The Court of Appeals affirmed the trial court's dismissal of the charge on the ground there were inadequate procedural safeguards to restrain the potential abuse of agency discretion, thereby making the statute unconstitutional. The Court of Appeals vacated the charge by holding the persistent prison misbehavior statute entirely unconstitutional and declined to rest its decision on the narrow, but recognized, ground that the DOC had failed to promulgate rules under the governing statute, RCW 72.09.130. App at 960-61. The State petitioned for review, which this court granted. However, those inmates who fail to comply with the internal prison rules can lose their good time credit.
Some inmates have no earned early release credits.
Brown is one of those inmates. Maintaining discipline over inmates who have no earned early release credit is of concern to the DOC, in part because these inmates have less reason to obey internal prison rules. In 1995, the Legislature responded to the DOC's concerns by enacting the persistent prison misbehavior statute, RCW 9.94.070. Brown contends the DOC's failure to appropriately promulgate the list of infractions that can form the basis of a prosecution under RCW 9.94.070 bars the State from prosecuting him. RCW 72.09.130 establishes a system wherein inmates can earn and lose early release days and privileges.