Washblog

Weathering a 3-Decade-Long Tough on Crime Wave
Although Washington State’s incarceration rate nearly tripled between 1960 and 2005, (6, 7) it has stayed significantly lower than the national average. (8) At the same time, our state crime rate has followed a significant and steady downward trend similar to that experienced nationwide. The rate for Black Washingtonians is over 25 people per thousand. (9)

These relatively favorable trends in relation to the rest of the country are due, in part, to actions of the state legislature, which has, in a highly-politicized era, nevertheless consistently sought to give evidence a prominent place at the policy table. Since at least the early 1990s, Washington State Institute for Public Policy (WSIPP) has conducted research on criminal justice issues at legislative request, building a knowledge base and allowing for the state policy community to increase its collective experience in applying evidence to policy.

Washington’s 1984 Sentencing Reform Act (SRA) also employs a combination of 'presumptive' guidelines for sentencing, along with 'determinate' guidelines for release (no more parole extensions of prison terms), that has been shown to hold incarceration rates to lower levels. (8) There are justice and constitutionality issues with the reduction of judicial discretion under presumptive guidelines, particularly when they take the form of mandatory sentencing such as that imposed by 3-Strikes. These issues are being slowly addressed in the courts and are not yet resolved. (10)

On the whole, Washington State has weathered a 3-decade-long national tough-on-crime wave better than many other states. But we are still locking up too many people. 3-Strikes is one of approximately 200 changes to the SRA since the early 1980s (11) that, collectively, have increased sentence harshness, driving our state incarceration rate past the point of diminishing returns. Emerging research shows we are at a level that is likely to be exerting an upward pressure on crime rates. (3)

3-Strikes: An Outsized Impact on WA Incarceration Rates
The imposition of life sentences for low-violence crimes like Robbery 2, which by definition involves no weapon or injury, and Assault 2, often referred to as a ‘barroom brawl’, goes in a direction that is exactly opposite to the overall enlightened trend in state policy. It both directly and indirectly contributes to a rate of incarceration that negatively impacts public safety and shifts valuable public resources away from the public good.

Direct impact on incarceration rate: Life sentences for low-violence crimes keeps people behind bars – at a high expense for the state – much longer than public safety considerations merit. The two relatively low-impact crimes of Robbery 2 and Assault 2 are the most common triggers for this sentence. Of approximately 280 people now serving under the law, approximately 200 have sentences relying on 1 or more convictions for these crimes. (12)

Indirect impact on incarceration rate: Case law and public statements by prosecutors document that, although state law requires that “The sentencing guidelines and prosecuting standards apply equally to offenders in all parts of the state…” – it is common for defendants to be offered pleas for the purpose of allowing them to avoid a 3-Strikes sentence. (13)

This practice may uphold the proportionality requirement under RCW 9.94A.010, but it may also contradict the intent of the SRA, mitigate its beneficial impact, and violate defendants’ rights to equal protection. Justice Works! believes, based on anecdotal information, that the standard use of these plea bargains is likely to be exerting a system-wide upward pressure on sentence lengths that is not contemplated under the SRA. (14) Because the 3-Strikes sentence is so extreme and the stakes so high, we believe it is likely to be having a much greater negative impact on state sentencing through the use of plea bargains than the relatively low number of people incarcerated under the law would otherwise indicate.

Recent research shows that 3 Strikes laws are not associated with drops in crime rates. They are, however, are likely to be contributing to higher homicide rates:

"These particular results suggest that homicide rates in cities increase, on average, by 10.4% after a three strikes law is adopted. This finding is consistent with results reported by Kovandzic et al. (2002) and Marvell and Moody (2001). The most likely explanation is that a few criminals, facing lengthy prison terms on conviction for a third strike, may attempt to avoid such penalties by killing victims, witnesses, or police officers to reduce their chances of apprehension and conviction.” (15)

