for prison populations.
Drawing from a range of prisoner-produced publications, personal letters, and legal filings, we can follow the implementation and evolution of the SRA — through its drawn out implementation, yearly legislative amendments, successful prisoner-led lawsuits, and constant contestation from incarcerated people and their families. A constant throughline in this story is Ed Mead, who donated the founding collection for the Washington Prison History Project, on which this essay is based. Arrested in 1976, Mead was an author and activist incarcerated in Washington during the roll out of the SRA, and he became an outspoken critic of the SRA’s disjointed implementation, even as he tried to leverage the new possibilities created by the Act to shorten his and other prisoners’ sentences. Like other incarcerated abolitionists, Mead employed a both/and approach that rejected the logic of reform while at the same time engaging with it to improve his conditions.
SRA Passed Into Law
The Sentencing Reform Act was passed into law in 1981 with the understanding that it would not be implemented until 1984. This was designed to give the newly created Sentencing Guidelines Commission time to develop a formula for determining an “offender score” that would correspond to a matrix of sentencing ranges. The supposed neutrality of a sentencing matrix was touted as a response to racial disparities in sentencing. One of the founding principles of the SRA was “just deserts,” the idea that everyone should serve the same time for the same crime, and that that time should be proportional to the seriousness of the crime. This was in contrast to the indeterminate sentencing of the rehabilitative model, which took individual factors into account during sentencing, and which relied on the prisoner showing they were improved and fit to re-enter society before being released. It was projected that the determinate sentences of the SRA would be shorter, thus reducing overcrowding as well. Finally, because rehabilitation was no longer a goal, the institution of parole was abolished altogether. At the time, it was the most comprehensive overhaul of sentencing laws in the nation, putting Washington State at the forefront of incarceration’s punitive turn in the 1980’s.
Incarcerated people recognized the magnitude of the shift from indeterminate to determinate sentencing, and discussed the potential impacts — both good and bad — of the new sentencing reality. Leading up to the passage of the SRA, the United Friends and Families of Prisoners newsletter, a Quaker publication containing writing from both incarcerated people and their supporters, dedicated an entire issue to the question of determinate vs. indeterminate sentencing. Noting that indeterminate sentencing had “once been seen as a gigantic step forward by liberal reformers [yet] indeterminacy has become a nightmarish practice by parole boards across the country. It is no wonder that prisoners are now skeptical of… a new liberal “reform” which returns to them, under the guise of “equal treatment,” determinacy in the form of mandatory sentences.” Some contributors rejected the reforms altogether, calling for alternatives to any form of incarceration and a rejection of the philosophy of punishment. Others engaged critically with the early language of the SRA, even publishing amendments that astutely foresaw what would become the SRA’s most disastrous elements: increased prosecutorial discretion, longer sentences caused by persistent offender and weapons enhancements, and the refusal to apply the SRA’s sentencing guidelines retroactively. Still, they saw the potential for the SRA to bring shorter sentences and end the “nightmarish” indeterminacy of the parole board.
Writing to his wife from the Washington State Reformatory in Monroe, Ed Mead calculated what this would mean for his sentence: “I carefully read over the entire act last night and have a pretty good idea what it is all about now. And what it is about is a substantial sentence reduction for yours truly… Next month I will have a total of seven years served, meaning it is only two years away from my presumptive release date (given the worst case scenario on my offender score) under the new act. In other words as soon as the act goes into effect (July 1, 1984), I will be eligible for release from state custody. Of course it will take some time to get before the parole board but all in all it looks pretty good.”
The Chaos of Implementation
Ed Mead assumed, as did many others, that the new sentencing guidelines would apply retroactively to those who had been sentenced before July 1, 1984. Indeed, the language of Sentencing Guidelines Commission’s final report to the legislature stated “it is assumed that the guidelines will be applied to all cases, even those before the effective date of the act.” To address those sentenced before 1984, the SRA transformed the Parole Board into the Indeterminate Sentencing Review Board (ISRB). The newly created ISRB had a temporary mandate to review all pre-SRA sentences and reset them to be more consistent with the SRA sentence ranges by 1988, after which the ISRB would be permanently disbanded. But the ISRB had other ideas.
