Category Archives: Prison

U.S. Prison Trends

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Mass Incarceration, Then and Now | The New Yorker

The Sentencing Project devised a fact sheet which provides a compilation of major developments in the criminal justice system over the past several decades. Some highlights are as follows:

  • Mass Incarceration – The United States is the world’s leader in incarceration with 2 million people currently in the nation’s prisons and jails — a 500% increase over the last forty years.
  • Drug Policy – At the federal level, people incarcerated on a drug conviction make up nearly half the prison population. At the state level, the number of people in prison for drug offenses has increased nine-fold since 1980, although it has begun declining in recent years.
  • Racial Disparities – Black men are six times as likely to be incarcerated as white men and Latinos are 2.5 times as likely. For Black men in their thirties, about 1 in every 12 is in prison or jail on any given day.
  • Youth – Although youth detention populations are declining, youth of
    color enter the system much more frequently than white youth and are more likely to be sentenced to harsher terms of punishment. In addition, young people are transferred to the adult system each year and tried as if they were adults, and many are sent to adult prisons and jails to serve their sentences.
  • Felony Disenfranchisement – As of 2020, 5.2 million Americans were unable to vote due to state felony disenfranchisement policies.
  • Life Sentences – The number of people serving life sentences endures even while serious, violent crime has been declining for the past 20 years. This population has nearly quintupled since 1984. One in seven people in prison are serving life with parole, life without parole, or virtual life (50 years or more).

The Sentencing Project is a non-profit agency that promotes effective and humane responses to crime that minimize imprisonment and criminalization of youth and adults by promoting racial, ethnic, economic, and gender justice.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prison Inmates Retaliated Against for Getting COVID-19

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Image result for jail inmates getting covid

Excellent article by Lilly Fowler of Crosscut reports that prisoners, attorneys and other advocates said the WA Department of Corrections has not only been careless with protocols meant to keep COVID-19 cases in check, but has also lashed out at those who become ill.

They accuse the department of stigmatizing those who become sick with the virus, even as cases skyrocket in prisons and work release facilities across the state. Critics blame the department’s lack of an organized response for the rapid spread of the virus.

Apparently, the Office of the Corrections Ombuds, the state’s watchdog, has already found fault with the Department of Corrections’ response to the COVID-19 outbreak at the Coyote Ridge Corrections Center in Central Washington. Two people there died in June, and more than 300 prisoners and 100 staff have been infected. Coyote Ridge houses approximately 2,500 inmates.

In a report about the COVID-19 outbreak at Coyote Ridge, investigators said that in addition to guards not wearing masks and failing to isolate symptomatic prisoners, inmates had delayed reporting symptoms because they feared harsh conditions in solitary confinement. The two prisoners who died had waited days to report difficulty breathing, according to the investigation.

That same summer, families of prisoners accused the Department of Corrections of retaliating against six men who contracted the virus and were housed at Reynolds Work Release in downtown Seattle. Similar to other inmates at the Bishop Lewis Work Release facility, the so-called Reynolds six were sent back to prison. Although they were eventually released, the men had been singled out in part because they are Black, Muslim or Indigenous, their families said.

According to reporter Lilly Fowler, critics say the situation at Bishop Lewis shows that the Department of Corrections’ response to the pandemic isn’t improving even nearly a year into the public health emergency. Instead, the same patterns are emerging. They argue it’s time for Gov. Jay Inslee to reconsider doing more to reduce the prison population, or at the very least ensure those who become ill and speak up aren’t retaliated against.

My opinion? The Coronavirus Pandemic has threatened to turn jail sentences into death sentences. Therefore, anyone involved in the criminal justice system should do their very best to avoid jails and prisons. Convicted defendants who are sentenced to jail should seek jail alternatives. And anyone who is in jail facing criminal charges who can make bail should make bail, or at least get bail lowered to an affordable amount.

Please review my Legal Guide titled Making Bail and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Inmates Sew Gowns & Masks In Fight Against Coronavirus

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Members of the Washington Correction Center for Women’s Sisters of Charity stitch gowns to be donated to area fire and rescue, as well as masks for inmates. (Courtesy of Washington Corrections Center for Women)

Great article by Seattle Times staff reporter describes how inmates sew masks and gowns in the fight against Coronavirus.

The group, called the Sisters of Charity, formed about 20 years ago at the Washington Corrections Center for Women (WCCW) in Gig Harbor – many of whom are serving life sentences – make items from donated materials for about 30 different charities.

Reporter Scott Hanson reports that South King Fire & Rescue needed protective gowns for an anticipated surge in coronavirus cases this fall and winter, and the group was happy to help. Not only have they made 700 gowns for South King Fire & Rescue, they also made 300 for the Gig Harbor Fire Department, with 600 more on order.