Washington's Legislature Takes Action: Current Research and Direction
In 2005, Washington's legislature directed the Washington State Institute of Public Policy (WSIPP) to study evidence-based approaches to reducing our incarceration rate. The study of sentencing and re-entry options that are expected to help us avoid the construction of more costly prisons was explicitly invoked: "The legislature intends to examine options that could stabilize the anticipated increase in numbers of adult incarcerated people at the projected 2007 level in order to avoid construction of major prison facilities." (16)

At this time, the state’s Sentencing Guidelines Commission is focused on this mandate. It is appropriate to suggest that the Commission undertake to explore how the imposition of life imprisonment for low-violence crimes, may be violating the intent of the SRA and holding us back from reaching a more favorable crime-to-incarceration ratio.

In 2001, the Commission recommended to remove Robbery 2 from the 3-Strikes list and evaluate the appropriateness of inclusion of all forms of Assault 2 on that list. (17) Legislators have attempted to do this for years, without success.

Further History and Background
Voters approved the Persistent Offenders Accountability Act, or 3-Strikes law, via Initiative 593 in 1993. The voter's pamphlet stated: "By aiming at 3-time violent offenders, (593) targets the `worst of the worst' criminals."

Public sentiment had moved in favor of the law in part due to the recent murder of a young Washington woman by a convicted rapist who was out on work release. The victim's mother, Ida Ballasiotes, and conservative activist and local television commentator, John Carlson, were the two most prominent advocates for mandatory life sentences without parole for conviction of a third serious crime. Violent crime rates had been on the rise for nearly two decades. (18)

"Little practical progress was made" in advancing the ballot measure "until 1993, when the powerful National Rifle Association (NRA) provided support for the "three strikes' campaign in the form of funding and access to its extensive mailing list. Despite significant public opposition from penal reform groups and criminal justice professionals, an overwhelming majority of voters approved Proposition 593 in a state-wide ballot in November 1993." (19) Washington’s citizens were led to believe that their approval of I-593 would forever lock up Washington’s “most violent” offenders. But instead, they voted for a law that, 15 years later, regularly imposes life sentences for lower-violence crimes, class B felonies associated with poverty, addiction, and youth.

In a 1997 analysis on 3-Strikes, (20) , R. David LaCourse of Washington Institute for Policy Studies, who helped author the 3-Strikes proposal, admitted that a "different category" of criminal had been targeted by the law than what "most people" voted for: "the chronic street thug..."

Washington Supreme Court Justice Richard B. Sanders noted in testimony on Senate Bill 6120 in 2001 that most people serving under this law are there for "relatively minor offenses' 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. (21)

The imposition of the same life sentence for a fight in a bar or a wallet snatching as for aggravated murder violates not only RCW 9.94A.010, which requires that the punishment fit the crime, but also promises made to voters that, by approving Initiative 593 they would be imposing life sentences on “the most violent” and "the worst of the worst."

Trends Expressed in Washington's 3-Strikes Law
As proposed below, numerous trends that have been developing over 3 decades in criminal justice intersect at Washington's 3-Strikes law. A number of people serving Washington 3-Strikes sentences have had their stories posted through Justice Works! for publication on Washblog. Their work, and their answers to our questions, brought to our attention many of the concepts and sources that appear below. (22)

Mandatory sentencing and judicial discretion: A new trend in sentencing began in the 1980s. Mandatory, or ‘presumptive’ sentencing displaced, to a significant degree, the ability of judges to exercise discretion. In 1981, Washington passed the Sentencing Reform Act, which instituted determinate sentencing in the state. A result of this reform was a significant diminishment in the ability of judges to exercise sentencing discretion, including their ability to consider such factors as defendants' personal history. In some respects, this was a positive development, resulting in more alternatives to incarceration for non-violent crimes and more certain sentences for violent crimes. It also reduced disparities in sentencing across regions and between individual judges. Mandatory sentencing, however, also reduces the ability of judges to consider defendants’ backgrounds and other factors. Several recent US Supreme Court cases have challenged mandatory sentencing, and both case law and statutory law continues to evolve. (10) Life imprisonment for low violence crimes under 3 Strikes is the worst face of mandatory sentencing.

