SB 5292 would reform the "three strikes" law
I imagine I would be safe in assuming that anyone reading The Advocate is familiar with the "Three Strikes" law, but just in case, I'll give a quick summary.
There are certain crimes that are considered so serious that, when someone has been convicted of any three of them, the third conviction requires a life sentence. Crimes that fall within this category are called "Strike" offenses.
SB 5292 ("5292") would remove the crime of Second Degree Robbery ("Rob 2") from the list of "Strike" offenses. That may sound like a bad idea - John Carlson's recent special column in the Seattle Times certainly takes that position - it makes sense if you actually analyze the true impact.
Let me make one thing clear: I am in favor or the Three Strikes law. I believe that there are certain crimes that should carry life in prison for the third time around. I would even go so far as to say that I think there are crimes I'd like to see carry life in prison on the second or even first strike.
In other words, I am a staunch law and order type.
That being said, I favor removing Rob 2 from the list of strike offenses. I take this position based on the definition of Rob 2 and the belief that there are ways to alleviate the concerns of those who believe 5292 would lead to all manner of horrible consequences. In the world of criminal trials, this is referred to as the proverbial "parade of horribles."
I prefer to be guided by notions of justice and punishment that fits the crime. The following quote from Terence (I don't know who Terence is, but you can find his quote in Harper's Book of Quotations):
"The strictest justice is sometimes the greatest injustice."
I do not mean to cast aspersions at those who oppose 5292. But I do mean to educate them so that they can at least form their opinions with full information. John Carlson's article provides a good vehicle for looking at the issue.
He raises three basic concerns. He asserts that Rob 2 is a sufficiently serious crime to be considered a Strike offense.
He also expresses concern that serious Rob 1 charges that currently are pleaded to the lesser Rob 2 charge will no longer count as Strike offenses.
Finally, he then identifies a couple of rather violent defendants who would be released under 5292. I will take each argument in turn.
How is Rob 2 defined?
All state criminal statutes are contained in the "Revised Code of Washington", or the RCWs. (You can look up any RCW chapter and section at the Legislature's website. Just click on "Revised Code of Washington").
RCW 9A.56.190 defines robbery in general, and RCW 9A.56.200-9A.56.210 define Rob 1 and Rob 2. Rob 2 occurs when a person:
I emphasized the phrase "the degree of force is immaterial" for a very specific reason: Rob 2 can be committed in ways that are in no way serious enough to count as a Strike offense. A person who is caught shoplifting and pushes the store security person in the chest has committed Rob 2.
That is not to say the person will be charged with Rob 2 - most likely he/she will be charged with one count of 3rd Degree Theft and one count of 4th Degree Assault, each of which are gross misdemeanors carrying a maximum sentence of one year in jail. But that is not to say the person won't be charged with Rob 2.
Charging standards differ from county to county, and depend to a great extent on the culture of the particular county prosecutors and the counties themselves.
The bottom line is this: Rob 2, while serious in and of itself, does not rise to the level of being Strike-worthy. When dealing with a potential life sentence, it is simply unjust to include a crime that sweeps so broadly.
Rob 2 as a Plea Negotiation Tool
It is the nature of the beast that some criminal charges are pleaded down to less serious charges, or charges that carry a more lenient penalty.
Sentencing in felony cases is governed by the Sentencing Reform Act, or SRA. Unless there are extraordinary circumstances in a particular case, judges are required to sentence within a "standard range" as calculated pursuant to the SRA.
The standard range is determined from a table that is based on the crime and the defendant's criminal history.
Because the SRA leaves little room for judicial discretion in sentencing felons, the only real wiggle room for negotiating is to find a crime that carries a lower standard range. Thus, someone charged with Rob 1 would be more willing to plead guilty to Rob 2, which carries a lower standard range. But prosecutors do not reduce Rob 1 charges willy-nilly; they generally offer reductions only when there are legitimate proof issues with the more serious charge.
That explains why a defendant might plead to Rob 2 rather than Rob 1. But if a defendant already has a prior Strike offense, he/she runs a serious risk by pleading to another Strike offense such as Rob 2.
Guilty pleas under that scenario would be on the rare side. If a defendant has two prior Strike offenses, it would be malpractice for a defense attorney to advise a guilty plea to a third Strike offense.