“I think this project meant so much because it was a call to action and an opportunity for them to be part of their community despite the walls,” said Carrie Hesch, WCCW’s recreation and athletic director. “They are absolutely thrilled to be able to do something for the community and stay busy.”

In one project home improvement giant Lowe’s donated Tyvek, a fabric used in protective gear, and the group used an assembly-line process that allowed workers to keep socially distant; two groups of 15 worked in rotating shifts.

One gown can be made every 13 minutes, depending on the skill level of the seamstress. In two weeks, the first 700 were made. Then came the 300 for Gig Harbor. The group is also making masks for the incarcerated and has produced more than 4,000.

Great job, ladies!

Also, excellent reporting from Scott Hanson. His article is one in a periodic Seattle Times series called Stepping Up, highlighting moments of compassion, duty and community in uncertain times.

Please contact my office if you, a friend or family member face criminal charges during the Coronavirus Pandemic. Hiring an experienced criminal attorney is the first and best step toward justice.

Nearly 1,000 Inmates To Be Released In Washington State

ACLU, Bellingham Defense Attorney, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Virginia begins releasing new data about COVID-19 in prisons

Apparently, Gov. Jay Inslee announced that Washington state intends to release up to 950 inmates confined in Washington state prisons — a reduction of about 6 percent, based on 2019 inmate numbers — to stop a potential widespread outbreak of COVID-19 in the prison.

Inslee and the Washington State Department of Corrections released their emergency plan to keep inmates safe from COVID-19 on Monday, after a back-and-forth of lawsuit responses between the state and Columbia Legal Services.

Columbia Legal Services had filed a petition in April, with the Washington Supreme Court on behalf of incarcerated petitioners. It called for the prompt release of thousands of prisoners to prevent the further spread of Covid-19 behind bars.

As of April 10, 2020, the department has tested 237 inmates and has had 179 negative results, 8 positive results. Fifty test results are pending. According to the department of corrections, the people tested have been isolated. As of April 10, 161 inmates remain in isolation. Another 912 others are in quarantine.

Jaime Hawk, of the ACLU’s Washington Campaign for Smart Justice, called the plan a helpful first step, but said it doesn’t remove the dangers of Covid-19 for incarcerated people in Washington state.

“We urge the governor and the Department of Corrections to do more to reduce state prison populations, which is the only way to follow the advice of public health experts and keep those living and working in our correctional facilities safe.”  ~Jaime Hawk, ACLU

The state’s plan will target people for release who are:

• Non-violent inmates, both vulnerable and non-vulnerable, who have a release date within 75 days.

• Non-violent inmates and vulnerable inmates who have a release date in 2 to 6 months. They will be released through a re-entry planning process.

• Non-violent inmates and vulnerable inmates who have a release date in 6 to 8 months, with an approved release plan.

• Non-violent inmates who were jailed for lower level supervision violations

• Non-violent inmates who are already on work release and can be freed through the secretary’s furlough authority.

Please read my Legal Guides titled Making Bail and Quash Your Bench Warrant and contact my office if you, a friend of family member find themselves stuck in jail or prison during the Coronavirus Pandemic.

Criminal Justice Bills Passed & Failed in the Senate

Bellingham Defense Attorney, Department of Corrections, Juvenile, Legislation, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Voting Rights, Whatcom County Criminal Defense, , , , ,

2019 Criminal Justice Reform | ACLU West Virginia

Several bills recently passed and failed in the Senate, covering a wide array of issues related to criminal justice. These bills all now head to the House  in the coming weeks as the legislative session reaches month two. Here’s a  summary of some of the bills that passed and failed.

PASSED BILLS

Senate Bill 6442 would ban the operation of private, for-profit prisons in the state, as well as prohibiting the Department of Corrections (DOC) from contracting with these prisons. The bill also limits the circumstances under which the state can transfer an inmate from a Washington facility to an out-of-state private prison or detention facility.

Image result for private prisons are bad

According to the text of the bill, the legislature found that for-profit prisons prioritize shareholder profits over the provision of health care, safety and nutrition to inmates, among other basic human needs, and that the operation of private prisons runs counter to the state’s mandate to ensure health, safety and welfare of those incarcerated in the state’s criminal justice system. If the bill passes, Washington would join 22 other states in banning for profit prisons.

Senate Bill 5488 would allow judges greater discretion when deciding cases involving adult defendants who are charged with committing a crime while under age 18. The bill grants judges the authority to consider the defendant’s age, lack of sophistication, susceptibility to peer pressure and age at the time the crime was committed.

Image result for juvenile justice

Judges overseeing these types of cases could refrain from imposing the mandatory sentencing requirements after considering the circumstances surrounding a defendant’s youth at the time the crime was committed, allowing the judge to impose a lesser sentence than what law requires.

