(dissenting) — We granted review of this case to determine whether the Indeterminate Sentence Review Board’s (ISRB) decision to extend Lincoln Addleman’s minimum term by 175 months was lawful. The majority incorrectly “harmonizes” the two statutory duties placed on the ISRB by writing one duty out of existence. I would find that the ISRB failed to follow its statutory duty to make decisions “reasonably consistent” with the Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW, when it decided to extend Addleman’s minimum term. I dissent.
In this case, the ISRB has two statutory duties. First, the ISRB must make decisions that are “reasonably consistent” with the purposes, standards, and sentencing ranges of the SRA. If a decision on the duration of confinement is outside the standard SRA ranges, the ISRB must give adequate written reasons for the departure. RCW 9.95.009(2) specifically provides that:
When making decisions on duration of confinement. . . the board shall consider the purposes, standards, and sentencing ranges adopted pursuant to RCW 9.94A.850 and the minimum term recommendations of the sentencing judge and prosecuting attorney, and shall attempt to make decisions reasonably consistent with those ranges, standards, purposes, and recommendations: PROVIDED, [t]hat [it] shall give adequate written reasons whenever a minimum term or. . . decision is made which is outside the sentencing ranges adopted pursuant to [the SRA],
(Emphasis added; reviser’s note omitted.) Second, the ISRB must not release offenders if their rehabilitation is not “complete.” RCW 9.95.100 states, in pertinent part, that “[t]he board shall not. . . until his or her maximum term expires, release a prisoner, unless in its opinion his or her rehabilitation has been complete and he or she is a fit subject for release.”
The majority errs in not analyzing these two duties separately. The majority claims that the duties can be harmonized with each other, yet also states that the ISRB’s duty under RCW 9.95.100 “trumps” the ISRB’s duty under *780RCW 9.95.009(2).5 Majority at 775. The majority provides no support for this conclusion, nor any attempt to reconcile the apparent inconsistency.
The majority views the first duty of the ISRB as merely an “attempt” by the ISRB to be reasonably consistent with the SRA. Majority at 775 n.3. Although RCW 9.95.009(2) includes the word “attempt,” the majority’s emphasis on that word is inconsistent with our jurisprudence. We have previously determined that RCW 9.95.009(2) places a “clear limitation” on the discretion of the ISRB. In re Pers. Restraint of Myers, 105 Wn.2d 257, 262, 714 P.2d 303 (1986).
In Myers, the defendant asserted that RCW 9.95.009(2) was void for vagueness under the federal due process clause because defendants could only guess how the ISRB might “attempt” to be “reasonably consistent” with SRA guidelines. Myers, 105 Wn.2d at 266-67. We rejected this argument based on the express language of RCW 9.95.009(2). Pursuant to the statute, the ISRB is empowered only to impose sentences reasonably consistent with the SRA and has no inherent power to “amend or alter the statutes under which it functions.” Myers, 105 Wn.2d at 264. By claiming that RCW 9.95.100 trumps the ISRB’s duty under RCW 9.95.009(2), the majority is ostensibly delegating this power to the ISRB, which is contrary to the express language of the statute. In effect, the majority writes RCW 9.95.009(2) out of existence and gives the ISRB full discretion regarding sentencing decisions.6
In support of the “reasonably consistent” requirement of RCW 9.95.009(2), we have required the ISRB’s procedures and factors relevant to setting minimum terms to be “substantially similar” to the SRA’s exceptional sentence *781procedures and factors. In re Pers. Restraint of Locklear, 118 Wn.2d 409, 416, 823 P.2d 1078 (1992). In Locklear, we recognized that similar treatment of SRA offenders and pre-SRA offenders was required not only by statute but also by principles of equal protection. This determination supports the purpose of RCW 9.95.009(2), which was enacted to “remedy a statutory scheme that otherwise would create gross disparity between sentences set under the indeterminate sentencing scheme and sentences set under the SRA’s determinate scheme.” Myers, 105 Wn.2d at 267.
The majority ignores the statutory requirement of similar treatment and erroneously focuses on RCW 9.95.100.7 This statute provides that the ISRB must not release a prisoner “unless in its opinion his or her rehabilitation has been complete and he or she is a fit subject for release.” RCW 9.95.100. Here, the ISRB determined that Addleman was not fit for release and denied his parole. This decision resulted in an extension of Addleman’s minimum term by 175 months.8 Suppl. Br. of Pet’r at 7. Under the SRA, Addleman’s standard sentence range is 108-144 months. Suppl. Br. of Resp’t at 4. At the time of the hearing, Addleman had served 303 months, which amounts to a sentence of 455 months before good time credit is considered. Suppl. Br. of Pet’r at 7. With the addition of 175 months, Addleman’s current sentence is 630 months. Suppl. Br. of Pet’r at 7. This is more than four times the high end of the SRA range.
The ISRB based its decision to extend Addleman’s minimum term on information that Addleman lacks rehabilitation due to a slang dictionary he developed and due to the fact that he is at a high risk to reoffend. Majority at 777-78. *782Addleman does show signs of lacking rehabilitation,9 but those signs are not proportional to the large disparity between his sentence and the SRA’s standard range. Although the ISRB can consider the extent of rehabilitation when setting an offender’s minimum term, an exceptional sentence based on “lack of rehabilitation” nullifies the requirement of RCW 9.95.009(2).10 Such decisions further conflict with the SRA’s purpose of providing proportional sentences for those convicted of crimes of the same statutory category who have the same criminal history and arguably violate principles of equal protection.
I would find it not reasonably consistent with the SRA to increase a sentence by 175 months, which is three to four times the high end of the sentencing range. As required by RCW 9.95.009(2), the ISRB has not given an adequate written explanation for departing from SRA guidelines, nor does any evidence exist to suggest that the ISRB even considered the SRA in setting Addleman’s minimum term. Accordingly, the ISRB has failed to show that Addleman’s disputed lack of rehabilitation is proportional to the disparity between his minimum sentence and the SRA’s range as required by RCW 9.95.009(2). Because I would find the extension of Addleman’s minimum term to be inconsistent with the SRA, and therefore unlawful, I would grant his petition.
Alexander, C.J., and Sanders, J., concur with Johnson, J.
Reconsideration denied July 28, 2004.
Specifically, the majority provides that the statutory requirement that a prisoner is not to be released until rehabilitation is complete “trumps” the ISRB’s statutory requirement to attempt consistency with the SRA.
This result is contrary to our decision in Myers, 105 Wn.2d at 263 where we held that Parole Board Rule 2.081 conflicted with the legislative intent of RCW 9.95.009(2) because it gave “full discretion” to the ISRB to fix minimum terms.
As mentioned, the majority goes as far to say that RCW 9.95.100 “trumps” RCW 9.95.009(2). Majority at 775.
The ISRB contends that Mr. Addleman’s minimum term was extended by only 63 months. Suppl. Br. of Resp’t at 6.
Information suggests that Addleman lacks rehabilitation, but that is countered somewhat by evidence that he “has not had an infraction since 1989 and has been compliant with institution rules.” Ex. 8.
If the ISRB is concerned about Addleman’s lack of rehabilitation and his risk of reoffending, it should not extend his minimum sentence in order to keep from releasing him. As discussed above, the extension would not be consistent with the SRA. Instead, the State could proceed against Addleman under the civil commitment statute as a sexually violent predator. See ch. 71.09 RCW.