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States not only can leverage prisoners’ income to pay for victim restitution, but may also use the funds to pay for the cost of incarceration, the 9th U.S. Circuit Court of Appeals said Tuesday. In a ruling that is part of ongoing class-action litigation, a three-judge panel held that a Washington state law deducting 35 percent of prisoners’ outside income, including pension plans, did not violate the law. The 9th Circuit has already said that such statutes are constitutional. Tuesday’s opinion, Wright v. Riveland, 00 C.D.O.S. 5681, clarifies the sources of prisoner income that states may attach. San Diego U.S. District Judge Barry Moskowitz, sitting by designation, wrote the unanimous decision and was joined by Judge Harry Pregerson and Senior Judge David Thompson. “What we were looking for was to get the statute upheld — to make [prisoners] responsible for the damages and injury they’ve caused,” said Douglas Carr, an assistant attorney general in Washington. “In the main, it was a very good opinion.” Enacted in 1995, the Washington law is part of a national trend to make criminals more responsible for the costs of their actions. Some states, including Minnesota and Michigan, have enacted similar laws. Lawyers representing the prisoners are turning now to the Washington Supreme Court, where a concurrent suit has been far more successful for the plaintiffs and their families than federal court. “The litigation is far from over,” said Chris Youtz, a partner at Seattle’s Sirianni & Yuotz, whose firm was appointed to represent the prisoners by U.S. District Judge Franklin Burgess, after the judge was flooded with pro se filings. “The big issue now is what’s going to happen in the state Supreme Court,” Youtz said. In the lower court, Burgess upheld the thrust of the statute but ruled that federal benefits could not be attached, including Social Security and veterans’ benefits. Carr said the ruling had little effect on the statute and that the state did not contest it. Washington’s 35 percent deduction is divided three ways: 5 percent goes toward victim restitution, 10 percent is placed in a prisoner savings account and 20 percent is applied toward the cost of incarceration. The Washington law was amended in 1997 to cap annual per prisoner deductions to roughly the $23,000 cost of housing an inmate for a year. In California, the cost is about $25,000. Mike Rustigan, a criminal justice expert at San Francisco State University, called the ruling “an interesting development.” “In effect, it’s what the Chinese do, where they put someone before the firing squad and make the parents pay for the bullet,” Rustigan said. Rustigan said the public is increasingly favoring not only victims’ rights, but prisoner responsibility. “There’s a move in this direction. It would be highly popular with the public,” he said. Moskowitz wrote that the Washington statute was indeed punitive, but held that the fines weren’t grossly excessive under the Eighth Amendment. The case was remanded to district court to decide a minor issue. “It was a good result for the state,” Carr said.

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