January 8, 2009
RECENT DEVELOPMENTS ON WASHINGTON STATE'S
“THREE STRIKES” LAW
By: Kevin E. McCarthy, Principal Analyst
You asked for a discussion of recent developments regarding Washington's “three strikes” law.
Washington passed the first three strikes law in the United States in 1993. The law initially mandated life imprisonment without parole for those convicted three separate times of a wide range of felonies. Washington has substantially amended its law twice. In 1996, it mandated life imprisonment for people who commit certain crimes, such as first degree rape or sexually-motivated felonies, twice. This session the legislature expanded the crimes that invoke the life imprisonment penalty to include any felony crime conviction in another state where there had been a finding of sexual motivation, if the minimum sentence imposed was 10 years or more.
Washington's Sentencing Guidelines Commission, the agency charged with evaluating sentencing policies and recommending modifications to the governor and legislature, has found that the most common “third strike” is Robbery 2 (second degree robbery). It recommended in 2001 that the legislature remove Robbery 2 and consider removing some forms of Assault 2 from the list of offenses triggering life imprisonment. The legislature has not enacted the recommendation.
The law does not affect the governor's power to grant clemency, but until recently no offenders sentenced to life imprisonment under its provisions have had clemency hearings. In December 2008, the state's clemency board held its first hearing on a prisoner held under the three strikes law. The prisoner, Stevan Dozier, had been convicted three times of second degree robbery. King County (Seattle) prosecutor Dan Satterburg argued for clemency at the hearing. The board recommended that Dozier's sentence be commuted and Governor Gregoire is currently reviewing the case.
According to the National Conference of State Legislatures, 29 states have adopted three strikes legislation, including Connecticut. In 2003, the U.S. Supreme Court upheld California's three strikes law in Ewing v. California, 538 U.S. 11 (2003), and Lockyer v. Andrade, 538 U.S. 63 (2003). The Court held that the life sentences imposed under the law are not so grossly disproportionate to the criminal history of a career offender as to violate the Eighth Amendment's prohibition against cruel and unusual punishment.
WASHINGTON'S ORIGINAL LEGISLATION
In 1993, the voters of Washington approved Initiative 593, which found that nearly 50% of the criminals convicted in the state had prior criminal histories and which states:
Punishments for criminal offenses should be proportionate to both the seriousness of the crime and the prior criminal history. By sentencing three-time most serious offenders to prison for life without the possibility of parole, the people intend to: (a) Improve public safety by placing the most dangerous criminals in prison. (b) Reduce the number of serious, repeat offenders by tougher sentencing. (c) Set proper and simplified sentencing practices that both the victims and persistent offenders can understand. (d) Restore public trust in our criminal justice system by directly involving the people in the process.
The initiative amended Rev. Code. Wash. Sec. 9.94A.030 to define a “persistent offender” as one who has been convicted in Washington of any felony considered a “most serious offense” and who had previously been convicted as an offender on at least two separate occasions, in Washington or elsewhere, of felonies that under Washington law would be considered a “most services offense” and would be included in the offender score under the statutory sentencing system (Rev. Code Wash. Sec. 9.94A.525). At least one of these convictions must have occurred
before the commission of any of the other most serious offenses for which the offender was previously convicted (in other words, the two prior convictions must occur on separate “trips” through the system).
The initiative defined “most serious offenses” to include all class A felonies (crimes such as murder, rape, first-degree assault, and first-degree child molesting), 17 other specific offenses, any other class B felony that the court found was sexually motivated, and any felony involving a deadly weapon.
The initiative created Wash. Rev. Code Sec. 9.94A.570, which requires that a persistent offender be sentenced to life imprisonment without the possibility of release. (Offenders convicted of aggravated murder in the first degree may be sentenced to death.) In addition, persistent offenders are ineligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, any other form of release, or any other form of authorized leave from a correctional facility while not in the direct custody of a corrections officer or officers. The only exceptions are for emergency medical treatment or for commitment to an inpatient treatment facility in the case of an offender convicted of first degree rape.
