November 30, 2001

The Senate Committee on Judiciary

Washington State Senate

Re: SB 6120 Hearing, November 30, 2001, 8:00 a.m.

Dear Hon. Members of the Committee on Judiciary:

I am here to offer testimony on Senate Bill 6120, cosponsored by Senators Kline and Hochstatter, which would delete second degree robbery and second degree assault from the list of felonies subject to the extraordinary sentence of life without possibility of parole under the Washington Persistent Offender Accountability Act, aka Three Strikes, You’re out. Canon 4 of the Code of Judicial Conduct specifically provides that judges "may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice. . . ." So here I am.

I will premise my remarks upon the observation that the Washington Supreme Court has so far upheld the act against a variety of constitutional challenges. I am therefore not here to counsel that the act is unconstitutional, but rather offer some facts and opinions regarding the effect of the act, particularly with respect to second degree robbery and second degree assault, on individuals as well as statewide public policy considerations.

I will review the essential features of our three strikes law as well as our experience with the law over the eight years that it has been in effect.

As you know three strikes was adopted by the people in November 1993, by initiative 593. Although to date approximately 25 states have adopted "three strikes" laws, our statute differs from most others in a number of respects. First, we have a very long list of 54 qualifying felonies which qualify as "strikes" whereas in many other jurisdictions crimes equivalent to our second degree robbery and second degree assault are not counted as strikes. Second, whereas many other states allow a measure of judicial discretion with respect to imposition of the penalty, our statute allows no judicial discretion, none whatsoever. The sentence is automatic upon conviction of the third qualifying felony. Third, the penalty actually imposed by our statute, by any measure, is the harshest in the nation: life without possibility of parole. For example, California, which is viewed as having a very harsh statute, imposes 25 years.

In practice, our statute has had several consequences, some of them probably unintended.

First, repetitions of comparatively minor criminal conduct results in the imposition of a sentence much more severe than would be meted out for first degree murder. Second degree robbery, for example, is theft with use or threat of force, however slight. State v. Handburgh, 119 Wn.2d 284, 213, 830 P.2d 641 (1992). This has resulted in life incarceration for a woman shoplifter who was thought to be armed because she had a curling iron in her purse. Another example, State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996), resulted in life without possibility of parole for a young man who snatched $300 from an espresso stand, and, while running away, put his finger in his pocket claiming it was a gun. Stealing a loaf of bread at the corner grocery store and pushing a clerk out of the way during the exit would also qualify as second degree robbery, a strike. Second degree assault can be little more than a fist fight or a barroom brawl. Individuals striking out for this type of crime, in point of fact, serve a sentence grossly disproportionate to even the standard range sentence they would receive for first degree murder (23 yrs.,4 mos.), it is the same they would serve for first degree aggravated murder, e.g., torture killings, etc.

It is also interesting to note that of the nearly 200 individuals currently incarcerated under the three strikes law, most of them are there because of convictions for these relatively minor offenses, not for the truly "violent" crimes, which some might perceive three strikes was designed to target. This is the case because those that commit truly violent crimes are already subject to long prison terms, meaning by the time that they are released from their second lengthy term, their chance for a third repetition is relatively slight, if for no other reason than old age or death in prison.

Although most violent crime is committed by young offenders, we will see the three strike prison population to be increasingly weighted toward the geriatric end of the scale, the time in one’s life when violent criminal activity is the least likely.

Sometimes it is argued that three strikes gets the "career criminal" off the streets. That may be true, however, he remains off the streets long after his "criminal career" has ended. Statistics indicate that the average criminal career is five years, ten years at the most. Linda S. Beres and Thomas D. Griffith, Do Three Strikes Laws Make Sense? Habitual Offender Statutes and Criminal Incapacitation, 87 Geo. L. J. 103 (1998). Normal sentencing procedures would often cause the incarceration of the individual for that length of time, it is three strikes which keeps him there for the rest of his life. All crimes for which three strikes applies carry a maximum of at least 10 years.

Therefore the unintended consequence of the three strikes law is to impose the most severe sentence the state has to offer, short of the death penalty, on those recidivist criminals who have committed the least serious of the enumerated strikes.

In consequence, penalties are imposed upon individuals grossly disproportionate to the criminal activity for which they were convicted, they will remain incarcerated far beyond the time frame in which their criminal activity is likely to continue, and, finally, at substantial cost to the taxpayers of this state. The Sentencing Guidelines Commission calculated a savings to taxpayers of $5 million in just the current second degree robbery offenders should they be resentenced. This figure does not reflect capital cost savings and it does not reflect future second degree robbery offenders who would strike out. It has not included second degree assault. In actuality when talking about savings to the taxpayer of 10’s if not 100’s of millions of dollars, enough to deal with public improvements such as building a baseball stadium.

If there were no other reasons than these, I would conclude that the subject bill should be enacted. However, there are other more general reasons as well.

First, the nondiscretionary nature of the life without possibility of parole sentence means that trial courts are denied the opportunity to consider all of the factors associated with the crime and the individual when fashioning a sentence most appropriate. Individualized consideration in sentencing matters at the discretion of the trial court, is, I would argue, essential to justice in any particular case. Accordingly I would argue it is unwise public policy to divest our judiciary of the discretion necessary to properly deal with individualized circumstances. Traditionally, the legislature has participated in the sentencing process by prescribing maximum sentences whereas it has always been the function of the judiciary to impose the just sentence within that legislated maximum.

Second, recent statistical studies demonstrate that public safety is not benefited by the three strikes statute. Analysis on this point is sometimes confused by the fact that the crime rate in this state has declined since the passage of the three strikes statute. This has led some to contend that the three strikes statute accounts for the decline.

Numerous studies, however, have been conducted on this point. In point of fact the national crime rate has declined since approximately 1992 or 1993 in all states, and the crime rate of states without three strikes statute has declined as much if not more than the crime rate in the state of Washington. Scholarly journals seem to be unanimous that three strikes does nothing to diminish the crime rate. Individuals it incarcerates who are likely to reoffend would probably be in prison anyway and its potential deterrence is lost on the typical criminal mind which seems to function substantively below the acumen of Dr. Hannibal Lecter.

Conclusion

It is therefore my conclusion that the three strikes law in general, with the inclusion of second degree robbery and second degree assault as strikes, in particular, is extremely problematic. In practice its application is not to the most violent offenders, but to the least. Sentences are unjust because they are disproportionate to the actual nature of the crime committed. The hands of the judiciary are tied when it comes to providing individual justice. The public safety is not advanced over preexisting sentencing procedures and the cost to our fellow citizens and taxpayers to incarcerate an ever burgeoning prison population are enormous and could be better spent in almost any other way (including baseball stadiums and, god forbid, return of tax revenues to the taxpayer).

Thank you for allowing me to share my thoughts. I will make available to any of you upon your request the factual documentation upon which this testimony is based.

Very truly yours,

Richard B. Sanders

Fn. 1/:  Source:  U.S. Department of Justice, Bureau of Justice Statistics

(http://www.ojp.usdoj.gov/bjs); FBI Uniform Crime Reports (http://www.fbi.gov).

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