New Details Call Washington’s Carceral “Take-Backs” into Question

We have new information on exactly how the Washington Department of Corrections is rounding up people it had mistakenly released from prison. This excellently reported article in the Seattle Times by Lewis Kamb and Joseph O’Sullivan provides the details, which answer some of my previous questions. Whether the answers are comforting…. that’s another matter. Here’s how the article starts:

The phone call came midway through her shift as a waitress at a roadside casino. Three armed officers had shown up at her mother’s Issaquah home, looking for Rachel Patterson. Now, a state corrections officer was telling her to surrender.
“He explained we miscalculated your time and basically told me if I don’t turn myself in immediately, I would be in more trouble,” Patterson said.
For three months, Patterson, 29, had been free; a three-year prison sentence for felony assault was behind her. And she’d been doing well, she said: She landed a job, passed all drug tests, hadn’t committed any new crimes.
Then came the call, and within a few hours, Patterson was wearing a red jail uniform and under a “no-bail hold.”

On the process she received before her re-incarceration:

“They didn’t fingerprint me, gave me no paperwork, nothing,” Patterson said last week of her return to state custody. “Now I’m sitting here and no one’s answering my questions. They haven’t told me where I’m going, or how long I’ll be in for.”

On the legal authority for these “arrests,” according to the Washington DOC:

The warrants are technically “escape warrants” that don’t require a judge’s order, [a DOC official] said. While “there’s no intention on our part of prosecuting an escape,” the warrants can go nationwide and allow for extradition from other states . . . . (emphasis added).

So no judge is involved in the issuance of a warrant. But what about after the arrest? Does the re-incarcerated person get counsel, a hearing, anything? No. As the DOC official explained:

Once apprehended, offenders do not get a due-process hearing or legal counsel, [the official] said.
“These (cases) have already been adjudicated,” she said. “You’re under our jurisdiction and we need to apprehend you.”

On its own, that lack of process and judicial oversight may sound unfair. But the biggest legal issue might come from another information revealed by Kamb and O’Sullivan regarding the statements made by DOC officials to individuals before their release.

When the DOC first started rounding folks up, I wrote generally about the law of carceral take-backs. Whether the government has a right to re-apprehend a person it released might depend, not on the fairness of the re-incarceration process, but on the representations the government made to the person while he was in prison. Here’s what I wrote then, based on a review of the case law:

So can the government be estopped from re-incarcerating a prisoner after release? Maybe, if the government’s own wrongdoing caused a mistaken representation to the individual that he was entitled to release, if the individual had no reason to doubt the government’s representations, and if the individual relied on those representations in resuming his normal life.

At the time, I didn’t have any information about the sorts of representations the released individuals had previously received. But now I do. Again, from Kamb and O’Sullivan:

Patterson . . . was transferred in March to the Washington Corrections Center for Women in Purdy, where she said a DOC employee went over her remaining sentence with her. Patterson said the staffer told her she’d be out in about six months — almost a year early.
“I asked, are you sure? I’ve got two enhancements, 24 months. I have to do hard time on that,” she said she told him. “ I asked him like three or four times, and he got annoyed and was like, ‘Yeah, yeah, yeah, I’m sure.’ ”
. . . . Patterson said she didn’t think twice about being released without conditions.
“As far as they told me,” she said, “I was done.” (emphasis added).

And another example of repeated DOC representations:

Likewise, David Jennings, an offender let go at least seven months early and returned to custody last week, said he “triple-checked” his sentence with corrections staff before his release in August. (emphasis added).

Are these sorts of representations sufficient to estop the government from re-incarcerating folks under Johnson and Green (discussed here)? I’m not sure. But so far, no court has had a chance to answer that question, and the re-incarceration process does not seem to permit any judicial involvement. Time will tell.