One in seven prisoners in the United States is serving life sentences and two-thirds of those people who are serving life sentences are people of color. A large contributor to the growing population of inmates serving life sentences is habitual offender laws. As a result, some states are reviewing sentencing and habitual offender laws and the racialized outcomes they produce. These efforts can lead to impactful change but require collaborative efforts from courts, prosecutors, and defenders alike as demonstrated in Washington.



Washington State’s three strike law was passed in 1993. These types of laws spread nationwide and at least 24 states passed similar laws. In Washington, ballot initiative 593, brought by Ida Ballasiotes, simply read, “[s]hall criminals who are convicted of 'most serious offenses' on three occasions be sentenced to life in prison without parole?" The initiative eventually applied to over 50 felonies in the three strikes law. Legislative advocates, such as Gary Locke and Jesse Wineberry, worked to introduce less strict measures and remove robbery in the second degree and assault in the second degree because it would be “disastrous for poor communities[,]” but their advocacy was unsuccessful.


In the past two years, Washington’s legislature passed two bills, SB 6164 and SB 5288, to address the disproportionate impacts the three strikes law and aggressive sentencing have had in the state. In 2019, SB 5288 removed robbery in the second degree from the list of offenses that trigger Washington’s three strikes law. When the bill was originally introduced it included a retroactivity clause to resentence individuals who were convicted of robbery in the second degree. Id. This language was removed from the final version of the bill. This change in retroactivity left 62 inmates serving life sentences for a crime that no longer would trigger the three strikes law. Half of these inmates are Black, but the Black community only comprises 4 percent of the state population.


This year, SB 6164 allows prosecutors “the discretion to petition the court to resentence an individual if the person's sentence no longer advances the interests of justice.” The law allows a judge to weigh


the inmate's disciplinary record and record of rehabilitation while incarcerated; evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate's risk for future violence; and evidence that reflects changed circumstances since the inmate's original sentencing such that the inmate's continued incarceration no longer serves the interests of justice.


Senator Manka Dhingra, who is a prosecutor and sponsor of the bill, said that prosecutors “have a responsibility to do justice, not simply get convictions, not simply send individuals to prison, but to do justice” and that “this bill is about ensuring that our dedicated, thoughtful prosecutors who are tasked with doing justice have the tools they need to do simply that, justice.” This law is similar to California’s AB 2942, but unlike California’s bill there is no option for judicial initiation of review and resentencing.

Recently, in Clark County, Washington, Mike McKay leveraged the growing support for resentencing and rehabilitation for one of his clients. In 1999, Mr. McKay’s client had pled guilty to a charge of robbery in the second degree and was sentenced to life in prison without the possibility of parole. Recently, Mr. McKay’s client was diagnosed with Stage IV Pancreatic Cancer. Knowing that his client had served his time and become rehabilitated after his conviction, he wrote the local prosecutor asking him to consider a petition to the court to resentence his client and secure his release. He pointed out that under current law, his client’s standard sentencing range would be 43 to 57 months.

Mr. McKay and the Clark County Prosecutor’s Office agreed to file a joint petition to withdraw his client’s guilty plea and enter a plea to an amended charge. But as the client’s health deteriorated and it appeared that transporting him to court would be dangerous, the prosecutor moved to dismiss the robbery charge. The judge granted the motion and Mr. McKay’s client was released from prison.

The Seattle Clemency Project has begun working with prosecutors, encouraging them to exercise their discretion and to resentence individuals.  Jennifer Smith, the Co-Founder and Executive Director of the Seattle Clemency Project, stated that


the overly punitive sentencing system we have developed over the last 30 years is complex and no single group is responsible for the harm.  But, when you step back and look at the disparate impact harsh sentencing laws have on communities of color, how excessive sentences have fractured our communities, and the unsustainable costs of maintaining excessive sentences, it becomes clear that we all need to do our part to improve the system now, including looking back to correct sentences that no longer serve a purpose. 


Ms. Smith believes that leveraging SB 6164 in concert with the Washington’s Superior Court Criminal Rule 7.8(b)(5), which allows relief from a judgment for “[a]ny other reason justifying relief from the operation of the judgment[,]” prosecutors have the opportunity to be the agents of reform. Ms. Smith plans to work with her organizational partners and utilize the About Time report authored by Katherine Beckett and Heather D. Evans of the University of Washington to provide evidence to support resentencing by prosecutors. This report explains the reasons for the growth of Washington’s prison population and how “long and life prison sentences are a costly and ineffective means of protecting public safety.”

Washington’s new legislation created a new opportunity to advance just outcomes for individuals who are serving life sentences. In addition, after the death of George Floyd, the Washington State Supreme Court wrote an open letter to the legal community addressing the role racial injustice plays in the legal systems and the court’s role in eradicating racism. In that letter the Court acknowledged that the legal community “bear[s] responsibility for [these] on-going injustice[s]” and that “that even the most venerable precedent must be struck down when it is incorrect and harmful.”

Now is the time to tackle the injustices that Black and Indigenous people and people of color have experienced and to seek resentencing for inmates who are serving life in prison. Washington can serve as an example of taking the incremental steps toward justice and of a framework to aid those who are serving a sentence that is excessive. States can and should do more to reevaluate sentencing for inmates serving life sentences, and public defenders now have a political movement and examples to help advance these changes.