In the language adopted by the ISRB, they added the phrase “Effective July 1, 1984, the Board shall fix minimum terms based on its full discretion,” while still agreeing to “consider” the SRA ranges. ISRB rejected the SRA’s principle of punishment and clung to the promise of rehabilitation, arguing that pre-SRA offenders still needed to show proof of improvement before being released. This effectively divided the prison population into two distinct groups operating under very different sentencing systems: the pre-SRA prisoners who were being “rehabilitated” by indeterminate sentences set by the ISRB, and the post-SRA prisoners, who were being “punished” in line with their offender score and the sentencing matrix.
In “The Name’s Changed… But the Game’s Still the Same,” Ed Mead disavows the ISRB’s actions, and explores the political climate in the messy midst of the shift from rehabilitation to punishment. He captures a fascinating snapshot that reveals how the ISRB was seen to be operating outside its mandate even by those within the legislature. It is noteworthy that the ISRB did not deny these claims, but rather justified their actions by citing an ongoing belief in the philosophy of rehabilitation over punishment, confirming and attempting to legitimize the dual sentencing system:
“Roxanne Park, executive secretary of the Sentencing Guidelines Commission, publicly criticized the board in a newspaper article published in the PI… saying that the board “almost always exceeded the guidelines” when setting minimum terms. Kit Bail, chairwoman of the parole board, was quoted as saying that Park was correct, and excused the board’s conduct by ascribing it to a “philosophical disagreement” with the new determinate sentencing law.”
Pre-SRA prisoners were caught in limbo between Washington’s rehabilitative past and punitive future.
Beyond the chaos of conflicting philosophies, there was also the chaos of rulemaking. The SRA has been amended every year, sometimes multiple times per year, since 1984. There is already an amendment posted for 2023. Thus, far from simplifying the prior indeterminate sentencing system, the SRA became a labyrinth of moving walls and moving targets. Most amendments involved changes in how offender scores were calculated and changes that increased sentence lengths. In the 1980’s, SRA sentences were often significantly shorter than pre-SRA indeterminate sentences, however, the long-term effect of the SRA has been a proliferation of longer and longer sentences.
Contesting the SRA from Behind Bars
Ed Mead and other incarcerated people across Washington State contested the contradictions of the SRA’s implementation. The ISRB described being “deluged” with questions about retroactive application, and the archive contains letters written from Ed Mead to the ISRB quoting legal statutes, an prisoner’s affidavit testifying that the ISRB said they would not take the SRA sentencing guidelines into consideration, an appeal filed pro se by Ed Mead arguing that the SRA should be retroactively applied as a matter of constitutional right, and references to a legislative bill drafted by a jailhouse lawyer. They fought so hard because the stakes were high: Ed Mead’s pre-SRA sentence was for two 20 year terms to be served consecutively, adding up to a minimum of 40 years, and requiring him to prove his rehabilitation to the parole board before being released. His SRA sentence would be just 9 years.
Prisoners did gain traction in their battle against the ISRB through several successful State Supreme Court Cases decided throughout the 1980’s. In 1986, Myers found that the ISRB did not have the “full discretion” that they had claimed, but stopped short of retroactively applying the SRA . The removal of the phrase did little to change the Board’s practices. Addleman further required written justification for any ISRB sentences that fell outside the SRA range. In 1988, Irwin found that all consecutive sentences, regardless of when they were handed down, should be changed to concurrent sentences. For Mead, this meant his sentence was cut in half.
Still, in a 1987 report to the State Senate, the ISRB admitted that “in approximately 53 percent of the sentences reviewed, the board reset minimum terms above the SRA ranges.” By comparison, court-imposed sentences fell outside the SRA ranges just 3.7% of the time. As the State Supreme Court cases continued to decide in favor of incarcerated people, they demanded further rounds of sentencing review from the ISRB to try and bring pre-SRA sentences in line with the new sentencing guidelines. As a result, instead of being disbanded in 1988, the ISRB received a continuation through 1992.