Moving from rehabilitation to incapacitation: In large degree, we have shifted from an approach of rehabilitation in criminal justice to "incapacitation". Incapacitation views the offender not as a human being who can change and re-enter society, but as a danger that must be closed behind walls without connection to moral or humane considerations. Currently policy changes in Washington State – and nationally -- are moving us back in the direction of rehabilitative methods. (23)

Crime as economic and political currency: Since the 1980s, the use of crime stories to defeat political opponents and otherwise gain political support - as well as the growth of industries profiting from criminal justice ... has resulted an economic and political economy in which the crimes of poor people have become a kind of "currency". These developments have created industries and constituencies that are powerfully motivated to keep increasing criminal sentences. The US Securities and Exchange Commission 2006 statement for the $3 billion company, Corrections Corp of America, (24) discusses how the increasing demand for their beds from Washington State helped add millions to their revenue that year. This document discusses extensively how the legislative "environment' is related to CCA's profits. For example:

"In May 2006, the Senate passed legislation calling for stronger border enforcement. We believe these initiatives could lead to meaningful growth to the private corrections industry in general, and to our company in particular. We also believe growth will come from the growing demographic of the 18 to 24 year-old at-risk population. Males between 18 and 24 years of age have demonstrated the highest propensity for criminal behavior and the highest rates of arrest, conviction, and incarceration."

Public safety prioritized over justice: In the last three decades, legitimate concerns for public safety have been elevated so far over considerations of justice that both public policy goals have been diminished. The cornerstone of Washington State criminal law, enunciated in RCW 9.94A.010, is that punishment for crimes must be proportionate to the seriousness of the crimes and commensurate with punishment provided for similar crimes. Washington's 3-Strikes law, which imposes the same life sentence for an attempted purse snatching as for aggravated murder, clearly violates proportionality.

Special interest money shaping public policy: Voters approved Washington's 3-Strikes law with Initiative 593 in 1993 based on a voter's pamphlet and ballot that stated that the law would lock up the "worst of the worst' repeat violent offenders. In practice, the two crimes that most commonly trigger life sentences under the law are street crimes that often involve no weapons and no serious injuries. The National Rifle Association was the largest donor to this campaign.

Washington Policy Center, a "free market" think tank, wrote the original "think piece" behind 3-Strikes. In a 1997 piece which now appears to have been removed from the organization's site, a copy of which has been downloaded onto Washblog, WPC analyst R. David LaCourse admits that a "different category" of criminal was targeted than the kind that "most people" voted for. Mr. LaCourse writes: "While these first three criminals represent the kind of monstrous predators most people wanted stopped under Three Strikes, there is another category of criminal that was targeted -- the chronic street thug..." (20) He goes on to write about a King County family from which 4 members are currently serving under 3-Strikes -- all for Robbery 2s and Assault 2s.

Once problematic laws are passed, the same special interests oppose reform. Despite the wide recognition that low-violence crimes associated with poverty and drug addiction should not trigger life imprisonment, political considerations have prevented reform. Efforts to reform this law are defeated in the legislature every year.

A wealth shift from the public sector and the poor into dysfunctional policies: There has been significant wealth shift from the public sector and from the poor into policies that don't work and the industries that profit from them. Drug treatment saves public funds and prevents crime, but it is common for people who request treatment for drug addiction when they are sentenced, to be denied, and then to go on to commit more crimes.

Treatment for drug addiction in Washington costs approximately $3,500 per year, compared with an annual per-prisoner cost estimated between $22,000 and nearly $32,000. We have long known that drug treatment costs saves costs in both incarceration and the impact of crime. (25)

Hypercriminalization of behavior associated with poverty and addiction: The disproportionate impact on the poor and people of color of the war on drugs is mirrored in the inclusion of Assault 2, Robbery 2 and Burglary 2 on the list of crimes that trigger life imprisonment in Washington. These crimes are associated with poverty and addiction. We do not have enough money as a society to provide treatment for addiction. But we have found much greater sums to lock people up once their addiction leads to crime. Incarceration further impoverishes the poor and their families.

