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Courtesy of Michael J. Fox

The Judge and the Three-Strikes Convict

Michael Fox had no choice but to give Scott Wharton life without parole—then spent years fighting to set him free. This is a real-life parable about our broken criminal justice system.

On the night before Christmas, 1996, wearing a black felt cowboy hat and cowboy boots, Joseph Scott Wharton strode up to the cash register of a Walgreens in Kent, Washington, placed a Santa Claus hat and some rolls of film on the counter, and demanded all of the money.

“Don’t be foolish,” he said. “Don’t alarm anybody.”

The clerk, stunned, did not move.

“I mean now,” Wharton growled.

Then the clerk noticed that Wharton’s right hand was in his pocket, and in the pocket bulged the shape of a gun, and the gun was pointed at him. The cashier rushed to open the till, and Wharton, armed only with a pointed finger, walked out into the dark with several hundred dollars.

He had perfected this routine by now. Over a nearly three-month period in late 1996 and early 1997, Wharton was the most notorious criminal in the south suburbs of Seattle. Every two or three days, he robbed pharmacies, grocery stores, supermarkets, banks, a bowling alley, and many Fred Meyer superstores. In the mornings, he would read about himself in the newspaper, combing through the articles for details that might help him evade capture. If police were looking for a clean-shaven man in a cowboy hat and boots and driving a green Ford, Wharton would grow a mustache and wear flannel and an oversized ski cap and drive a silver Mercury. To avoid identification by the sound of his voice, he began writing notes demanding the money.

Wharton was not robbing for the thrill of it. He was consumed by a $200-a-day addiction to crack cocaine. He had been released from state prison six weeks before his crime spree began, with a rap sheet that dated back more than two decades. From his first crime in 1975, when he was 12 years old, to his final arrest in January 1997, Wharton committed a string of crimes that increased in both frequency and severity, from larceny and reckless driving to burglary and second-degree theft. He was, to many, the epitome of the “career criminal,” a man who had always acted outside the law, without regard for what he did or whom he terrorized. 

So it might have seemed a predictable fate for Wharton to spend the rest of his life in prison, even if the terms of his sentence—no possibility of parole—were unduly harsh for his crimes. But this was not the end of Wharton’s story; a life’s worth of plot twists lay ahead. Some of those twists would be orchestrated by the judge who put him away for life, while others would come courtesy of the governor of Washington. But many would be Wharton’s own doing. 

“The beginning of my ‘illustrious’ criminal career—they once put that in an article—was 1975. I was 12,” Wharton told me from a prison phone in 2017. “I stole a car, and I was drinking and high on valium.”

He didn’t have a “bad” childhood, he maintains. Born in 1963, he grew up among the midcentury houses and factories that sprawled south of Seattle after World War II. (Seattle was not yet the tech hub it would become, but a blue-collar company town in thrall to Boeing.) Wharton, who is about a quarter Cherokee but identifies as white and is not a tribal member, lived on the eastern fringe of the ranch-home tracts, and he felt at home in the looming forests. In the summer, he and a pack of friends would ride dirt bikes up to the old mines or all the way to Tiger Mountain. His mother enrolled him in an arts-focused alternative school, and he and his friends smoked weed and stole the public-school jocks’ girlfriends.

Wharton’s father was a talented mechanic, and, a family friend remembers, “a little wild.” His mother, who stayed home before getting work in a blood lab, was known in the neighborhood as a busybody with a big heart. Other kids were always over at the Wharton home, the children of absent or abusive parents, who sought shelter there because they were always welcome. Scott was the middle child of three. His older sister, who seemed to have inherited the paternal wildness, was often out, but his younger brother was a mama’s boy and stayed close. As for Scott himself, he was his mom’s best friend. “She knew my heart,” he told me, “and she knew I was suffering from addictions and shortfalls.”

Those addictions overtook him early. He spent his teenage years getting arrested on alcohol- and pot-related charges. When he was drunk, he would steal cars and raise hell. By his eighteenth birthday, he had been charged with at least ten crimes. But because he was a juvenile, and because it was the 1970s, most of the charges were diverted or suspended. He spent a few weeks in juvenile detention, nothing more. His mother warned him that if he didn’t change his behavior, he’d wind up in prison, but it was not in her character to be stern with her favorite son.

In early 1981, Wharton and his best friend, Bob Mullen, were headed to the lake to party. They had a young woman with them, and they were driving her father’s car. Wharton was behind the wheel, doing 80 or 90 miles an hour with ACDC’s “Highway To Hell” blaring from the radio. Wharton looked over at Mullen, who was rolling a joint. He looked back at the road, and saw that the way was blocked by a car waiting to make a left turn. He swerved to the right, and the car bounced and began to roll. Wharton clung to the wheel as the world turned upside down. He heard screams. The roof slammed the ground, shattering the windows.

