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Tuesday, August 17, 2004 - Page updated at 12:00 A.M.
Three-strikes life terms fewer than expected
By Maureen O'Hagan
Today, the controversial law known as I-593, which covers more than 40 felonies labeled the "most dangerous offenses," seems to have dropped from public consciousness.
Yet quietly, outside the public eye, I-593 prosecutions continue to chug along, fulfilling some of the measure's promises but offering a few surprises along the way.
There have been far fewer life sentences 229 through December than analysts expected.
Lower-level offenders such as nonviolent robbers have been affected the most by the law.
The law has had a trickle-down effect that has increased sentences for some crimes that are not included in the measure.
By far the largest proportion of imprisoned three-strike lifers is not murderers nor rapists the "worst of the worst" but second-degree robbers. Second-degree assault makes up the second-highest proportion of offenses, according to data from the Sentencing Guidelines Commission, which has tracked every I-593 case.
Many criminal lawyers consider these the lowest-level offenses covered under I-593. A person can commit either without using violence.
"There are some robberies that are brutal and are probably exactly what the average citizen thinks about as a robbery. There are others that are at the lower end of culpability," said Mark Larson, a King County prosecutor.
Take the Timothy Dukes case. In March 2000, Dukes hailed a taxi and asked to be taken to a hotel. Upon arriving, Dukes told the driver he only had a $100 bill, and asked him to wait while he changed the note at a KFC. Dukes sauntered in and out of the KFC and paid the driver. But instead of getting change, Dukes had robbed the KFC of about $100, thanking the clerk on the way out. No one was hurt.
He was sentenced to life in prison in September 2002.
Ida Leggett, executive director of the Sentencing Guidelines Commission, said the prevalence of less-serious three-strikes cases has prompted complaints to her office that the law "sweeps too broadly." Even prosecutors feel torn about sending these offenders to prison for life, she said.
Defense lawyer Steven Witchley puts it even more bluntly. His client, Freddie Hampton, is a crack addict who got a life sentence after three "note job" bank robberies in which he used neither violence nor weapons.
"Mr. Hampton is serving the same sentence as Gary Ridgway," Witchley said. "That says it all."
But Larson and others say it's appropriate to lock up people who "truly are chronic and repeat offenders."
Like Dukes, who had a prior robbery conviction in California as well as a conviction for theft and attempted assault in Pierce County.
John Carlson, a radio talk-show host and gubernatorial candidate who helped push the initiative, said it was passed to take two types of criminals off the streets. "One were the violent, vicious thugs. Second were criminals who committed lesser offenses over and over and over again and whose pattern could only be disrupted by life in prison."
The result, according to Carlson, is that future crimes might be prevented if repeat offenders are put behind bars forever. Dukes, in other words, can't rob again.
Deterrent for criminals?
Another surprise of I-593 is how infrequently it's being used compared with initial estimates. Before the law passed, the state Sentencing Guidelines Commission estimated that as many as 80 offenders could be sentenced to life in the first year alone. And David LaCourse of the Washington Institute for Policy Studies, which came up with the initial legislation, estimated 40 to 75 offenders getting life sentences each year.
Both were off the mark. The use of I-593 hit its peak in 1995, when 36 offenders were sentenced to life in prison; last year, the number dropped to 17.
Carlson said he thinks the low numbers mean that some criminals have abandoned crime or moved to a state where they won't face a life sentence.
Other experts, like Dave Fallen, executive director of the Caseload Forecast Council, the state agency that analyzes trends within the Department of Corrections and other agencies, say that's highly unlikely. Offenders, many of them drug addicts, usually aren't thinking about consequences when they commit their crimes.
"I've never met a rational career felon," Fallen said.
Instead, he believes, there are fewer three-strikes cases than expected because offenders often plead guilty to a lesser offense that isn't covered under the law. And defense lawyers say that over the past decade, the state's willingness to bargain has increased.
In recent years, as many as five in six potential third-strikers in King County were able to bargain away life sentences by pleading guilty to lesser charges not covered under I-593. But these offenders still received sentences far exceeding what they would have under old sentencing laws.
"I think we are still getting substantial sentences from people, although it is short of the full life-without-parole, you-die-in-prison outcome," Larson said.