Washington's population is about 4% African American. Our 3-Strikes population is 45% African American. (9)

There has been some positive change on this front. The Supreme Court recently ruled that the sentencing for crack cocaine, used primarily by the poor - and powder cocaine - used by the middle class and wealthy, must be commensurate. Washington has instituted protocols of treatment rather than incarceration for some drug crimes.

A "wish and a prayer": vast social experiments based on hope and fear: We have applied sweeping changes to how we do criminal justice -- without evidence that they work. We have based our policies on an unreliable foundation of guesswork, trial-and-error, hope, fear, anger, and economic and political profit considerations. 3-Strikes, in a sense, is the centerpiece of a vast and reckless social experiment that has led us to the most dramatic mass incarceration ever in human history.

Real accomplishments in Washington State in using evidence to shape policy show that we don't need to rely so heavily on hope and guesswork. The problems of violence that we face are real. But we have the knowledge and tools for an evidence-based, problem-solving approach that can bring a much better balance of public safety and justice. This body of knowledge - and the recognition that it deserves a place at the center of public policy - is growing. In 2007, Washington's legislature passed SB 6157, a major state investment in improved community transition services to reduce offender recidivism and protect public safety.

PROGRESS
In calling for improvement it is important to acknowledge that we have also made considerable progress over the past three decades. Our successes and failures, both, have set a good groundwork.

• We have acknowledged, as a society, the needs and rights of crime victims and moved to significantly advance them legally and in public awareness. This is not only an important part of a larger human rights movement but also, quite likely, a necessary condition for positive reform of criminal justice. An early step in Washington was the addition, in 1989, of a Victims of Crimes -- Rights section to the State Constitution. (Article I Section 35) Ida Ballasiotes, an advocate for the 3-Strikes law, was also a key advocate for victims’ rights.
• We have shifted away from rehabilitation programs that do not work, developed programs that do work, and grown in our ability to distinguish between the two.
• Although mandatory / presumptive sentencing has resulted in destructive harshness and the stripping away of judicial discretion, it has also reduced sentencing disparities and appears, in combination with determinate release policies (specific sentences that cannot be expanded through parole), to have held our state incarceration rate to a level lower than that of most other states.
• There has been continual development of professional standards in corrections, though uneven progress in applying them. There is an increasing emphasis on an evidence-based approach in the courts, juvenile justice system, and corrections, and advancement in integrating the work of health, education, and criminal justice agencies to protect at-risk children.
• We have "learned by doing" that it does not work to simply set people free on the streets after serving their time without making sure they have a place to live and treatment for addiction.
• We have learned by doing that it works better to treat people for addiction than to punish them for it. Research is providing the needed evidence that the war on drugs is not working.
• Case law has moved us forward in understanding our constitutional rights related to criminal justice.
• A large body of research and program assessments on all aspects of criminal justice and corrections policy provides us many useful discoveries and evidence-based tools."

Thomas Kuhn, in The Structure of Scientific Revolutions, quotes the 16th Century philosopher Francis Bacon: "Truth emerges more readily from error than from confusion."

Kuhn then shows through historical examples how entrenched error has led many times over the centuries and in numerous fields of endeavor, to the development of tools, procedures, and beliefs that provided the only way through the errors they were created to advance. Some problems are so complex, the theory goes, that only by fully investing in wrong approaches can we transcend them and discover truths that would otherwise be forever hidden.

Error is part of the social ecology. It is part of the struggle of both an individual person who commits violent acts and then devotes himself or herself to personal redemption -- and the society committing "reckless violence' against its citizens in the attempt to balance justice and public safety. Barack Obama wrote in Dreams from my Father, that our laws, with all their imperfections, are the history of a nation "arguing with its conscience." We have fully invested in the error of 3-Strikes and the trends that meet in this law, and it has been a painful investment. We are on our way now toward taking the step of conscience to acknowledge that error and to follow the discoveries it leads us to. Children yet to be born are depending on what we do today.