After Wharton was pulled from the wreck, it took hundreds of stitches to repair his face; it would be another 38 years before he learned that he’d suffered a traumatic brain injury. Mullen was paralyzed on his left side, suffered third-degree burns, had a nine-inch crack in his skull, and needed to relearn how to walk. The woman was thrown through the windshield.

Wharton was consumed with grief and shame and self-loathing. He felt darkness overtaking him, and he drank and smoked pot to keep it at bay. He continued to get in trouble and was arrested for mischief and public indecency, then for breach of the peace. In 1982, he drove his girlfriend’s parents’ car under a semi-truck and nearly died. Then Tammy, his girlfriend, got pregnant. Wharton hoped that having a child would help him settle down, but Tammy left him and got custody of their son in 1983. The darkness thickened, and the alcohol and pot no longer sufficed.

The first time he did cocaine, Wharton told me, he was in downtown Seattle, “hanging out with this old lady and this one-eyed, crippled Indian who was meaner than a snake.” They showed him how to inject it into a vein in the back of his hand. “When I took it, my pores started sweating, and I wanted to vomit. And then—” Wharton paused. “The euphoria was like an ecstasy.… That was my fatal mistake.”

From 1983 to 1985, Wharton was arrested for more than a dozen crimes, including two high-speed chases and a flight on foot that required a K-9 team to bring him in. Warrants for his arrest began noting that he was “dangerous,” that he used “lots of alcohol,” and was “feisty when drunk.” Still, he was not punished for most of his crimes, and he received relatively short sentences of probation and jail time for the rest, usually suspended if he completed an alcohol-treatment program. When he was kicked out of treatment for showing up drunk or high, the courts either did not find out or did not care to reinstate his sentences. When he stopped checking in with his probation officer and failed to appear in court, a note was made in his record, but nothing was done.

At last in May 1985, after back-to-back auto thefts, Wharton was arrested and held on bail. In the King County Jail in downtown Seattle, he was interviewed by a community corrections officer. “Mr. Wharton’s problems are clear and are also tragic to observe in such a young individual,” the officer wrote in his notes, adding that Wharton was “an alcoholic and not a criminal” and “not likely to participate in crime if [his] alcoholism can be arrested.” Confronted with an accounting of his actions, Wharton “expressed deep remorse but indicated that he no longer cared about living.”

What was this officer to do? Wharton’s crimes were “a cry for help … he stole vehicles and drove them publicly in an area where he was well known, almost as if in an effort to be apprehended and incarcerated so that he could be controlled externally since we has unable to exert internal controls over his own behavior.” With “some reluctance,” and clear frustration at the lack of options, the officer recommended that Wharton be incarcerated, to protect him from hurting himself or others.

His first prison term, which lasted 18 months, was “just a big party.” After a brief stint on a work crew, he was sent to an island prison in Puget Sound. “You could play putt-putt golf or handball or racquetball or just run around and smoke weed all day,” he said. Still, he resented the structure and control.

It was 1986 when he got out, and drugs were everywhere. The economic boom that had drawn Wharton’s family to the Seattle area soured in the early 1970s. Reeling from the end of lucrative contracts for the Vietnam War and the space race, Boeing cut two-thirds of its workforce in three years; 86,000 people were out of a job. “Will the last person leaving Seattle turn out the lights?” read a famous billboard. The effect was especially intense in southern King County, where Wharton lived, as economic opportunity continued to wane for two decades. With chronic unemployment came poverty and crime and drugs.

Tammy and her husband had filed a restraining order against Wharton, breaking whatever tenuous link he had to his son. His transgressions quickly escalated. In 1987, he robbed a Jack Pot, the first time he bluffed with his finger-gun. That sentence was suspended. In 1988, he was arrested for first-degree theft in Oregon and two counts of auto theft in Washington; both sentences were suspended. Later in 1988, he pleaded guilty to second-degree robbery and served 15 months.

He did not know it, but this would be his first strike.

In September 1989, shortly after he was released, he robbed a Pizza Hut and a Costless drugstore. Two weeks later, he was identified after robbing a motel in Renton. When police at last found him, he pleaded guilty and was sentenced to six years in prison.

That would be his second strike.

Wharton doesn’t talk much about those six years in prison. His father died shortly after he got locked up, and the rest of the time seems to blur in his mind. When he was released in August 1996, he went home, but home had changed. The booming economy in Seattle, fed by the success of Microsoft, had brought new wealth to the city and the east side of Lake Washington, but it had mostly avoided the industrial suburbs in the south. There, gangs patrolled the streets, and drugs were everywhere—new drugs, like methamphetamine and crack.

In this alien environment, Wharton clung to Bob Mullen, who still bore the scars from their car accident 15 years earlier. Sobered by his prison term, and now 33 years old, Wharton was determined to pull himself together. He got a job and began dating a woman who was square and responsible. He was going to AA and NA. He finally felt like a productive member of society.

