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A “time bar” that denies people even the opportunity to have their case reviewed

Sentenced at age 18 to 42 years

If you look at criminal laws passed toward the end of the 1990s, most were passed under the guise of stringent punishment and keeping the community safe. They were designed to produce prolonged sentences that would keep people in jail for most of their lives, if not all.

For example, the “three strikes” laws, where a third conviction no matter what the circumstances (even stealing a pizza) would land someone in prison for the rest of their natural life. In Washington state, the “hard time for armed crime” laws added up to five years of flat time (every day must be served) to an underlying sentence for each count that carried an enhancement. These enhancements ran consecutively to every other sentence—including other enhancements. They added so many years that it is not uncommon to see a person serving more time for enhancements alone than for the underlying crime itself.

Source: It’s About Time: Long and life sentences fuel Washington’s mass incarceration. ACLU Report, February 2020

I was sentenced under these laws. I was 18 at the time. Nineteen days after being arrested, I passed a polygraph test stating that I was not the shooter. I was offered a sentence of 42 months (3-½ years) if I would plead guilty, but I refused to accept this “plea bargain” because I was innocent.

I have been incarcerated since April 24, 1996 (24 years), after being wrongfully convicted of three counts of assault in the first degree, with three “firearm enhancements,” and sentenced to 500 months, nearly 42 years. The federal definition of a life sentence is 470 months.

I know what injustice feels like from many aspects. No one sustained any bodily injuries in the incident. The actual shooter confessed on numerous occasions—even during my trial—but was never charged. The victims gave inconsistent descriptions of who they witnessed as the shooter (it was dark, about 100 feet away). The driver of the vehicle has never been questioned about the incident, although she has made statements to several of her close friends that I was not the shooter.

The only way for me and the majority of those held in prison with these astronomical sentences to ever receive relief or be released, is through an appeal or post conviction relief. One form is known as “collateral attack” in which a prisoner may present arguments in the form of writing a brief, pointing out issues that have impacted their convictions and sentencing. This is usually done via a method titled a, “personal restraint petition” or “PRP,” which is Washington state’s alternative to a writ of habeas corpus. (Better yet it is a replacement for dismantling the Great Writ, and circumventing the Washington state and US constitutions. That would be a subject for another day.)

The PRP is the vessel in which to bring claims and issues that a petitioner has either failed to raise or could not have raised during a direct appeal. Some examples would be changes in law that were not in effect at the time of the crime, issues that are not supported by the trial record, or showing evidence of one’s innocence or lack of culpability.

However, there is a major caveat: the PRP must be filed within a year after a conviction becomes final. For most, that year starts from the day the Appeals Court is done with a person’s case and issues a mandate certifying the finality of a direct appeal.

This prohibition is known as a “time bar.” It’s codified in Washington state law as RCW 10.73.090(1). This law was implemented in 1989 as part of a continuing drive to keep people in prison for longer and longer periods of time. The time bar was implemented under the guise of, “not disturbing the finality of a court decision…” meaning courts and the public did not want to be bothered with a case at a later date.

This applies no matter how bad the injustice may have been. The legislature made six exceptions that are so narrow they are almost insurmountable. It is very rare that a petitioner would likely meet these exceptions, let alone be granted relief. An example of cases where the petitioner had a valid claim yet was time barred are cases where a petitioner (the majority) could not afford to pay an attorney. Without such assistance the petitioner—often uneducated, and certainly untrained in the law—either gives up, or undertakes the daunting task of litigating his claims in a PRP on his own (pro se).

A petitioner who tries to litigate his own claim still faces the one-year time limit. The petitioner must learn how to conduct research, understand holdings in case law, figure out how to interpret statutes, find out court rules and procedures, learn how to marshal facts and analyze and formulate arguments. Then apply the laws to the facts and put it all on paper in a brief. All the while being incarcerated in a prison with very limited resources and hardly any guidance. Most practicing attorneys with vast resources have difficulty doing this even after years of college and training. If the petitioner cannot complete all this within the one year time limit, any claims will be precluded from further chances to be heard or reviewed.

Naturally most petitioners will miss the one-year deadline. The ones whose petition may be timely are often unable to properly articulate their arguments and 999 times out of a thousand their PRPs are rubber stamped and denied. This occurs no matter how grave the injustice may be, even when one can show actual innocence.

Another exception is when a new interpretation in case law reflects a change in law or a scientific breakthrough. A prime instance is youthful brain science in which recent studies have shown that adolescence does not all of a sudden cease at the age of 18, but continues in some cases all the way to age 21 and even 25. This means that punishing someone under these circumstances could be cruel and unusual.

When the Washington State Supreme Court made such a ruling in State v. O’Dell, 183 an.2d 680, 683, 358 p.3d 359 (2018), petitioners who were within the one year PRP time limit faced less of a hurdle when raising a claim in which O’Dell applied. However for those beyond the one year limit, any consideration of such relief was immediately deemed time barred.

Without [legal] assistance the petitioner… either gives up, or undertakes the daunting task of litigating his claims in a PRP on his own (pro se).

This demonstrates again how unfair and unjust the time bar is. It is a hypertechnicality used to deny justice regardless of how deserving it may be. All in the name of not disturbing the finality of a conviction and sentence. A case with significant ramifications for a petitioner’s case may be decided one day after the petitioner’s year has elapsed—which would preclude any relief that petitioner may have received just one day before. It’s time to repeal or abolish the time bar under RCW 10.73.090(1).

In terms of how arbitrary and unreasonable the time bar is, it is interesting to note that on April 14, 2020, Governor Jay Inslee suspended rcw 10.73.090 in its entirety for 30 days. This was due to the Covid–19 pandemic. Obviously, the governor understood the dire consequences of the collateral attack time bar rule as it applied to criminal cases. He understood that courts and lawyers would not be able function because of an abnormality in operations. Why can’t this same sense of understanding be applied to pro se litigants? There is nothing normal about their situation.

Eric Michael Bacolod is self taught in some legal matters and is directly affected by the time bar. He is passionate about criminal justice reform for everyone similarly situated as well as for those who may face similar injustices in the future, and hopes to play a part as a catalyst for change.

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