Gov. Gregoire: One Tough Clemency Judge

When Barry Massey was first incarcerated, he was scared of the dark. He was 13, but a psychologist who examined him prior to sentencing assessed his mental age at 9.9 years. "Passive and naive," and the kind of kid who worried about tests and getting called on by the teacher, according to the psychologist. He couldn't sort by color or shape, a skill most children have by 7 or 8.

Yet Massey had participated in a murder. On Jan. 10, 1987, he and a friend two years older had embarked on a petty robbery at a store along the Steilacoom marina. Before they left the store, owner Paul Wang had been shot and stabbed seven times.

Whether Massey or his friend did the actual killing is a matter of contention. Yet, as with many criminal charges, an accomplice can be convicted of aggravated first-degree murder, and Massey was. Tried as an adult, he received the harshest sentence ever imposed in this country on someone so young: life without possibility of parole.

Just shy of 20 years later, his appeals exhausted, Massey addressed the one body that might offer him a shot at mercy: the Washington State Clemency and Pardons Board. Its five members advise the governor on exercising her absolute power to commute sentences or pardon people who've been convicted.

"What I took away from the children of Mr. Wang is very clear," Massey said last September, speaking to the board by phone from the Monroe Correctional Complex. "If I could express my remorse in a better way...." His voice was trembling, and he stopped short several times. "I believe I can help save other troubled kids.

"I'm 33 years old now. My outlook on life has changed dramatically."

In prison, Massey had obtained his GED, worked diligently at various prison jobs, and become active in numerous programs, particularly a panel of carefully chosen inmates that gives talks to at-risk kids who visit the prison. He also developed an interest in exercise that had him teaching a fitness class inside the prison three days a week.

Unusually, two of Massey's onetime guards came to the board's Olympia meeting room to testify on his behalf. Even more sent letters. Officer Shane Zey wrote that he was a "white male right-wing Republican" whose first reaction upon hearing of the Massey case many years ago was that the state should "put him to death like he did his victim." Now, he wrote: "If Barry Massey were to be granted clemency and moved in next door to me, I would greet him with open arms."

The Pierce County Prosecutor's Office and the family of Massey's victim had a different view.

"I lost my childhood too," wrote Paul Wang's daughter, Elissa, in a letter read aloud at Massey's hearing. "So did my brother. And we didn't kill anyone. What Barry has paid so far, we paid too. So how is it that Barry has paid enough?"

Questioning Massey's remorse, widow Shirley Wang told the board, "The only way for Massey to show he accepts responsibility for brutally taking away my husband's life is for Massey to accept the punishment that society has determined appropriate for his crime: life in prison without parole."

A month later, the clemency board made its decision. By a 4-1 vote, it recommended that the governor let Massey out of prison—in five years, provided he commits no infractions.

Robert Winsor, then the board chair, cited Massey's "remarkable record" at Monroe and said: "The main problem I have is that a decision made by a 13-year-old could defeat his ability to ever get out of prison."

The board typically votes to let people out of prison at most a handful of times a year. In the past year, the board received 133 petitions for relief. Most of those cases involved people who had already served their sentence and were seeking either pardons or restoration of their civil rights (the board can grant the latter on its own, without the governor's approval). The board recommended or granted relief in just 14 cases in the past year.

The decision on the nationally known Massey case pleased those in the legal community who objected to his life sentence. "There's an international treaty signed by every country in the world but us that you can't give children life without parole," says Seattle defense attorney Tim Ford. (There's actually one more country that hasn't signed the Convention of the Rights of the Child: chaotic, war-ravaged Somalia.)

Adds Neil Fox, another local defense attorney, "To me, it's an outrage to punish children as adults, especially now there is clear evidence that juvenile brains are not fully developed," a point raised by Massey's attorneys before the clemency board.

In March, Gov. Christine Gregoire weighed in. In a two-paragraph letter to Massey's lawyers that offered no explanation, she rejected the clemency board's advice. "The Governor carefully considered Mr. Massey's petition and the Board's recommendation, but arrived at a different conclusion," the letter from the governor's general counsel said. She invited Massey to reapply in three years.

Since taking office in January 2005, Gov. Gregoire has rejected the board's recommendation for clemency seven times, according to a Seattle Weekly review of clemency records. That's out of 19 board recommendations on which she's taken action. By contrast, her predecessor, Gary Locke, spurned the board's advice just nine times over the course of eight years in office, during which he acted on more than 70 board recommendations.