He was also bored. His brother and sister had stopped talking to him after he went to prison, so his mother was his only family left. He moved in with Kathy, his girlfriend, but he still often found himself over at his mother’s place or out with Mullen. A couple of times, he drank beer, and felt so ashamed for lying about it at AA meetings that he quit going. Then, a month or so after he got out, he and Mullen decided to buy crack because it was cheap and available and they had never tried it, and that act defined the course of the rest of Wharton’s life.

“It’s like I was demonically possessed,” he told me. His entire being was focused on getting crack, “from the minute I woke up until the minute I fell asleep.” He drained his bank account, and then, to get the cash to cover it up from Kathy, he went to a bowling alley and robbed the clerk.

The next morning, as he and Kathy were eating breakfast, Wharton started crying.

“What’s wrong?” she asked.

“I’m just so afraid I’m going back to prison.”

His fear was not simply that he would return to prison for a few more years. During his time inside, Washington had become the first state to pass a “habitual offender” law. Now, people convicted of certain crimes three times faced an automatic sentence of life in prison without the possibility of early release.

Wharton knew of the three-strikes law, and he knew that he had already used up two of his strikes. And yet, he couldn’t quit crack. He left his job in the second week of October and began robbing stores every few days. His mother knew something was wrong, but said nothing. Kathy was also suspicious, but it wasn’t until January that she knew what was happening. He walked into her apartment one morning, after spending all night getting high at a motel, and she asked him if he had seen the newspaper. He looked down at it and saw a police sketch. It looked just like him.

Michael Fox moved sight unseen to Seattle in 1969, after getting a law degree from the University of Virginia. Since he was fluent in Spanish, he represented striking farm workers in the hop ranches of eastern Washington. Before his twenty-eighth birthday, he had successfully brokered negotiations between the owners of 15 ranches and the hundreds of workers who toiled there, and he found himself talking shop on the phone with Cesar Chavez. “Fairly heady stuff for a 27-year-old,” he told me.

In the ’70s and ’80s, he deepened and broadened his practice, eventually representing both employees and employers and becoming a “special master” in labor law, advising federal judges on the West Coast. But the pace of life was not sustainable; his father and uncle had both died from heart attacks at age 40, and he worried that the 300-plus hours he was logging each month would land him in an early grave, too. Being a judge seemed like a good lifestyle change and the logical next step in a career that had led from activist to advocate to mediator.

Fox became a King County judge in 1988, and immediately felt at home on the bench. He especially enjoyed the criminal cases. “A lot of them had interesting stories attached to them,” he said. “Of course, many of them were brutal and troubling, but I tried to make it my business to treat every defendant who came before me with respect, and I think I got the reputation of doing that—of treating people fairly.” By 1997, when Wharton’s case crossed his desk, Fox was nine years into his judicial career and among the top-rated judges in polls of the King County Bar Association.

Wharton’s crime spree had come to an end in Ellensburg, Washington, east of the Cascades. (He had fled Kathy’s apartment after seeing the sketch, and called the police.) When he was caught, the only items in his possession were a pipe, two lighters, and 27 crack rocks he had hidden in his underwear. He had pneumonia, and had lost 63 pounds since October.

In the police station, Wharton confessed to six of the robberies. A few days later, he confessed to at least four more. Bail was set at $500,000. Considered a danger to himself and others, he was put in isolation in the King County Jail. He tried to hang himself, but his makeshift noose broke.

Michael Fox in 2018
Courtesy of Jill Freidberg

Reading Wharton’s file was frustrating for Fox, who had spent a career working with the down-and-out. Wharton was so clearly driven by his inexorable addiction; everyone who interviewed him suggested that he was only a danger while in thrall to the chemicals that hijacked his brain. He was so different from the other men Fox had sentenced to life in prison. “The only crime in Washington state that will put you in jail for life without parole is first-degree aggravated murder,” he said. “Not just murder, but murder with special aggravating circumstances, like torture or murdering a child.”

Yet there was no question that Wharton had committed the crimes he was charged with, since he had admitted to them. In a case like this, Fox’s hands were tied.

It was Washington state that pioneered the three-strikes revolution in court sentencing. John Carlson, a Seattle radio personality and then-president of the conservative Washington Institute for Policy Studies, drafted the text of the law. When it failed in the legislature, Carlson and other activists put it up as a ballot proposal, called the Persistent Offender Accountability Act. It passed by a nearly 3–1 margin in 1993.

“Our state’s three-strikes law,” Carlson wrote years later, “was designed to nail two types of criminals: first, the violent predators and, second, those who commit lesser but far more numerous crimes over and over again.”