Prisoners and their families also organized outside the courts to lobby for legislative changes to the SRA, primarily for retroactive application of the shorter, determinate sentences for pre-SRA prisoners. In 1987, in an early issue of The Abolitionist newspaper, Ed Mead describes “between 45-50 supporters of prisoners” gathering in Olympia to weigh in on SRA hearings: “How long has it been since fifty citizens attended any government hearing, let alone one addressing the concerns of prisoners? The legislature will give retroactive application of the SRA guidelines when all of us who are concerned work hard at making the justice represented by that possibility into a concrete reality.” In 1988, the Washington Prisoners/Family Support Group used The Abolitionist to help organize a 300 person demonstration of allies across the state. At the top of their 12-point list of priority issues was retroactive application of the SRA.
Incarcerated people engaged with the SRA even as they rejected its foundational logic. Prisoner published newsletters from the 80’s are simultaneously critical of punishment as deterrence while also discussing new strategies to apply the SRA retroactively. They knew better than anyone that rehabilitation and punishment were two sides of the same bad coin, but they saw in the SRA the opportunity to leverage shorter sentences.
Dual Sentencing System
As challenges to the ISRB and the dual sentencing system continued, people incarcerated before 1984 existed in a limbo of indeterminate sentencing. In the early 1990s, Ed Mead along with Dan Pens and Paul Wright co-founded Prison Legal News, which published legal analyses from the inside and became a platform for ongoing critiques of the SRA and its inequities. A 1991 issue of Prison Legal News published “Overcrowded and Unfair,” a reflection on the experience of serving indeterminate time in a determinate sentencing world: “SRA prisoners (convicted after July 1, 1984) may argue about the SRA’s merits, however, pre-SRA prisoners do not argue as much. They are sullen and exhausted. They have argued for seven years through every conceivable avenue of appeal that they should be treated like post-SRA offenders… The discharge date of the SRA prisoner is guaranteed – it is a goal that will be reached. The parole date of an old guideline prisoner may be changed wildly, unpredictably, and often irrationally.” The following year, Prison Legal News published a similar sentiment: “No matter what the other injustice and illegalities of the dual sentencing system are, surely this one aspect – the never knowing when – is the cruelest and most insidious of all.”
Black prisoners in particular spoke out against the racial prejudice at play in the ISRB’s sentencing decisions. In 1992, Leland Jordan published “The Continuing Racism Against Black Pre-SRA offenders,” reminding readers that the passage of the SRA was in part due to studies that had found racial discrimination at “all levels of law enforcement… that once imprisoned, Black prisoners were serving more time for the same crimes as committed by Whites.” Leland saw the SRA as a “major step towards lifting the burden of racism off the shoulder of the Black prisoner,” but was concerned for “the Black prisoners who remain under the antiquated indeterminate sentencing and who now stand to lose release dates due to racially motivated circumstances.” Employing the founding logic of the SRA as a “medicine” to racial bias in sentencing, Leland argued that “every Black prisoner in the state of Washington ought to be legally afforded the right to some of that medicine, regardless of the date on which he happened to commit his crime.”
In his personal fight to shorten his sentence in line with the SRA, Ed Mead experienced the whiplash of the dual sentencing system. Mead was one of the 53% of people whose sentence was re-calculated by the ISRB and set far outside the SRA range: they shortened his 20 year sentence to a little over 18 years. When Mead filed a petition challenging his continued incarceration, he was denied both because he was a pre-SRA prisoner and because of the principles of the SRA. The judge ruled that his pre-SRA status meant that the ISRB could consider factors like his behavior inside, his psychological report, and crimes for which he was not convicted in setting his sentence, and further found that Mead’s political activism called for an exceptional sentence under the SRA’s mandate to protect the public. The judge could have it both ways, employing both sides of the dual sentencing system to justify the fact that Mead’s indeterminate sentence was double the SRA range.
Three years later, when Mead was finally granted parole, his parole notice regurgitated the same mixture of indeterminate rehabilitation and determinate punishment: “he has now served just and proportional punishment when considering the SRA, the judge and prosecutors recommendation, and also taking into consideration his own behavior, infraction history, and maturation process over the years.” Caught between the carrot of rehabilitation and the stick of punishment, Ed Mead ultimately served over 17 years.
