Maybe it was her background as an 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 often than her predecessor Gary Locke had, denying even cases that the state Clemency and Pardons Board thought warranted mercy.
"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 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 last week, Gregoire granted 10 pardons or commutations, including two of Ellis' clients: Stonney Marcus Rivers, sentenced to life on a three-strikes-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 Wharton, now 49, 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 nonviolent cases, prosecutors will now frequently downgrade a charge so that it doesn't trigger a three-strikes penalty. About five years ago, King County Prosecutor Dan Satterberg launched a review of old cases to address what he said was an inconsistency between the way his office had been handling cases prior and the way they were handled at the time. And he began to support 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 crack habit, since broken. Fox also supported Wharton's clemency petition, as did conservative radio personality John Carlson, who'd co-authored the three-strikes law.
In a letter to the board, Carlson said he had supported clemency only once before for a three-striker (Stevan Dozier, whose 1994 robbery conviction resulted in an automatic life sentence). Wharton earned his support, Carlson said, because of his "sincere, repeated, and successful" efforts to address his drug addiction and his "efforts to help younger inmates turn their lives around."
On Dec. 7, the board voted unanimously to recommend clemency. A little over a month later, Gregoire told Wharton's attorney, Harry Schneider, that she hadn't had sufficient time to review the case, and that it would be 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 his first term is up.