O’Ban column published in national news magazine

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Posted below, from Steve O’Ban’s guest piece in the Weekly Standard.

In 2002 the Washington State Department of Corrections made a software programming error that wasn’t caught for a decade. Over this period, the error allowed thousands of prisoners to be released before their sentences were completed.

In December 2012, the father of a stabbing victim learned his son’s assailant was about to be released and spent five minutes double-checking the department’s math. He proved they’d made a mistake. When confronted by the anguished father, the department recognized the release date was wrong not only for this inmate, but for many others. Because the father had complained, they kept his son’s assailant incarcerated for the full duration of his sentence, but they didn’t fix the sentencing problem for other prisoners. So for another three years, prisoners continued to be released early.

During this period of time, two people—a 17-year-old boy and a mother of two—died from crimes alleged to have been committed by prisoners who should have been incarcerated at the time of the offense.

By the time this story became public in December 2015, approximately 3,000 prisoners had been released before completing their sentences. Everyone in the state of Washington wanted to know how DOC could make such an error and, most importantly, how they could knowingly continue that error.

Governor Jay Inslee, a Democrat, announced that he would launch an investigation.

State senator Mike Padden and I serve as the chair and vice chair, respectively, of the senate law and justice committee. We were concerned about the scope of the governor’s inquiry. We learned that his investigators would not be obtaining witness statements and would not take testimony under oath. DOC is part of the executive branch, and the DOC secretary during the key time of this error was Governor Inslee’s appointee. Senator Padden and I ultimately concluded that the senate, as part of a co-equal, independent branch of government, needed to launch a separate, independent investigation.

The governor’s final report was issued while the senate investigation was still underway. It placed heavy blame on midlevel managers and poor legal advice from the attorney general’s office but largely absolved top levels of management.

What did the Law and Justice Committee investigation uncover?

In addition to the mistakes made by midlevel managers and an assistant attorney general, we learned that former DOC secretary Bernie Warner’s woeful mismanagement set the groundwork for delays in fixing the software responsible for the early release of prisoners. We learned his mismanagement led to a communications breakdown, a collapse of IT governance structures, high turnover and the loss of legacy personnel. We learned that despite being warned regarding some of these issues by then-deputy secretary Dan Pacholke, Secretary Warner did nothing.

We learned Secretary Warner over-prioritized his STRONG-R project to find a “next generation dynamic risk-assessment tool” to the point where it “blocked out the sun” for other projects essential to the core mission of DOC and that Assessments.com, a contractor described as “consistently over-budget” and “under-deliver[ing],” was insisted on by Secretary Warner for the project. We learned the CEO for this company had an arrest record for cocaine possession, violating a domestic order, resisting arrest and numerous DUIs. Former Chief Information Officer Kit Bail stated about this CEO, “he’s a crook and Bernie brought him back.” But at the senate hearings, we learned that Bail used the word “crook” not because of the arrests but because of his pattern for how he did business with the state.

The governor’s report stated that “no one” had suggested that Secretary Warner’s management was a contributing factor to the perpetuation of the software fix delays. The senate investigation heard testimony from several witnesses that Secretary Warner’s management was a factor in the delays. In addition, Pacholke (who had by our hearings succeeded Warner as DOC secretary) testified that “Mr. Warner did several things to set the context in which this error could occur and go undetected for some time.”

The governor’s report stated that STRONG-R “did not require a significant allocation of resources.” Senate witnesses described IT governance as being consumed or evaporated by the project. Pacholke testified that it led to the turnover of a lot of senior employees and legacy talent “at a minimum.”

The governor’s report stated that former assistant secretary Denise Doty “never advised Secretary Warner… of the problem.” In senate testimony Doty declared the governor’s report was an inaccurate reflection of her comments. She did not state that she “never advised” Warner but that she had no specific recollection of doing so. She insisted it “was certainly my practice” and “I wouldn’t have any reason NOT to.”

The governor’s report put heavy emphasis on the department’s former IT business manager David Dunnington deleting the “must fix” designation for the software problem. In Senate testimony Dunnington revealed it only seemed deleted because the governor’s investigators did not understand how the system worked. In his signed witness statement, Mark Ardiel, an employee of Sierra Cedar (a private contractor for DOC) explained the disappearance of “must fix” in the same way, noting that “although the ‘must fix’ designation appears to disappear from the record, the report only shows items that are changed so if the same status is maintained, it would not be shown on the report for later dates.”
The governor’s report also emphasized that on his own, Dunnington reduced the severity level of the software fix. In his Senate testimony, Pacholke confirmed Dunnington was “complying with a directive” and meeting minutes reveal that the decision for the downgrade was made as part of a broader policy change at a meeting. Dunnington did not attend.

Governor Inslee’s DOC oversight failed to adequately adjust for a conflict of interest arising from a personal relationship between Secretary Warner and a member of the governor’s staff. Such conflicts are known to cause people (out of fear or affection) to avoid reporting negative information or to fail to see or seek that information. This could explain why when Secretary Warner announced he was leaving DOC, the governor hailed him as “a model for how to run a corrections department.”

The senate investigation also concluded that the legislature needs to examine ways in which we could simplify our sentencing laws without reducing punishment or compromising public safety.

The senate law and justice committee majority report provides a much more complete picture of why almost 3,000 prisoners were released early and what should be done about it. Already there is evidence that the report is having an impact. Following its release, the DOC announced they will not be renewing their contract with Assessments.com.

For the sake of public safety and accountability, let’s hope other lessons are learned as swiftly.

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