Two months later, during his first State of the Union address, President Bill Clinton announced his support for a federal three-strikes law. Later that year, he signed the Violent Crime Control and Law Enforcement Act into law, after it passed the Senate 95–4. In a Washington Post op-ed titled “We’ve Got ‘Three Strikes’—It’s Working,” Carlson excoriated the president and Congress over a law he deemed insufficiently harsh. Three-strikes, he concluded, “will only be good for America if lawmakers across the country, including Congress, make the climate for crime as chilly in their states as it is now in Washington state.” Within a couple of years, 23 other states had passed similar laws, and many of them cast a very wide net: California imprisons nearly 40,000 people under their two- and three-strike laws, nearly a third of the state’s prison population as a whole.

The unfairness of Washington’s law burned in Fox. “As a judge, you want to bring some proportionality to the sentences you impose,” he told me. “If you’re a representative of the system, you want the system to be proportionate.” He noted that Gary Ridgway, the so-called Green River Killer, among the most prolific serial killers in history, got the exact same sentence that he was required by law to impose on Wharton.

It was at Wharton’s sentencing that the two men first met face to face. “I looked at him with, I’m sure, a sense of pity,” recalled Fox. “He seemed sort of bewildered. He didn’t seem to have much hope. He didn’t seem surprised by what had happened.”

The announcement of Wharton’s sentence was a mere formality.

Doing life is not the same thing as doing time. During Wharton’s previous stints in prison, each day had represented progress; it was a step toward a positive goal—the out date. But this time was different. Each day now marked a positive step towards nothing; the passage of his life was the passage of his sentence.

First his siblings dropped out of contact, then his mother, whose health was failing. The years passed by. He turned 40. Most prison programs are not available to “lifers,” but he stayed in a 12-step program, did artwork when he could find supplies, and began attending Native American spiritual programs.

In 2004, Wharton’s sister asked him to call her, but all she had to say was that their mother had had a stroke; it was the first of several that would leave her brain permanently damaged. She finally visited him with his sister in 2009—his first visitors since he was locked up 12 years earlier—but the visit was more painful than joyous. He later told me, “It was like she was a child.”

Judges do not ordinarily have contact with clients outside of court. Even meeting to chat with former defendants in prison, as another Seattle judge had done, was seen by many as improper or dangerous. So it wasn’t until Fox announced his retirement in 2010 that he wrote to Wharton, asking if he’d be willing to meet.

Wharton didn’t know what to think as he walked to the visiting room. Someone had suggested to him that maybe the state had decided to change his sentence or charge him with something new.

“I remember you,” said Wharton, shaking hands. “I got the sense you didn’t agree with the sentence.”

“I remember your case vividly,” Fox replied.

They discussed Wharton’s family woes and how he had passed his time in prison. After an hour or so, Fox said, “I’m considering writing a letter to the governor and doing whatever is necessary to get clemency for you.”

The power of pardons and clemency belongs to the executive, not to the judiciary; it is a political process, not a legal one. The president and most governors may pardon or commute the sentence of anyone who falls under their jurisdiction (perhaps even themselves, should they care to try) for any reason or no reason at all. In Washington state, the Clemency and Pardons Board reviews cases and makes recommendations, but it is the sole prerogative of the governor to grant relief.

So Fox set about securing the sort of backing that would put the governor at ease. He convinced Perkins Coie, a prominent international law firm based in Seattle, to take on Wharton’s case; Harry Schneider, who had worked on the first Guantanamo Bay detainee case, would be Wharton’s lawyer. Dan Satterberg, the King County prosecutor, agreed to support Wharton’s petition. The Seattle Drug and Narcotic Treatment Center (Seadrunar) sent a letter of support. Fox even reached out to John Carlson, the pioneer of the three-strikes law back in the nineties, who agreed to write a letter advocating for Wharton’s release.

Meanwhile, Fox and Wharton talked regularly by phone—about rock music, classic sports cars, and family. Wharton described his rocky relationships with his siblings, and Fox talked about his son, who was troubled and struggled with video-game addiction.

“I can’t say why he would continually call me to talk about the same thing,” Fox told me, “but I felt it was a duty I had to assume. That I had started this and, had I not done what I did, there’s no way at all that this case would have come up before the clemency board. I thought: If I’m not going to talk to him, who is?”

Wharton’s case came before the Clemency and Pardons Board in December of 2012. Fox was there with Schneider and Wharton’s sister and mother. Wharton, who had recently been transferred to a prison near Spokane, was on speakerphone.

Schneider and Fox spoke about Wharton’s good behavior in prison, his management of addiction, and the post-release plan they had set up—Fox even described spending several hours inspecting Seadrunar and meeting with staff before signing off on it. “Nobody leaves Seadrunar without a job,” he said. Schneider noted how rare it was to have a prosecutor and a judge both in support of clemency.

When Wharton’s turn to speak came, he sounded nervous but firm. “I’m tired,” he said. “I’m tired of living like this. I’m tired of—I’m tired of not having no dreams, no hopes. I’m tired of watching my family grow up through photographs.”