So what does that all mean? It means that reductions from Rob 1 to Rob 2 are likely to be accepted by those with no prior Strike offenses.
It also means that those charged with Rob 2 have less incentive to plead as charged; they would be better served going to trial even in the example described above involving a shoplift and a shove.
If Rob 2 were removed from the Strike offenses, many of the cases involving less threatening behavior could and would be resolved by guilty pleas as charged.
The Parade of Horribles
Under 5292, any defendant sentenced to life in prison based on one or more Rob 2 convictions as Strike offenses would be entitled to be re-sentenced based on the SRA as if Rob 2 were not a Strike offense.
The Rob 2 conviction(s) would still count in determining the standard sentencing range, just not as a Strike offense.
In the world of criminal trials, a relatively common tactic is to point to a "parade of horribles" that would flow from the other side's arguments. (The parade of horribles is an equal opportunity argument - both prosecutors and defense attorneys have resorted to that argument.)
Carlson supports his argument by citing three examples of serious felons who would be released under 5292. But for every serious felon who would be released because one or more of their Strike offenses was a Rob 2, one could undoubtedly find examples of felons who would remain in prison for life based on Rob 2 convictions that do not justify such a sentence.
More to the point, 5292 would not eliminate the impact of Rob 2 convictions on sentencing ranges, nor would it preclude the legislature from increasing the impact of Rob 2 convictions on a defendant's sentencing range.
And those defendants who would be released would only be released because they had served the sentence prescribed by the SRA.
The Punishment Must Fit the Crime
Our criminal justice system is based on the concept that the punishment must fit the crime. Stated another way, the sentence imposed for a particular crime should be proportional to the circumstances of the crime.
SB 5292 recognizes the unfairness that can result when Strike crimes are defined too broadly; it helps maintain "justice" within our criminal justice system.
The words of Felix Frankfurther, one of the greatest U.S. Supreme Court Justices, still resonate today:
"It is a wise man who said that there is no greater inequality than the equal treatment of unequals."
There are certain crimes that are considered so serious that, when someone has been convicted of any three of them, the third conviction requires a life sentence. Crimes that fall within this category are called "Strike" offenses.
SB 5292 ("5292") would remove the crime of Second Degree Robbery ("Rob 2") from the list of "Strike" offenses. That may sound like a bad idea - John Carlson's recent special column in the Seattle Times certainly takes that position - it makes sense if you actually analyze the true impact.
Let me make one thing clear: I am in favor or the Three Strikes law. I believe that there are certain crimes that should carry life in prison for the third time around. I would even go so far as to say that I think there are crimes I'd like to see carry life in prison on the second or even first strike.
In other words, I am a staunch law and order type.
That being said, I favor removing Rob 2 from the list of strike offenses. I take this position based on the definition of Rob 2 and the belief that there are ways to alleviate the concerns of those who believe 5292 would lead to all manner of horrible consequences. In the world of criminal trials, this is referred to as the proverbial "parade of horribles."
I prefer to be guided by notions of justice and punishment that fits the crime. The following quote from Terence (I don't know who Terence is, but you can find his quote in Harper's Book of Quotations):
"The strictest justice is sometimes the greatest injustice."
I do not mean to cast aspersions at those who oppose 5292. But I do mean to educate them so that they can at least form their opinions with full information. John Carlson's article provides a good vehicle for looking at the issue.
He raises three basic concerns. He asserts that Rob 2 is a sufficiently serious crime to be considered a Strike offense.
He also expresses concern that serious Rob 1 charges that currently are pleaded to the lesser Rob 2 charge will no longer count as Strike offenses.
Finally, he then identifies a couple of rather violent defendants who would be released under 5292. I will take each argument in turn.
How is Rob 2 defined?
All state criminal statutes are contained in the "Revised Code of Washington", or the RCWs. (You can look up any RCW chapter and section at the Legislature's website. Just click on "Revised Code of Washington").
RCW 9A.56.190 defines robbery in general, and RCW 9A.56.200-9A.56.210 define Rob 1 and Rob 2. Rob 2 occurs when a person:
"unlawfully takes personal property from the person of another ... against his will by the use of threatened use of immediate force, violence, or fear of injury to that person or his property .... Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial."Rob 1 occurs when the perpetrator is armed with a deadly weapon (or what appears to be a firearm or other deadly weapon) or inflicts bodily injury.
