CLO’s Response to COVID-19: Restore Earned Release Time to Reduce Prison Populations

By the Concerned Lifers Organization, Washington State Reformatory

The Concerned Lifers Organization’s Legislative Committee urges advocates to push for a specific legislative fix to COVID-19’s threat to prisoners: Restore earned release time (ERT) to one-third on all convictions without exclusions for mandatory minimum terms, sentence enhancements, or other provisions that prevent good time on any portion of a sentence.

As the pandemic grows more severe and deadly each day, we recognize the need to quickly reduce the prison population. In an environment defined by cramped and crowded quarters, mandatory pat searches, and lines for food, phones, and everything in between, social distancing is impossible. This leaves the roughly 18,000 people in Washington State prisons unprotected against the very-real threat of an outbreak. Something must be done.

We believe restoring ERT, without exclusions, to the Sentencing Reform Act’s original one-third level is that something. This will allow us to:

• Immediately release many well-behaved prisoners,
• Move many others out of prison and onto the graduated reentry track, and
• Promote positive behavior after release.

We recognize that other solutions are being considered—releasing everyone over 50, those with less than 18 months remaining, and those with severe health issues—however, we are concerned that creating relief for people who have short sentences has the potential to hinder the greater sentence-reform movement as these people are statistically the most likely to recidivate. The other solutions are still worth pursuing, carefully, but we believe more sweeping solutions that contain behavior-based selection criteria should be sought at the same time.

Where Did Earned Release Time Go?
When Washington implemented the Sentencing Reform Act in 1984, every prisoner not serving life without parole could earn up to one-third off his or her entire sentence. Former RCW 9.94A.150. DOC rolled out two specific procedures to animate this promise: First, inmates could earn 10 days “good conduct time” per 30 days served for exhibiting good behavior and not committing serious infractions (In re Cromeenes, 72 Wn. App. 353, 355 (1993)). Second, inmates could earn 5 days “earned time” per 30 served for participating in programs like work, academics, or substance abuse counseling (Id). Combine, these comprised “earned release time”–and while their total could reach half (15 days per 30 days served) of the time served, “[i]n no case could the aggregate earned release time exceed one-third of the total sentence” (Id).

In the years since, this earned-release-time level has been slashed for many prisoners. In 1990 then-Governor Booth Gardner established a Task Force on Community Protection that recommended ERT for any class A sex offense be reduced to fifteen percent. (See In re Mahrle, 88 Wn. App. 410, 412 (1997)). Once this recommendation became a bill and entered the Senate, however, it was amended to include all serious violent offense class A felonies. The bill ultimately passed.

An interesting side note: Since 2001 most class A sex offenses now receive a determinate-plus sentence where the court imposes a life sentence and a minimum term at which the offender will go before the Indeterminate Sentencing Review Board. The level of earned release time is largely irrelevant because, until the Board finds by a preponderance of the evidence that the offender will not commit a new sex offense if released, the person must stay in prison (RCW 9.95.420(3)). So the population that sparked the gradient approach to good time is now largely unaffected by it.

The next development affecting ERT came in the Persistent Offender Accountability Act (Initiative 593), more commonly known as the “three strikes law.” While the leading component of this initiative produced life-without-parole sentences for people convicted of their third serious violent offense, it also implemented mandatory minimum terms for certain crimes. These terms are insulated from ERT, meaning a person must serve them in their entirety before beginning to accumulate ERT.

Then in 1995 the Hard Time for Armed Crime Act (Initiative 159), among other things, precluded ERT from accruing during any deadly-weapon-enhancement portion of a sentence.

Finally, in 2003 the ERT for all serious violent offenses was reduced to ten percent.

Together these changes result in many inmates serving twenty or more years while receiving a year or less of earned time.

What We Should Do
Earned release time, much like parole, “is designed to recognize, reward, and motivate good behavior in prison, and it acknowledges the fact that people’s consequential thinking, remorse, maturity, and risk to public safety changes over time—and reflects a belief that sentences should reflect those changes” Danielle Sered, Until We Reckon (2019), p. 54.

Restoring ERT to one-third would make many prisoners who have matured and pose no threat to public safety immediately eligible for release, and others ready for home monitoring under the graduated reentry program.
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It would also promote positive behavior after release. Ex-prisoners would be placed on community custody, giving DOC “the legal responsibility for adjudicating violations” (WAC 137-30-020). And if violations were repeated or severe, DOC could convert the earned release time to return time and send the person back to prison (WAC 137-30-080(2)(b)).

Conclusion
Other options currently being considered would provide some relief and should be pursued, but they lack behavior-based selection criteria, leaving them vulnerable to opposition. Restoring ERT, on the other hand, does not suffer that shortcoming. It is a key fix that should accompany any sought-after solution.