The deliberation began immediately. As Wharton sat on the line, members of the board talked about how impressed they were by Fox’s presence and forcefulness.

“Mr. Wharton,” the chairman said, “I would just like to communicate to you that you are at the forefront of these three-strikers. There will be a lot of people looking at you.” He called for a vote, which was unanimous in favor of clemency.

Wharton apologized to his victims, who had been informed of the hearing but had chosen not to testify, and he acknowledged his obligation to the other three-strikers. “My actions impact their lives as well,” he said, promising to set a good example.

But Wharton was still in prison for life. He would wait on the governor’s decision. One way or the other, he would not have to wait long: By the time of Wharton’s hearing, Christine Gregoire had just over a month left in office. This timing was auspicious; traditionally, governors issue pardons and commutations on their way out of office, when the political price of an unpopular decision is lowest. But December came and went. At last, in the final hours of her last day in office, Gregoire’s office announced six pardons and four commutations. Wharton was not among them.

As Jay Inslee began his first term as governor of Washington in January of 2013, Wharton’s team felt defeated. There are no term limits for Washington governors, so it was anyone’s guess how long Inslee would remain in office.

But Nick Brown, a former federal prosecutor who served as Inslee’s general counsel, had come across Wharton’s file among his predecessor’s unfinished business. He was impressed, and set up a meeting with Wharton, who was now turning 50.

Brown tried to take the prisoner’s measure. It was clear to Brown that Wharton had spent a lot of time in prison—he had the look and the affect—but he seemed earnest. He was saying all the right things; he was likeable. Still, Brown had reservations. “I thought he genuinely wanted to succeed on the outside,” Brown told me. “But he’s a man in the middle stages of his life with not-great opportunities when he gets out. I was trying to ascertain how seriously he was going to take the requirements of life on the outside, and I had a little bit of skepticism.”

Brown decided that, on balance, Wharton was a good bet—good enough to risk granting clemency in the first few months of Inslee’s term. On June 30, 2013, the governor commuted Wharton’s sentence, provided that he fulfill the terms suggested by Fox the previous year: Most important, he had to graduate from a rehab facility, and he had to stay away from drugs and alcohol forever. But he would be free.

Seadrunar, the addiction-recovery center in South Seattle, occupies a former nursing home and describes itself as based on a “family model.” But it is run more like a boot camp. New arrivals undergo a  “social blackout,” when they are only allowed emergency and legal communication, or to talk with their children. Days begin early and end late, and clients are only allowed in their room when they are sleeping or sick. Job training is a priority; clients can participate in “work therapy” at Seadrunar’s recycling company.

Wharton was an outlier at Seadrunar, where the median age was 28 and few other clients had spent so much time in prison; the facility does not normally take people who have committed violent felonies.

Wharton and Fox in 2018
Courtesy of Joanne Kalas

Despite his social blackout, Wharton was allowed to visit his mother. As he came around the corner at the hospital, he saw his sister, Paula, for the first time in 16 years. “She came out in the hall,” he recalled, “and she wrapped her arms around me and we just started crying. I just told her, ‘I’m sorry. I’m sorry. I’m sorry I did this to everyone.’” His brother refused to interact with him.

During his time at Seadrunar, Wharton visited his mother three more times; her health was deteriorating fast. Darkness again pressed on his mind. “That’s when everything started disintegrating, you know?”

Seadrunar’s routines chafed. Wharton felt out of place among so many younger men, and he bristled at the hard-edged structure of the program, which had been one of its selling points. “They were just riding my ass every day,” he told me, “to the point where I got sick of it and I wanted to find alternative treatment.” He woke up one morning with his mind screaming, You can’t do this anymore. You’ve got to find something else. He left Seadrunar to seek treatment elsewhere—a violation of his probation that could have gotten him returned to prison—but he agreed to return.

When he went back, he says, the first thing the staff did was accuse him of smelling like booze. “I haven’t,” he protested, but he lost his privileges and was given a bunch of dirty chores. Then, he claims, the staff and the other clients inflicted a series of humiliating punishments on him. He says he was made to stand in the living room in front of the other clients while they took turns giving him a piece of their mind. Afterward, he says he was made to wear a life preserver and wear a sign that said, “I’m overbearing.” And, he says, he was given a toothbrush and told to scrub floor tiles with it. Then he was told to scrub the chain-link fence.

At five o’clock the next morning, he got up, took his stuff, and walked out the door.

Wharton walked ten miles to his old neighborhood, sticking to the back roads lined with neat houses. At last he got to the squat ranch that had been his childhood home. He hadn’t seen it since his arrest. The new owners had cut down some of the trees and torn out the shrubs and put up a chain-link fence. “That kinda screwed me up,” he told me.

He caught a bus into downtown Renton, and he saw that many of the properties seemed sparer and less welcoming. He noticed that there were more nonwhite people and more signs of poverty, crime, and unemployment. (During his incarceration, the rise of Amazon drove up housing costs in Seattle and pushed the city’s poor into the southern suburbs.)