Legacy of the Sentencing Reform Act
The Sentencing Reform Act transformed the landscape of criminal justice in Washington, although not in the ways reformers claimed it would. The SRA was justified as a tool to address overcrowding in prisons and bias in sentencing, yet prison populations are higher than ever, new prisons continue to be built, and racial disparities persist. This is because the SRA did not address the underlying logic of incarceration, it merely gave it some new clothes. Writing in 1992, Ed Mead distilled the legacy of the SRA:
“Back in 1985 I wrote an article predicting the future impact of Washington State’s then recently adopted Sentencing Reform Act (SRA). The article noted that there would be an initial drop in prison populations, followed by a rapid increase until population levels were once again beyond what could be reasonably tolerated. The piece went on to note that because of the SRA’s focus on violent offenders, the people making up these increases will largely be young men from minority communities in urban areas of the state. This was because the poorest and most oppressed segments of society are the most desperate, and thus more likely to employ violence during the commission of an offense…Whereas the pre-SRA sentencing system was racist by virtue of the individual prejudices of judges and paroling authorities, the racism of the present system is more rooted in the economic inequalities of capitalism. Given this mix of prisons overcrowded with young minorities, the article said, the future for prison stability will be bleak and short lived. This analysis has withstood the test of time. It is coming true with vengeance.”
Indeed, while the SRA caused a momentary dip in the prison population, Washington’s incarceration rate has more than doubled since the 1980s. Researchers at the University of Washington found that the SRA, with its offender score calculation and the shift in discretion from parole officers to prosecutors, has been the major driver of this increase. Despite the fact that property crime peaked in 1988, and violent crime in 1992, Washington’s average sentence length has continued to grow.
The SRA has been amended yearly since 1984. The lasting impact of these amendments has been to change the rules calculating offender scores, often adding enhancements for prior offenses, use of weapons, drug dealing, sex offenses, and other factors, and to extend the sentencing ranges, producing longer and longer sentences. The SRA also shifted power to prosecutors and created the phenomenon of the “trial penalty,” the cost in time served of risking a trial over a plea agreement. Under the SRA, sentences correspond to specific criminal convictions, meaning the prosecutor’s decision to charge a defendant with a more or less serious crime determines their sentence. As mandatory sentences become longer, fewer defendants are willing to risk a trial and are more likely to plead guilty to a shorter sentence through a plea agreement. Federally, the share of cases that go to trial has dropped from 20% in the 1980s, to 3% in the 2010s. This is because the trial penalty is steep: for violent crimes in Washington, sentences set through a trial are 174 months (fourteen and a half years) longer than sentences set through a plea agreement.
Some of the more infamous amendments include: Washington’s “three strikes law,” the first of its kind in the country when it was passed in 1993, which imposed a mandatory life without parole sentence on repeat offenders; the “hard time for armed crime” weapons enhancement that automatically increases sentence length when a weapon is involved; and the “youth auto-decline” rule, which automatically prosecutes juveniles convicted of certain crimes as adults. The University of Washington found that these long and life sentences are disproportionately levied against people of color, in particular Black and Native American people.
Amazingly, the ISRB still exists today. It now oversees the fates of three SRA-created populations: those convicted before July 1, 1984; people convicted of certain qualifying sex crimes after September 1, 2001; and youth under 18 who have been sentenced as adults.
Punishment won the day, not just in Washington, but around the country. The SRA exemplified the get-tough approach that has defined mass incarceration nationwide, with its own bureaucratic twist. The languishing uncertainty of pre-SRA prisoners whose fates were tied to the whims of the ISRB, contrasted with those serving mandatory life sentences without parole under the SRA, should be proof enough that prison itself is the problem. Incarcerated people know this, and their experiences and analysis of the SRA are a window into an abolitionist politics that engages with reform insofar as it improves their conditions while never accepting its claims of benevolence and always pushing for alternatives to incarceration.
Andrea Berg is a student in the MLIS program at the University of Washington and member of the Abolitionist Library Association.