FAILED BILLS

SB 6228, also called the “Felony Voting Rights Bill,” introduced legislation to automatically restore the voting rights of convicted felons when they are released from prison. However, the bill died unexpectedly in the Washington state Senate Wednesday. Majority Democrats abruptly ended debate on the controversial bill Wednesday evening when they realized they lacked the 25 votes needed to pass the measure.

Image result for felony voting rights

“We are extremely disappointed that the voting rights restoration bill did not pass,” said the ACLU of Washington in a statement Wednesday evening. “The right to vote is fundamental to our democracy and the time to tear down these barriers is long past due.”

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced attorney is the first and best step toward achieving justice.

Support Legislation Ending Felony Charges for Missing a Court Hearing

Bail, Bail Jumping, Bellingham Defense Attorney, Criminal Justice, felony, Jail, Legislation, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for jumping bail

Did you know that a person who misses just one court hearing can be charged with Bail Jumping and be convicted of a new felony simply for missing that court hearing?

Fortunately, legislation proposed by WA Representative Mike Pellicciotti could possibly end this travesty.

THE PROBLEM

When the Legislature enacted the “Bail Jumping” statute, the intent wasn’t to criminalize every missed court date or failure to appear (FTA), rather lawmakers wanted to give the courts a tool to deter people charged with serious crimes from fleeing.

The legislature gave discretion to prosecutors to add a felony charge if someone “jumped bail.” Sadly, this prosecutorial discretion is being overused. The charge of “Bail Jumping” has now led to a long list of unintended consequences that disproportionately harm Washington’s low income and most marginalized citizens.

Research shows that most people charged with “Bail Jumping” were not intentionally avoiding court. Many had difficult life circumstances that made it hard or impossible to attend a court hearing on a particular day. They were not fleeing from the court, and they wanted to resolve their cases.

Research also shows that many people who miss court are experiencing difficulties with transportation, childcare, job disruption, homelessness, health problems, mental illness and other challenges related to poverty. Under current “bail jumping” laws, Washington disproportionally and unjustly allows for longer criminal sentences for people who are low-income or experiencing a crisis for the charge of “Bail Jumping” even though that was never the legislature’s intent.

THE SOLUTION

WA HB 2231 is legislation would would amend the current Bail Jump statute in two ways: (1) it makes bail jumping a misdemeanor, and (2) it requires the state to prove that a person received written notice of the court date that the person missed.

Here is a position paper about the bill. It is supported by the WDA, ACLU, WACDL, the Northwest Community Bail Fund and numerous other organizations.  This bill sponsored is by Mike Pellicciotti of the (Democratic Party). He is a member of the Washington House of Representatives, representing District 30-Position 1.

My opinion? This is great legislation.

Please contact my office if you face felony charges which include Bail Jumping. These charges are often used by prosecutors to coercively leverage a plea. Although there are substantive defenses to the charge, those who face barriers getting to court are frequently subject to this coercive manner of resolving cases that results in an unjust and disproportionate number of convictions for the most vulnerable.

Reconsider Long Prison Sentences?

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Image result for old man in prison

Excellent article in Inside Sources by director of Strategic Initiatives at The Sentencing Project argues our society must reconsider long prison sentences.

Gotsch writes that a measure of rationality has come to federal sentencing after President Trump signed the First Step Act. The legislation has led to almost 1,700 people receiving sentence reductions, most of whom have been freed. Ninety-one percent are African American. Douglas and dozens of others sentenced to die in prison are among the beneficiaries.

The U.S. Sentencing Commission reports that the resentencing provisions of the First Step Act reduced the average sentence of 20 years by an average of six years for those who qualified.

“The reductions, while modest, are profound for the people and families ensnared by long prison terms, and who have been generally left out of criminal justice reforms until now,” writes Gotsch.

“Congress should take its next step to address a broader cohort of incarcerated people with lengthy sentences.”

Gotsch’s arguments hinge on the fact that lengthy prison sentences seem inappropriate for prison populations that essentially “age out” of crime. Half of the people in federal prisons are serving sentences longer than 10 years. Almost 20 percent of the population is more than 50 years old.

“Criminal justice research has long confirmed that people generally age out of crime, so long sentences provide diminishing returns for public safety,” says Gotsch. “Tax dollars that could be used to invest in youth, improve schools, expand drug treatment and medical and mental health care, are instead invested in prisons to incarcerate a growing elder population despite their limited likelihood of recidivism. Policy should reflect the research.”

The Second Look Act, newly introduced sentencing reform legislation from Senator Cory Booker and Representative Karen Bass, follows the lead of experts on crime and punishment and offers a transformational approach. The bill seeks to curb long sentences by offering a sentencing review by a federal judge to people with sentences longer than 10 years. Individuals who have served at least 10 years must show they are rehabilitated and are not a threat to public safety to qualify for a sentence reduction. People who are 50 or older would have a presumption of release because of their substantially lower recidivism rates.