I emphasized the phrase "the degree of force is immaterial" for a very specific reason: Rob 2 can be committed in ways that are in no way serious enough to count as a Strike offense. A person who is caught shoplifting and pushes the store security person in the chest has committed Rob 2.
That is not to say the person will be charged with Rob 2 - most likely he/she will be charged with one count of 3rd Degree Theft and one count of 4th Degree Assault, each of which are gross misdemeanors carrying a maximum sentence of one year in jail. But that is not to say the person won't be charged with Rob 2.
Charging standards differ from county to county, and depend to a great extent on the culture of the particular county prosecutors and the counties themselves.
The bottom line is this: Rob 2, while serious in and of itself, does not rise to the level of being Strike-worthy. When dealing with a potential life sentence, it is simply unjust to include a crime that sweeps so broadly.
Rob 2 as a Plea Negotiation Tool
It is the nature of the beast that some criminal charges are pleaded down to less serious charges, or charges that carry a more lenient penalty.
Sentencing in felony cases is governed by the Sentencing Reform Act, or SRA. Unless there are extraordinary circumstances in a particular case, judges are required to sentence within a "standard range" as calculated pursuant to the SRA.
The standard range is determined from a table that is based on the crime and the defendant's criminal history.
Because the SRA leaves little room for judicial discretion in sentencing felons, the only real wiggle room for negotiating is to find a crime that carries a lower standard range. Thus, someone charged with Rob 1 would be more willing to plead guilty to Rob 2, which carries a lower standard range. But prosecutors do not reduce Rob 1 charges willy-nilly; they generally offer reductions only when there are legitimate proof issues with the more serious charge.
That explains why a defendant might plead to Rob 2 rather than Rob 1. But if a defendant already has a prior Strike offense, he/she runs a serious risk by pleading to another Strike offense such as Rob 2.
Guilty pleas under that scenario would be on the rare side. If a defendant has two prior Strike offenses, it would be malpractice for a defense attorney to advise a guilty plea to a third Strike offense.
So what does that all mean? It means that reductions from Rob 1 to Rob 2 are likely to be accepted by those with no prior Strike offenses.
It also means that those charged with Rob 2 have less incentive to plead as charged; they would be better served going to trial even in the example described above involving a shoplift and a shove.
If Rob 2 were removed from the Strike offenses, many of the cases involving less threatening behavior could and would be resolved by guilty pleas as charged.
The Parade of Horribles
Under 5292, any defendant sentenced to life in prison based on one or more Rob 2 convictions as Strike offenses would be entitled to be re-sentenced based on the SRA as if Rob 2 were not a Strike offense.
The Rob 2 conviction(s) would still count in determining the standard sentencing range, just not as a Strike offense.
In the world of criminal trials, a relatively common tactic is to point to a "parade of horribles" that would flow from the other side's arguments. (The parade of horribles is an equal opportunity argument - both prosecutors and defense attorneys have resorted to that argument.)
Carlson supports his argument by citing three examples of serious felons who would be released under 5292. But for every serious felon who would be released because one or more of their Strike offenses was a Rob 2, one could undoubtedly find examples of felons who would remain in prison for life based on Rob 2 convictions that do not justify such a sentence.
More to the point, 5292 would not eliminate the impact of Rob 2 convictions on sentencing ranges, nor would it preclude the legislature from increasing the impact of Rob 2 convictions on a defendant's sentencing range.
And those defendants who would be released would only be released because they had served the sentence prescribed by the SRA.
The Punishment Must Fit the Crime
Our criminal justice system is based on the concept that the punishment must fit the crime. Stated another way, the sentence imposed for a particular crime should be proportional to the circumstances of the crime.
SB 5292 recognizes the unfairness that can result when Strike crimes are defined too broadly; it helps maintain "justice" within our criminal justice system.
The words of Felix Frankfurther, one of the greatest U.S. Supreme Court Justices, still resonate today:
"It is a wise man who said that there is no greater inequality than the equal treatment of unequals."
# Posted by Michael : 9:52 AM
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