1. One in 100: Behind Bars in America 2008, Pew Center for the States, January 10, 2008.
2. 10% of all minor children - 7.3 million children - have a parent in prison, jail, on probation, or on parole. Source: Christopher J. Mumola, 1996 Survey of Inmates in Local Jails, 1997 Survey of Inmates in State and Federal Correctional Facilities, 2001 Annual Survey of Jails, and 2001 National Prisoners Statistics Program (presented at the National Center for Children and Families, Washington, DC, October 31, 2002).
3. Crime rates in Washington state 1960-2006: http://www.disastercenter.com/crime/wacrime.htm
4. The Criminal Justice System in Washington State: Incarceration Rates, Taxpayer Costs, Crime Rates, and Prison Economics, Washington State Institute for Public Policy, 2003.
5. Liedka, R.A., Piehl and B. Useem. 2006. The crime-control effect of incarceration: Does scale matter? Criminology and Public Policy, 5(2):245-276. "Using state-level prison and reported crime data from 1972 through 2000, Liedka et al. (2006) found that, surprisingly, the effect of prison growth on crime diminishes as the scale of imprisonment increases. In fact, they determined that when the incarceration rate reaches a certain point (the inflection point), a further increase in prison population actually produces an increase in crime. They placed this inflection point at 3.25 prisoners per 1,000 persons in the general population." (Discussion of Liedka, et al. in: Do higher incarceration rates mean lower crime rates? Snyder, Howard N. and Jeanne B. Stinchcomb, Corrections Today, 10/06, 92-97)
6. Options to Stabilize Prison Populations in Washington, WA State Institute for Public Policy, 2006.
7. One in 100: Behind Bars in America 2008, Pew Center for the States, January 10, 2008.
8. OF FRAGMENTATION AND FERMENT, The Impact of State Sentencing Policies on Incarceration Rates, 1975-2002, Final Report to the National Institute of Justice, Grant No.: NIJ 2002-IJ-CX-0027, August, 2005., Don Stemen, Principal Investigator and Andres Rengifo, Co-Author, Vera Institute of Justice, with James Wilson, Fordham University
9. Selected statistics on state and national race disparities
   • Number of people in jail per 100,000 people in the U.S. adult population: general population: 750. Black males: 4,789. Black males 25-29: 11,695 (Prison and Jail Inmates at mid-year 2006, US Department of Justice)
   • Number of people in jail per 100,000 people in Washington's adult population: general population: 465. African Americans: 2,522. (Prison and Jail Inmates at mid-year 2005), US Department of Justice.
   • Percentage of people incarcerated in Washington state prisons who are Black: 20.1 (compared with state population that is approximately 3.5% Black). (Washington State Department of Corrections Statistical Brochure), accessed 4/5/08.
   • Twenty four percent (24%) of African American males are permanently disenfranchised under current Washington law. (Farrakhan v Gregoire, Brief of Amicus Curiae, National Black Police Association, et al., 12/11/06).
   • Over 45% percent of all Washington State prisoners sentenced to life without the possibility of parole under the "Three Strikes" law are African Americans. (Persistent Offenders through first Quarter, 2007, Washington Sentencing Guidelines Commission.)
10. Report of the Sentencing Guidelines Commission: Discretion under the Sentencing Reform Act and the Impact of Blakely v Washington. 12/1/05, Washington Sentencing Guidelines Commission. Selected court cases:
    • Apprendi v. New Jersey No. 99 478. Argued March 28, 2000 Decided June 26, 2000
    • Blakely v. Washington, (02-1632) 542 U.S. 296 (2004) 111 Wash. App. 851, 47 P.3d 149, reversed and remanded.
    • United States v. Booker, (04-104) 543 U.S. 220 (2005) No. 04-104, 375 F.3d 508
    • United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243, *3 n4 (D. Mass.2006); Kandirakis, *44 n3
    • Also see: Report on Federal Sentencing since US v Booker, 1/10/06 Jon M. Sands, Federal Public Defender to Ricardo Hinojosa, US Sentencing Commission.
11. House Bill 2214: Studying the Sentencing Reform Act, 2007. Approximately 200 amendments to the SRA are noted in the findings section of this bill.
12. Based on data from: Persistent Offenders through 1st Quarter, 2007, Washington Sentencing Guidelines Commission.
13. RCW 9.94A.340: "The sentencing guidelines and prosecuting standards apply equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant."
14. Prosecutorial standards: RCW 9.94A.411, and plea agreements. RCW 9.94A.421 and .450.