“For the bipartisan lawmakers in Washington, and the 2020 presidential candidates who have pledged to address the problems in the criminal justice system, a broader approach to challenge mass incarceration and promote public safety is long overdue,” says Gotsch.

Please contact my office if you, a friend or family member face criminal charges which could include a prison sentence. It’s very important to hire an experienced, competent competent attorney who can either prepare a strong case for jury trial or navigate a plea deal which avoids prison.

Are Long Prison Sentences Necessary?

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Image result for free from prison

Excellent article in Politico Magazine from Ben Miller and Daniel S. Harawa highlights a pressing related problem in our criminal legal system: the lack of meaningful mechanisms in place to allow people in prison to obtain release once they have proven to no longer pose a danger to our communities, or in some cases, proven to be actually innocent. As the authors succinctly said:

“For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer. We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence.”

Moreover, the authors argue that legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

LONG PRISON SENTENCES DO NOT REDUCE CRIME.

“We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety,” said the authors. “But sending people to prison for long periods does not reduce crime.”

In fact, longer sentences, if anything, create crime. David Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Additionally, the authors say that not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities. As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.” While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering. For example, U.S. prisons spend $16 billion per year on elder care alone. Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, the authors say, we need to pursue every option that would safely reduce our prison population. One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison. Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old. Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

And numerous studies have shown that decreasing sentences does not increase crime. A recent Brennan Center for Justice report documented 34 states that reduced both their prison population and their crime rates, the Sentencing Project concluded that unduly long prison terms are counterproductive for public safety, and the Justice Policy Institute found little to no correlation between time spent in prison and recidivism rates.

My opinion? Some crimes need punishment. However, we have forgotten that our justice system is supposed to rehabilitate people, not just punish them. Our policies should reflect the ability of people to change over the course of years—or decades—of incarceration.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

More Women In Prison

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Aging in Prison: The Forgotten Plight of Women Behind Bars | Center for Health Journalism

Interesting article by the Sentencing Project reveals a profound increase in the involvement of women in the criminal justice system.

The article explain this is a result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women. The female prison population stands nearly eight times higher than in 1980. More than 60% of women in state prisons have a child under the age of 18.

Some specific points of interest:

  • Between 1980 and 2017, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 225,060 in 2017.
  • Though many more men are in prison than women, the rate of growth for female imprisonment has been twice as high as that of men since 1980. There are 1.3 million women under the supervision of the criminal justice system.
  • In 2017, the imprisonment rate for African American women (92 per 100,000) was twice the rate of imprisonment for white women (49 per 100,000).
  • Hispanic women were imprisoned at 1.3 times the rate of white women (67 vs. 49 per 100,000).
  • The rate of imprisonment for African American women has been declining since 2000, while the rate of imprisonment for white and Hispanic women has increased.
  • Between 2000 and 2017, the rate of imprisonment in state and federal prisons declined by 55% for black women, while the rate of imprisonment for white women rose by 44%.
  • The rate at which women are incarcerated varies greatly from state to state. At the national level, 63 out of every 100,000 women were in prison in 2017.2) The state with the highest rate of female imprisonment is Oklahoma (157) and the state with the lowest incarceration rates of females is Massachusetts (9).
  • Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 14% of men in prison; 26% of incarcerated women have been convicted of a property crime, compared to 17% among incarcerated men.
  • The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2017.
  • Of the 48,043 youth in residential placement, 15% (7,293) are girls.
  • As with boys, girls are confined considerably less frequently than at the start of the century. In 2001, 15,104 girls were confined in residential placement settings. By 2015, this figure had been cut in half.
  • Girls of color are much more likely to be incarcerated than white girls. The placement rate for all girls is 47 per 100,000 girls (those between ages 12 and 17). For white girls, the rate is 32 per 100,000. Native girls (134 per 100,000) are more than four times as likely as white girls to be incarcerated; African American girls (110 per 100,000) are three-and-a-half times as likely; and Latina girls (44 per 100,000) are 38% more likely.
  • Though 85% of incarcerated youth are boys, girls makeup a much higher proportion of those incarcerated for the lowest level offenses. Thirty-eight percent of youth incarcerated for status offenses (such as truancy and curfew violations) are girls. More than half of youth incarcerated for running away are girls.

My opinion? Researchers have consistently found that incarcerated women face different problems than men, and those issues are often exacerbated by incarceration. Women are more likely to have a history of abuse, trauma, and mental health problems when they enter prison, but treatment is often inadequate or unavailable in prisons. The health systems in prison often fail to meet women’s unique physical health needs, including reproductive healthcare, management of menopause, nutrition, and treatment for substance abuse disorders.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Jail Mail

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jail, Prison, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.