That's what happened with Dana Webber. In February 2003, he snatched a sweatshirt off the rack at Foot Locker in SeaTac Mall. Employees chased him into the parking lot, where he turned around and brandished a pocket knife. "If you grab me, I'm going to cut you," he threatened, according to court documents. The employees backed down and Webber ran, but police soon arrested him. No one was hurt.
Criminal lawyers call this a "shoplift gone bad" it starts out as a simple shoplifting attempt but turns into the more serious charge of robbery when force is either used or threatened.
The distinction can mean the difference between life and a chance of release. Under I-593, shoplifting does not count as a strike, but robbery does. Webber risked life in prison for a $19.99 sweat shirt.
Before the Foot Locker incident, he had a record of serious crimes stretching back a decade. In 1993, he pleaded guilty to attempted robbery after shoving and punching two kids in a corner grocery; in 1995, he pleaded guilty to second-degree robbery and assault after snatching a woman's purse and dragging her along until she let go; in 2000, he pleaded guilty to third-degree assault for attacking his roommate.
Prosecutors initially charged Webber with a third-strike offense, second-degree robbery. But after negotiations, he pleaded guilty to theft and avoided life in prison. Prosecutors say that's common in nonviolent robberies.
"Frequently, we don't strike those people out," Larson said.
In the end, the sweat shirt cost Webber more than seven years in prison.
Webber's case illustrates how offenders are affected by I-593 even if they don't get life in prison: Hundreds of criminals with the least serious strikes are avoiding life, but are getting harsher sentences than they would have before I-593.
While plea bargains give offenders a chance at release, they do upset the balance in a justice system that for years had tried to maintain equity through the discretion of judges. Now, all of the power has been shifted to prosecutors, public defender Mark Flora said. And unlike judges, who make rulings in public that can be appealed, prosecutors "don't do it in the open. They don't have to tell anyone why they're doing it. And they don't have to justify it."
Prosecutors, however, say plea bargains help make I-593 fair, and address some of the concerns with a one-size-fits-all sentence.
"The system is made to work better by principled discretion by prosecutors," Larson said. "As long as you're articulating sound principles, you should come to a history of cases that kind of make sense over time."
The heavy use of plea bargains has had another effect on I-593: There haven't been as many costly trials as expected. A decade ago, analysts figured that nearly all offenders facing a third strike would ask to go before a jury, on the chance they might be acquitted.
Plea bargains have softened that effect, but the costs are significant nonetheless.
According to the King County Office of Public Defense, a typical felony case costs about $800. But the median cost for third-strike cases last year, including those that went to trial and those that did not, was $4,858. In 2002, one case rang in at $82,779 in defense costs.
The price of defense is high because the stakes are so high. Two lawyers are typically assigned to each third-strike case, and they file numerous motions challenging the charges from every angle they can. As in death-penalty cases, they prepare "mitigation packages" in the hope of persuading the prosecutor not to seek life in prison. And they sometimes spend hours negotiating.
Although the three-strikes law has, for the most part, been operating smoothly behind the scenes, some have continued to raise questions about its use.
One concern is racial disparity. African Americans make up just more than 3 percent of Washington's population, according to census data, but are nearly 40 percent of those serving life on three strikes. (That's an increase from 1997, when 34 percent of three-strikers were black. And it goes against the trend of sentencing reform, which since the 1980s has led to a reduction in racial disparity behind bars.)
Carlson has heard this criticism before and still doesn't buy it. "Three strikes doesn't target race," he said. "It targets conduct.
"I don't think people of any race want any of these guys in their neighborhood. ... Civil-rights groups should get on the side of black victims and off the side of black thugs," he said.
Another concern is how plea bargains are worked out, behind closed doors. King County Judge Michael Spearman wonders, "Is that a fair process? I think it's a worthwhile question to ask."
Leggett said the Sentencing Guidelines Commission has been considering proposing some changes to I-593 that could address the concerns involving less-serious offenders. She does not think prosecutors will oppose minor changes.
But Carlson vowed that "if anyone touches three-strikes-you're-out," he would come back with another initiative adding more offenses to the list.
And if that sounds like a threat, Carlson added, it is.
Maureen O'Hagan: 206-464-2562 or firstname.lastname@example.org
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