NATIONAL SIGNIFICANCE OF WASHINGTON'S 3-STRIKES LAW
Published on Washblog 4/6/08
By Noemie Maxwell

With 1 in 100 Americans currently behind bars, (1)   1 in 10 American children with a parent incarcerated or under community supervision, (2)  , and a massive re-direction of national wealth and talent into criminal justice policies that don't work, it is past time for a national consensus that we're locking up too many people. Mass incarceration is having profoundly destructive impacts on public safety, human rights, and democratic institutions at a time that we cannot afford the social destabilization that this brings.

Reform of Washington State's 3-Strikes law has national significance in relation to these developments.

Washington was the first state in the nation to pass a 3-Strikes law and ours is the harshest.  Voters approved I-593 in 1993 on the basis of this description in the voter's pamphlet: "By aiming at 3-time violent offenders, (593) targets the `worst of the worst' criminals.

Voters were motivated, in part, by the 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. "Little practical progress was made 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." (3)  

Voters were also responding to a growing crime rate. growing crime rate. (4)  In 1960, there were 56.6 violent crimes per 100,000 residents. By 1992, that had reached a peak of 534.5 per 100,000 residents. (Assault 2s are not included in that rate, as only aggravated assaults were included.) Property crimes rose from 2,575 per 100,000 residents in 1960 to 6,646 in 1988.

Few people would consider Robbery 2, which by definition involves no weapon or injury, or Assault 2, which is a crime of recklessness rather than intent to cause "great bodily harm. (5)   as "worst of the worst" crimes. Yet, these two relatively low-impact crimes associated with poverty and addiction are the most common triggers for life imprisonment under this law. Of approximately 280 people now serving life sentences under the law, approximately 200 have sentences relying on 1 or more convictions for these crimes. (6)

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. (7) 

In a 1997 analysis on 3-Strikes, (8) , R. David LaCourse of Washington Institute for Policy Studies, who helped author the 3-Strikes proposal, admitted that, actually, a "different category" of criminal had been targeted by the law than what "most people" voted for. This other category of criminal? "the chronic street thug..."

In 2001, Washington's Sentencing Guidelines Commission (SGC) recommended removing Robbery 2 from the 3-Strikes list and re-evaluating the inclusion of Assault 2 on the list, as some of the behaviors associated with that conviction are "probably not" commensurate with strike status. (9) For years, Washington legislators have  introduced legislation that would bring us into compliance with this recommendation.   Recently, county prosecutors responsible for upholding the law have weighed in with their discomfort with the inclusion of these crimes. (10)    All efforts to reform the law have so far failed.  Stevan Dozier, currently serving under 3-Strikes for 3 Robbery 2s quotes Washington State Representative Al O'Brien on what is needed next:  "There is not likely to be any change in the 3-Strikes Law until there is a public outcry." (11)  

The imposition of the same Life sentence for a fight in a bar or a wallet snatching as for aggravated murder violates RCW 9.94A.010, which requires that punishment for crimes in Washington be proportionate to the seriousness of the crimes and commensurate with punishment provided for similar crimes.  It violates the intent of the voters who approved 3-Strikes via Initiative 593 in 1993 with the understanding that they were voting to impose life sentences on "the worst of the worst."  

Washington's 3-Strikes law served as inspiration and a model for nearly half the states in the nation which have adopted similar laws -- although none as harsh as ours.

We started this.  It's our responsibility to face up to it.

By addressing 3-Strikes where it began, here in Washington, we meet our responsibility to reach out to fellow human beings who do not deserve life imprisonment and are, on a daily basis, struggling to keep hope alive and to survive.  

We also bring into public light, where they can inform opinion and policy, the findings of research and conscience that our policies are not working, and that we have, right now, the information and experience that we need to do a much better job.   In so doing, we powerfully advance a state and national movement for criminal justice reform.

Addressing Washington's 3-Strikes is a natural and a necessary part of advancing this reform movement for two reasons.

First, because the groundwork has been done: we can show that this law, as now applied, is unjust, ineffective, and in contradiction to what the voters of the state agreed to when they approved Initiative 593 in 1993. These truths can be seen with a degree of clarity that is exceptionally rare for any contested public policy.

Second, because a close look at our error in applying this law illuminates all the major trends which have, over the last three decades, brought us our current state of mass incarceration.   By bringing these trends further into public consciousness, particularly in ways designed to bring new energy into the larger movement, we advance it at a critical time.

Incarceration rates, both nationally and here in Washington, have exceeded the level known to reduce crime. In fact, we appear to have exceeded a "tipping point" past which rising incarceration rates have been shown to increase crime, rather than reducing it. (12)   With more than 13 million people spending time in prison or jail every year, (13)   we find ourselves in the midst of a massive social change that few people would consider positive.

Here in Washington, as nationally, our prison population has burgeoned: "The use of prison in Washington was quite stable from 1930 to 1980. On any given day during this 50-year period, roughly two persons were incarcerated in a state prison out of every 1,000 people in Washington between the ages of 18 and 49.2... Today, Washington's prison incarceration rate stands at about 6 adults incarcerated per 1,000 -- nearly three times the rate 30 years ago." (14)   Our state incarceration rate is actually higher than this, as this rate does not reflect Washingtonians who are in federal prison or county or local jails. The rate for African American Washingtonians is over 25 people per thousand. (15)

We cannot afford the unprecedented wealth gap that over-reliance on incarceration widens. (16)   We cannot afford the wild disparity in incarceration rates by race. (15)   We cannot afford to continue to pour massive amounts of public money into ineffective policies that hurt children and our future. (17)

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 sent me postings through Justice Works! for publication on Washblog. Their work, and their answers to my questions, brought to my attention many of the concepts and sources that appear below. (18)  