At the bus station he bought a pack of cigarettes to ground himself—nothing about this place, his home, felt familiar or welcoming or safe. As he lit a cigarette, a man behind him called out, “Trade you some good crank for those smokes.”

Wharton looked at him. “Yeah, why not?”

With the methamphetamine surging in him, he went across town to a casino and ordered a double shot of Johnny Walker. After downing half of it—the first time he’d had a drink in 16 years—he felt woozy and left without finishing it. He went to a pay phone and called an old girlfriend, who came to pick him up.

Everyone wanted him to turn himself in. Schneider, his lawyer, called and assured him that they’d work it out if he just went back to Seadrunar. His sister shouted into the phone, “They’re gonna kill you if you don’t turn yourself in!” The next morning, Wharton called Seadrunar to see if he could return. A staff member told him he could, but with stipulations. Wharton called his parole officer to say that he was going back to treatment, and to apologize. The officer said to stop by before going back to Seadrunar.

At the office, Wharton was asked to submit to urinalysis, and he instantly broke down and admitted to using meth. “We’ll figure it out,” the officer said. “But I’ll have to take you downtown.”

When he was sent to jail, his case returned to Inslee’s desk for evaluation. “It was disappointing on a lot of levels,” Brown, Inslee’s lawyer, told me. “There were half a dozen violations or so of his conditions.”

A few days later, Wharton got word that his mother had died. Then he learned that he wouldn’t be allowed to attend her funeral. He called Fox over and over, but got no answer.

On the day that Wharton left Seadrunar, Fox was 12,000 feet above sea level at a hotel in Lhasa, Tibet, near the end of a tour through the Himalayas. A phone call came in for him, from his daughter, and it was through the paranoid haze of altitude sickness that he learned that Brendan, his son, had committed suicide.

Fox gathered himself to face the unthinkable loss. On the way to the airport in Tibet, he got an email from Schneider, saying that Wharton had run away from Seadrunar. He had no bandwidth for this, Fox thought; how much can a person take? He responded only to say that he didn’t have the capacity to deal with Wharton.

When Fox eventually reached out, some months later, Wharton was still in jail. Fox was angry that Wharton had thrown away this opportunity, but he also felt some regret. Seadrunar had been Fox’s idea, and he had made it a centerpiece of the plan for Wharton’s success. In retrospect, Seadrunar seemed like a poor fit; it was too authoritarian, he thought, and its staff were too willing to use humiliation as a punishment. Fox also worried that his unavailability in Wharton’s moment of crisis had contributed to the problem, and he worried about what that meant for Wharton, and for him.

“Here’s where I’m concerned,” Fox told me, “I think that the fact that I was in his corner was one factor in his thinking, ‘Well, I can just walk away.’” What was his responsibility to the man he had sentenced? A wrong had been righted, and he was ready to move on. He told me over and over again that he had intended his final contact with Wharton to be dropping him off at Seadrunar. Now he was being dragged back into this case.

But Fox was still dogged by the injustice of it. “I think he did screw it up,” he told me. “He was in a very vulnerable emotional condition when he walked away. But I don’t think you can look at what he did—he walked away, and then turned himself in after 36 hours—that that means he should go back to prison for the rest of his life.”

In February 2014, after four months in jail, Wharton was roused from his cell.

“You’re being released,” he was told, and he was given his clothes in a stack. His heart rose for a moment and then fell as he came around the corner and saw officers from the Department of Corrections holding shackles. The governor had revoked his commutation; his life-without-parole sentence had been reinstated. He was going back to prison.

Wharton was processed as a new arrival, just as he had been 17 years before, and he was taken to Coyote Ridge Corrections Center, in the arid rangeland of central Washington. He soon started getting threats from other lifers, who had followed his case closely and determined that he had messed up their chances for early release. A thwarted assault with a knife rattled him, and he started verbally lashing out against the men who were threatening him. Wharton was sent to administrative segregation—solitary confinement—in part for his own protection, in part for his threats. After only eight days at Coyote Ridge, he was transferred to Washington State Penitentiary in Walla Walla, the state’s roughest prison. “They put me right in the middle of the toilet and said, ‘This is where you’re going to die,’” he told me. “They said, ‘This is where you are going to get old and die because you fucked up.’”

He spent much of the summer of 2014 in segregation, sweltering as temperatures exceeded 100 degrees. “They just buried me down in this little, tiny hole in the middle of the desert,” he said. The culture at Walla Walla was different from the other places where Wharton had served time—violent, abrasive, controlled by racial gangs—and he was acutely conscious of being surrounded by, as he put it, “maniacs and killers.”