    In a phone conversation with one of the authors in January, King County Prosecuting Attorney Dan Satterberg stated that he’d asked attorney Jeff Ellis to look at some of the early King County 3-Strikes cases that involved Robbery 2 and Assault 2. "We don't believe in just throwing away the key," Satterberg said. "And we do deal with these cases in a different way now. Robbery 2 is a young man's game. Some of the Assault 2 cases, as well. Clemency is the way to go on these. We think it's worth a shot. We remember the cases that came up back in 1994 and 1995 and we would not be asking for the life sentence on some of those cases now. Some of the people who were sentenced then have already served ten or twelve years."

    See State v Moon, 130 WA App 236, for example of a plea bargain to avoid 3-Strikes sentence. We believe it is common for defendants to be encouraged to plead to crimes that they did not commit in order to avoid convictions for the Robbery 2s and Assault 2s that they did commit.

    One man wrote to Justice Works!:

    I took a plea deal for 30 years to avoid the third strike. The original crimes, Second Degree Robbery. The charges were amended to First Degree Theft because, as the State put it for the record, that all of these offenses were non-violent and Mr. _ never used any weapons in the commission of his crimes."

15. Tomislav V Kovandzic, John J Sloan III, Lynne M Vieraitis. ""STRIKING OUT" AS CRIME REDUCTION POLICY: THE IMPACT OF "THREE STRIKES" LAWS ON CRIME RATES IN U.S. CITIES. " Justice Quarterly : JQ 21.2 (2004): 207-239.
16. SB 6094 - 2005-06 Making appropriations and authorizing expenditures for capital improvements.
17. 2001 Sentencing Reform Act Review, Washington Sentencing Guidelines Commission.
18. Washington Crime Rates, The Disaster Center, (disastercenter.com/), Accessed 5/13/08
19. Three Strikes and You're Out: Exploring Symbol and Substance in American and British Crime Control Politics. Trevor Jones and Tim Newburn. BRIT. J. CRIMINOL. (2006) 46, 781 – 802.
20. Three Strikes in Review, R. David LaCourse, Washington Policy Center, 1997.
21. Washington Supreme Court Justice Richard B. Sanders. Testimony on SB 6120, November 30, 2001.
22. For information on technical aspects of 3-Strikes and changes in sentencing, we owe special thanks to a number of people who are incarcerated under this law: Frank Banks, James Barnes, Vance Bartley, Spencer Carter, Schawn Cruze, Stevan Dozier, Anthony Jones, James Moody, Theodore Rhone, Stonney Rivers, and Al-Kareem Shadeed.
23. See, for example, SB 6157, which aims to reduce offender recidivism through major investment in improved community transition services. And Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates, 2006 October. Steve Aos, Marna Miller, Elizabeth Drake. #06-10-1201, Washington State Institute for Public Policy.
24. US Securities and Exchange Commission Form 10-K, for Corrections Corp of America, fiscal year ending 12/31/06. Also see NASDAQ Summary quote for CCA, which shows a $3.2 billion market share.
25. Bureau of Justice Statistics State Prison Expenditures, 2001, gives the annual cost to incarcerate each person in state or federal facilities as approximately $22,650. The Washington State Institute for Public Policy used both operating and capital costs (cost of maintaining the facilities) to estimate a cost of nearly $32,000 per inmate, annually. (The criminal justice system in Washington State: incarceration rates, taxpayer costs, crime rates, and prison economics, 1/03. See page 8.)