Mandatory sentencing and judicial discretion: A new trend in sentencing began in the 1980s.   Mandatory sentencing displaced, to a significant degree, the ability of judges to exercise discretion.  In 1981, Washington passed the Sentencing Reform Act, which instituted mandatory sentencing 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.  Several recent US Supreme Court cases have challenged this, and laws are changing for the better. (19) However, these decisions have the potential to restore some judicial discretion for imposing harsher sentences - without restoring the same level of discretion in the other direction.  This is now a point of debate within the criminal justice community in Washington State. (20)  

A goal of determinate sentencing was to reduce disparities in punishment and, in so doing, bring more fairness. As this new sentencing approach has been shaped in practice and by the courts, this has happened to some degree. However, the new approach has brought other distortions. In addition to the excessive harshness discussed in this piece, I am hearing from a number of incarcerated people that it is now common for defendants to be encouraged to plea 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 writes me:

"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."

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 immured, closed behind walls without connection to moral or humane considerations. Currently policy changes in Washington State are moving us back in the direction of rehabilitative methods. (21)    More funding is needed to advance this policy improvement.

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, (22)    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 I have downloaded here, 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..." (8)   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. (23)  

Hypercriminalization of behavior associated with poverty and addiction: The wildly 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. (15)  

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.  

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.  This law implements many of the recommendations of a 2006 report commissioned by the state legislature. (24)  

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)
• 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 determinate sentencing has resulted in destructive harshness and the stripping away of judicial discretion, it has also reduced wild disparities and complexities in sentencing.
• 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 often 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 that 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 lead 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 works for 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.

NOTIFICATION LIST Join for 1-2  messages/month

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. 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
4. Washington Crime Index Rates Per 100,000 Inhabitants, Washington Law Enforcement Agency Uniform Crime Reports 1980 to 2005, US States Crime 2004 -2006 Crimes per 100,000
5. RCW 9A.36 (Assault) and RCW 9A.56 (Robbery)
6. Based on data from: Persistent Offenders through 1st Quarter, 2007, Washington Sentencing Guidelines Commission.
7. Washington Supreme Court Justice Richard B. Sanders. Testimony on SB 6120, November 30, 2001
8. Three Strikes in Review, R. David LaCourse, Washington Policy Center, 1997
9. 2001 Sentencing Reform Act Review, Washington Sentencing Guidelines Commission.
10. In 1/23/08 Seattle Weekly article, Snohomish County Prosecuting Attorney Janice Ellis is quoted: "I've always felt like robbery 2 and assault 2 should not be on the list" of three-strikes offenses. Later in the article she notes that second degree assault is particularly common. "Maybe it's a reflection of our county, that we have a lot of bar fights," she says.

    King County Prosecuting Attorney Dan Satterberg, is the first county prosecutor to take action on this issue. In a phone conversation with the author in January, he 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. I 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."

11. Guest Post from WA State Reformatory: These Crimes do not Merit Life Imprisonment, Stevan Dozier, Washblog, 12/30/07.
12. 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)

    The criminal justice page of Washington State Institute for Public Policy, (http://www.wsipp.wa.gov/), a state government research institute, reflects over a decade of work to provide an evidence-based approach for state policy. A 2003 report, The Criminal Justice System in Washington State: Incarceration Rates, Taxpayer Costs, Crime Rates, and Prison Economics, uses a cost-benefit approach to track the impact of incarceration on crime rates. The study does not utilize newer, more comprehensive methodologies. Even using this partial approach, the report concludes that Washington's incarceration rate had passed a point of diminishing returns.
13. Confronting Confinement, Commission on Safety and Abuse in America's Prisons, 6/8/06. Over the course of a year, 13.5 million people spend time in jail or prison, and 95 percent of them eventually return to our communities.
14. Options to Stabilize Prison Populations in Washington, WA State Institute for Public Policy, 2006.
15. 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.)
16. The State of Working America 2006/2007, Lawrence Mishell, Jared Bernstein, Sylvia Allegretto, The Economic Policy Institute and Cornell University Press. Wealth inequality has not only persisted, but also grown much larger over time. The richest 1% of wealth holders had 125 times the wealth of the typical household in 1962; by 2004 they had 190 times as much or $14.8 million in wealth for the upper 1% compared to just $82,000 for the household in the middle fifth of wealth.
17. Bilchik, S., Seymour, C., & Kreisher, K. (2001). Children of incarcerated parents. Corrections Today, 63, 7, 108-112. Cited in Children of Incarcerated Parents, Council on Crime and Justice, 1/2006.

    Also see letter from Ronald Ein, Coordinator of Washington's Transition Re-Entry and Reform Coalition to Governor Gregoire, regarding the risks to more than 28,900 Washington state children who currently have a parent in prison.

18. The opinions and errors in this piece are my own, except where otherwise noted. I've been fortunate, through the help of Justice Works! to correspond with a number of people serving under Washington's 3-Strikes law and to speak and meet with family members and friends. For information on technical aspects of 3-Strikes and changes in sentencing, I owe special thanks to Frank Banks, James Barnes, Vance Bartley, Spencer Carter, Schawn Cruze, Stevan Dozier, Anthony Jones, James Moody, Theodore Rhone, and Al-Kareem Shadeed. Many thanks go also to Lea Zengage of Justice Works!, Ari Kohn of Post Prison Education Fund, and Nicole Brummitt.
19. 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 n36
    • 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
20. Minority Report: Restoring Judicial Discretion to Impose Exceptional Sentences for Violent Crimes, Washington Sentencing Guidelines Commission.
21. 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.
22. 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.
23. 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.)

    On treatment versus crime costs, see, for example: Drug treatment in the criminal justice system, Drug Policy Information Clearinghouse, Executive Office of the President, Office of National Drug Control Policy, 3/01.

24. 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.