Over time, the anger cooled enough for Wharton to rejoin the general population, although publicity about his case would spark more tension. In 2015, an article in the Seattle Times about Washington’s parole system featured Wharton in a flattering light, and Fox approached the governor again about Wharton’s case. But Inslee dismissed the request.

“You know, the governor has to think that the next time Scott gets out and he uses meth, maybe he gets into a car and kills someone, or maybe some other violent act,” Brown says. “In this case, he’s lucky that he only hurt himself. But there’s only so much risk that you can take.”

The political climate of 2016 made it a nervy time for everyone connected to Wharton. Criminal justice had become a major issue in the presidential race, and not always in a way friendly to the case: Donald Trump was hinting at a return to the “tough on crime” policies that had gotten Wharton his life sentence in the first place. On the other hand, Barack Obama was on his way to granting the most clemency requests in 60 years.

Locally, the Inslee administration was reeling from a scandal that involved the mistaken release of 3,200 inmates from Washington state prisons over the course of 13 years. A committee formed to address the problem called it “one of the most significant cases of state-government mismanagement in Washington history,” and its potential damage was compounded by the fact that two deaths—and numerous other crimes—were ultimately traced back to people who were released in error.

Inslee nonetheless was reelected that fall, and with his new term came a new cabinet. The time seemed right in 2017, and Wharton’s new lawyer, Joanne Kalas, formally submitted Wharton’s request. In October of that year, Wharton learned that he had been granted a new commutation—likely the first person in Washington to be twice granted relief by the same governor for the same crime. The process was quiet; there had been no hearing, there was no press, no fanfare, no articles about him in the newspaper. When I spoke to Wharton shortly after getting the news, he was relieved, triumphant, and nervous. “This is my last chance to live life as a free man,” he told me. He confessed to being anxious about fulfilling the conditions of his release, given his previous misstep.

Fox seemed less nervous. “I’m confident,” he said, “that he’ll be chastened enough never to do something like this again.”

Around the time of the second commutation, Wharton had started calling Fox “Pops,” and Fox obliged by signing his emails that way. Fox still insisted to me that he was drawing boundaries between Wharton and himself, but it was harder to take those statements seriously. For Wharton’s part, the relationship was clear. “He’s like a father-figure to me—I love him like a father,” he told me over the phone. “I may not be replacing Brendan, but it gives him another male figure in his life.”

The day of Wharton’s formal release was drawing nearer. He was transferred to a minimum-security “camp” at Airway Heights, where I went to visit him in February 2018. We met for the first time in the visiting room, which was fragrant with microwaved burgers. He gave me a hug and talked about his hopes for when he got out: He wanted to get a commercial driver’s license and drive a short-haul truck route; he wanted to move to a small town in Eastern Washington, far from the temptations of the city.

The next time I talked to him, eight months later, he was walking down South Jackson Street in Seattle. Over the phone, I asked him how he was. “Got my Bluetooth on,” he said. “Got my backpack on. Happy. Free.”

In the last ten years, the United States has begun incarcerating fewer people, especially people who commit low-level crimes. The change has been slow and piecemeal, comprising everything from the creation of “problem-solving courts” to decriminalizing (or “defelonizing”) drug possession. Policy experts and advocacy organizations are even beginning to call for a reduction in sentences for violent crimes, which seemed unrealistic until a few years ago. Change is slow, and the United States still has the highest incarceration rate in the world, but, since 2009, the prison population has dropped by about 9 percent, or 144,200 people. Wharton was one of those people.

Wharton’s case is extraordinary because of the length of his sentence, the fact of his two commutations, and his relationship with the judge who presided over his trial—but he is not an unusual person to find in prison. A third of Washington’s prisoners are in for robbery, property crimes, or drugs, which covers almost all of Wharton’s criminal history. A majority have probably struggled with addiction; a 2010 report by the Center on Addiction found that 65 percent of incarcerated people met the DSM-IV criteria for a substance use disorder, and another 20 percent did not meet that standard but still had histories of substance abuse or addiction. Also, Wharton’s head injury put him in good company. Estimates vary widely, but it is likely that traumatic brain injury may be at least as common as substance abuse among people in prison. And we are only now beginning to understand the ravages of emotional trauma, mental illness, and PTSD on prisoners—and the ways in which all of these factors interact with each other.

Washington Governor Jay Inslee announced his run for the presidency on March 1, 2019.
Karen Ducey/Getty Images

But if Wharton’s transgressions and struggles were commonplace, the severity of his sentence was not: Only 62 of the 622 people in Washington serving life without parole were locked up for second-degree robbery, the charge that netted Wharton his third strike and life sentence. Earlier this year, Inslee removed the crime from the list of “strikes,” although the change was not retroactive. And Seattle, as its homeless population swells, has moved to decriminalize personal drug possession and redirect addicts to treatment.