The initiative specified that it did not reduce or eliminate the governor's power to grant a pardon or clemency to offenders on an individual case-by-case basis. But, it recommended that (1) any offender sentenced to life imprisonment not be considered for release until he or she has reached at least 60 years old and has been judged to be no longer a threat to society and (2) sex offenders be held to the utmost scrutiny regardless of age. The initiative required the governor to provide twice yearly reports on the activities and progress of offenders who are released through executive action during his or her tenure. These reports must continue for at least 10 years after the offender's release, or until the released offender dies, whichever is earlier.
Amendments to the Law
In 1996, the legislature broadened the definition of persistent offender to include “two strike” sex offenders. To qualify as a persistent sex offender, an offender must have two separate convictions of specified sex offenses. The offenses qualifying as sexual strikes are listed in Rev. Code Wash. Sec. 9.94A.030 and include first and second degree rape as well as several additional crimes, such as assault or burglary, when there has been a finding that the crime was sexually motivated.
In the 2008 session, the legislature passed SB 6184, which expanded the crimes that invoked the life imprisonment penalty to include any felony crime conviction in another state where there had been a finding of sexual motivation, if the minimum sentence imposed was 10 years or more. The bill, which had failed in the two previous sessions, passed the Senate unanimously and on a vote of 92-2 in the House.
In 2001, Washington's Sentencing Guidelines Commission recommended that the legislature remove Robbery 2 and consider removing some forms of Assault 2 from the list of offenses triggering life imprisonment. Robbery 2 (taking of something by threat or use of force) is the lowest-level crime to be labeled a strike, according to the commission. The commission noted that the range of behaviors associated with Robbery 2 and some instances of Assault 2 do not rise to the level of “most serious” offenses. In the case of Robbery 2, the commission argued that these behaviors pose “little risk of physical injury.”
In 2004, the commission found that the number of sentences imposed under “two-strikes” provision was very small and appeared to be declining. The commission found that during FY 03 three offenders were sentenced under “two-strikes.” Ten sex offenders were sentenced to life in prison under the “two-strike” provision in FY 02 and nine sentences were entered in FY 01.
The commission's most recent report found that, as of March 2007, 292 individuals had been sentenced to life imprisonment under the three strikes provisions. Of these 40.1% were black and 57.3% were white. The most common third offense was Robbery 2 (23.3% of cases), followed by Robbery 1 (15.8%), and Assault 2 (8.2%).
Legislation was proposed in 2005, but not enacted, that would have allowed prisoners whose three “strike” convictions do not include any Class A felonies to ask for release after serving 15 years.
In a study of cases from 2003 through 2007, the King County Office of Public Defense found that 92% of defendants initially charged with a third strike offense ultimately received a sentence less severe than life without the possibility of parole.
In December 2008, the state's clemency board held its first hearing on a prisoner held under the three strikes law. The prisoner, Stevan Dozier, had been convicted of second degree robbery (purse snatching) in 1994, following two similar convictions in 1986 and 1988. King County (Seattle) prosecutor Dan Satterberg urged Dozier to submit a clemency petition after conducting a review of 20 early three strikes cases prosecuted by his office. At the hearing, Satterberg stated that if Dozier's third-strike case came to his office today, he likely would not seek a life sentence because his crime is the lowest crime eligible for a three-strikes conviction in the state. Satterberg also argued that Dozier had reformed himself while in prison. The board voted unanimously to recommend Dozier's sentence be commuted. Dozier's case is being reviewed by Governor Chris Gregoire.
Satterberg has also asked defense attorneys for more information about two other cases he has chosen as possible clemency candidates: Paul Rivers, whose third strike was stealing $340 from an espresso stand, and David Conyers, who was sentenced under the law at age 21 after being convicted for sticking up a series of convenience stores while pretending to have a gun in his pocket.