Subpoenas Approved for Documents About Release of Prisoners

OLYMPIA — Legislative subpoenas will be issued for documents related to the erroneous early release of thousands of prisoners in Washington state following a vote by a Senate panel Tuesday night.

Lt. Gov. Brad Owen signed two subpoenas after the Senate Rules Committee, on a 13-7 vote, approved a resolution passed earlier in the day by the Senate Law and Justice Committee. Owen, who is chairman of the Rules Committee, was among the Democrats who voted against the resolution.

"The investigative authority of the Legislature is an inherent power of the legislative function," Senate Majority Leader Mark Schoesler, R-Ritzville, said before the vote.

In arguing against the subpoenas, Senate Democratic Leader Sharon Nelson, D-Maury Island, agreed that lawmakers are motivated to find out all of the details surrounding a software coding error that led to the early release of up to 3,200 prisoners since 2002 because of miscalculated sentences. But Nelson said the subpoenas are unnecessary at this point.

"The act of issuing a subpoena suggests guilt and an unwillingness to comply," she said, saying that the governor's office and Department of Corrections has been cooperating with legislative requests.

The documents sought by the Law and Justice Committee include any emails, reports or data compilations by the agency and the governor's office. The subpoenas will be delivered to Department of Corrections Secretary Dan Pacholke and the governor's general counsel, Nicholas Brown, by the state patrol on Wednesday morning, according to Hunter Goodman, the secretary of the Senate.

Jaime Smith, a spokeswoman for Gov. Jay Inslee, noted that the information being sought by the subpoenas are "the exact same documents we're already processing and providing to them from earlier requests."

"There is no information to be gained through a subpoena that isn't already available to them through normal public records procedures," she said in a written statement. "Our office will continue to provide documents as requested. The governor will not cease in his efforts to fix this problem and hold the right people accountable."

A software fix to the coding error, publicly disclosed by Inslee on Dec. 22, was implemented this month.

But lawmakers and the governor want to know why something wasn't done sooner by the Department of Corrections. The agency was first alerted to the error — which started in 2002 — in December 2012. But a scheduled fix for the program was repeatedly delayed over the past three years.

Pacholke said he didn't learn of the error until the middle of last month, and the governor says he didn't learn of the issue until that same time, when corrections' officials notified his staff.

Inslee's office has hired two retired federal prosecutors to investigate, and Democratic members of the Senate Law and Justice Committee argued earlier in the day that the committee's actions were premature in light of that ongoing investigation.

"I certainly agree that we have to get to the bottom of this," said Sen. David Frockt, D-Seattle. "Once the investigation is complete, by the federal prosecutors, that will begin to give us a window into what actually transpired here. I think our legislative oversight power can be best exercised subsequent to the investigation."

But Sen. Steve O'Ban, a Republican from Tacoma, said he was concerned about the transparency and scope of the investigation conducted by the investigators.

"I believe the public is entitled to an investigation, an independent one conducted by this body, that will set forth all the facts in the manner that the public can view and weigh the credibility of these statements of those who may be responsible," said O'Ban of Tacoma, the vice chairman of the committee. "Regardless of the fact that the governor is conducting his own investigation, this is a co-equal branch of government."

The committee's chairman, Republican Sen. Mike Padden of Spokane Valley, said that while his committee is initially just seeking subpoena power for documents, it may later ask the Rules committee to approve a subpoena to compel testimony from witnesses, if necessary.

In a written statement late Tuesday, Pacholke said that the agency "will continue to fully cooperate with both the legislature's inquiry, and the independent investigation led by two former federal prosecutors on the miscalculation issue."