Wharton is just the sort of person we are no longer comfortable incarcerating for long stretches, if at all. His criminal activity clearly stems from his addiction, and his addiction clearly stems from circumstances outside of his control—brain chemistry, the damage to his frontal lobe, and the traumas he has suffered. By the time of his release, the injustice of his life sentence seemed patent to almost anyone familiar with his story. As Wharton began the work of integrating into society, that injustice seemed to have been corrected—for a time.

When Wharton was released from prison in July of last year, Fox and Kalas had driven him the 300 miles back to Seattle, depositing him at the Salvation Army, where he began a 30-day “social blackout.” He later complained to me that there was “lots of God shit”: He was required to attend eleven hours of religious services and ceremonies every week. But after the blackout ended, he was allowed to sign himself out for most of the day on Saturday. He would head over to the cottage behind Fox’s house, on Lake Washington, and watch television, go on long walks alone, or sit and talk with Fox until the time came to return to Salvation Army.

Wharton started working in a customer-service job at the organization’s thrift store, where he impressed his supervisors and was soon entrusted with a position in the jewelry section. His whole affect was different. I had spent many hours on the phone with him before, and I almost didn’t recognize the voice on the other end of the line. He sounded unburdened, and I told him so. He paused for a moment. “I won my life back,” he said. “I won me back.”

Wharton with Fox’s terrier, Winston
Courtesy of Michael J. Fox

Ultimately, Wharton was let go from Salvation Army after violating some house rules (against swearing, against buying items from the thrift store), but he moved into Fox’s cottage. Fox helped him look for work, and Wharton did odd jobs around the house in lieu of rent. Wharton loved to spoil Fox’s terrier, Winston, and was delighted when Winston would run down to the cottage and sit at the door, whining to be let in.

Wharton finally got a high-quality psychiatric evaluation in February, which revealed the traumatic brain injury, as well as an anxiety disorder and PTSD from his years in prison. Armed with those diagnoses, he was approved for Supplemental Security Income. Wharton got a car, and Fox bought him six months of insurance as a gift.

But Wharton didn’t last a year on the outside. In mid-April, Fox told me that Wharton was in the King County Jail. After an AA meeting in March, Wharton had snorted a line of cocaine. Four days later, he arrived at his regularly scheduled appointment with his Community Corrections Officer and admitted that he could not drop a clean urinalysis. He was arrested, and again Inslee would decide his fate.

Wharton wrote Fox a long letter of apology from jail, assuring him that he was OK and that he didn’t want to cause Fox more “stress and depression.” He wrote, “you haven’t Quit me when you’ve have every reason to just throw your hands up and just walk away saying I’m ‘too fucked up to fix.’… Because you Believe in me and now you’ve gotten to know Scott the person.”

Wharton’s latest lapse raised all sorts of questions in Fox’s mind, especially about Wharton’s commitment to recovery and his ability to control his impulses. But most of all, it seemed like a personal betrayal. “I was furious,” he told me. Fox was diagnosed two years ago with prostate cancer, and the treatment has sapped his strength.* “I need to concentrate and get my rest,” he said, “and I don’t need situations that overtax me.” Still, he showed up at Wharton’s hearing, looked into better treatment options, lobbied Dan Satterberg, the county prosecutor, to support Wharton once again, wrote a letter of support, and met with Inslee’s general counsel on June 6.

The hearing officer recommended 60 days of jail and 30 days of inpatient drug treatment, but noted that, ultimately, it’s up to the governor.

On Tuesday, June 18, Inslee will convene his lawyers to discuss Wharton’s fate, but there is no time limit on his clemency decision. Such proceedings take place entirely at the discretion of the governor, and Inslee is now a presidential candidate—the kind of person who might be very reluctant to extend the sort of clemency that sometimes winds up in attack ads. At the same time, the public increasingly opposes long prison terms for people like Wharton.

Meanwhile, Wharton remains at the King County Jail. In our few, short phone calls recently, he sounds beaten down and tired. The jail is noisy and dirty and dangerous, triggering his PTSD. But it will be his home until Inslee either sets him free or sends him back to prison—this time, in all likelihood, for good.

“I miss you,” Wharton wrote in his letter to Fox. “I miss Winston too. I rubbed his head on March 19th and told him I was scared and hope I’ll see him again. Then I went in the cottage and took a look around, drove to Seward Park and sat there looking at the water and feeling the wind, Knowing it could be the last time.”

On October 15, 2019, after Governor Inslee approved his release, Wharton left the King County Regional Justice Center for an inpatient treatment program in Sedro-Wooley, Washington. “It was a long six months of soul-searching,” Wharton told me before leaving the jail. After his 30-day program ends, he hopes to move in with his girlfriend—a woman he met a few years ago as a pen pal when he was in prison. She lives in a small town in eastern Washington. “I just want to go somewhere I don’t know nobody,” he told me, “and get out of the city. It’ll be better there. It’ll be a lot better.” 

* A previous version of this story misstated the type of cancer Michael Fox was diagnosed with.