Maybe it was her background as attorney general, or maybe it was her natural inclination, but as governor, Chris Gregoire was an extraordinarily tough clemency judge. She granted leniency far less than her predecessor Gary Locke, denying even cases that the state Clemency and Pardons Board thought warranted mercy.
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"Her standards were tough and stayed tough until the end," says Jeff Ellis, a Portland-based defense attorney who worked on several clemency cases in Washington. "Also, she never used her never used her clemency power in a political way. Status or who you know did not make a difference."
That's not to say she didn't loosen up just a bit in her final days. Before leaving office yesterday, Gregoire granted 10 pardons or commutations, including two of Ellis' clients: Stoney Marcus Rivers, sentenced to life on a three-stikes-and-you're-out conviction after a motel room robbery; and Ethan Durden, who burglarized the homes of drug dealers, earning a 22-year sentence.
Not so lucky was Joseph Scott Wharton.
When the now 49-year-old Wharton was sentenced to life in 1997, King County Superior Court Judge Michael Fox declared the case "tragic." Wharton had committed a string of robberies in Kent, earning him a third strike. "Certainly, there were instances where victims were scared out of their wits and felt threatened, and these are very serious crimes," Fox observed as he sentenced Wharton, according to The Seattle Times. ""But Mr. Wharton never struck anybody, he never shot anybody or stabbed anybody."
Yet, he said the three-strikes law gave him no choice but to condemn Fox to prison for the rest of his life.
In recent years, though, prosecutors have realized that they have far more discretion under the three-strikes law than previously thought. In non-violent cases, prosecutors will now frequently downgrade a charge so it doesn't trigger a three-strikes penalty. About five years ago, King County Prosecutor Dan Satterberg launched a review of old cases handled by his office to address what he said was the inconsistency between the way cases used to be handled and the way they are handled now. And he began supporting clemency petitions for those he felt had been unfairly sentenced.
Wharton made Satterberg's list. In a November letter written to Gregoire and the state Clemency and Pardons Board, Satterberg noted that Wharton's crimes were driven by his then crack habit, since broken. Judge Fox also supported Wharton's clemency petition, as did conservative radio personality John Carlson, who co-authored the three-strikes law.
In a letter to the clemency board, Carlson said he had only supported clemency once before for a three-striker, in the case of Stevan Dozier. Wharton earned his support, Carlson said, because of his "sincere, repeated and successful" efforts to address his drug addiction as well as his "efforts to help younger inmates turn their lives around."
The board voted unanimously to recommend clemency on Dec. 7. A little over a month later, the governor told Wharton's attorney, Harry Schneider, that she didn't have sufficient time to review the case and that it was best handled by the new governor.
"The clock ran out," says Satterberg. "Nobody knows how long it will take the new governor to turn his attention to clemency and pardons, but it typically takes at least a few years for new administrations to get comfortable with the exercise of that extraordinary power."
Still, Schneider says he's hopeful that Jay Inslee will tackle the case at least before the governor's first term is up.