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Sentencing Task Force recommends major changes in WA criminal law

Wholesale reform or tinkering at the edges?

The sentence for attempted murder in Washington state is between 308.25—411 months.

You might expect therefore that a teenager who shot his marijuana dealer during a drug transaction would be charged with attempted murder, and if found guilty could face up to 35 years in prison. (The dealer recovered.)

You would be wrong. Derek Williams was sentenced in 2004 to 58 years in prison.

He’s still there, now aged 36.

Family members and friends of formerly incarcerated individuals described their experiences with Washington’s prison system in front of the Capitol on February 7.

A 58-year sentence is not unusual in Washington. A recent study by the ACLU/University Washington showed that the number of felony defendants sentenced to long, very long and life sentences increased dramatically from 1986 to 2016. In 2019, 41.5% of all people in Washington prisons were serving a sentence of 10 or more years. Seventeen percent were serving life sentences.

The frequency with which long and life sentences are imposed by Washington courts has increased steadily over four decades even as the rate of violent crime fell. Between 1986 and 2016, violent crime decreased by 31% but the rate at which long sentences were imposed rose by 174% and judges meted out 4 times as many sentences ranging from 10-20 years. In the same period, five times as many defendants received sentences of 20-40 years. (40 years and over is considered a life sentence.)

Derek’s 58-year sentence

People of color, adolescents like Derek Williams, and young adults were overrepresented among those serving long and life sentences. One reason for this is because prosecutors have the option to pancake charges: In Derek’s case, he was charged with First Degree Attempted Murder—and three other counts, each carrying its own sentence.

The sentencing grid defines hundreds of distinct crimes and assigns each one a sentence range. What might be understood by the average person as one crime can, in the hands of a prosecutor, turn into several felony counts.

The sentencing grid also identifies a level of seriousness (from 1 to 9+) which produces a “score” based on an individual’s criminal history. The purpose of this point score is to lengthen sentences. A recent report to the legislature stated that this “use of criminal history operates behind the scenes to aggravate sentences.” The ACLU study found that repeated changes to the rules for calculating scores were the most significant factor in the proliferation of long and life sentences.

Scoring for juveniles is especially pernicious

Where young people are concerned, scoring criminal history can add years to a sentence and includes points even for minor “juvenile dispositions.” This contradicts the new understanding of the adolescent brain as different from a mature adult brain. Decisions by the US Supreme court and Washington state courts recognized this and have allowed retrials for people like Derek Williams who were sentenced to life for crimes committed before age 18. Treating past behavior by a juvenile as if it represents the same culpability as an adult, is subject to the same criticism.

Tinkering can be important

HB1324, introduced by Rep. Dave Hockney, would exclude use of scoring in setting sentence length for crimes committed as juveniles. Hockney spent most of his career as a federal prosecutor. He was joined on Feb. 7 by a small group of people working with the Freedom Project and who gathered to support the bill. “Why are we using ‘juvenile points’ when we know that the juvenile brain is still developing?” was the question. The bill would also allow some incarcerated individuals to have their sentences recalculated exclusive of points.

How did we get here?

In the 1970s and ‘80s, a new idea about “criminal justice” took hold: the purpose of putting offenders in prison was to exact retribution and remove “dangerous criminals” from society. By the 1990s, Democratic politicians had joined Republicans in competing for the label “tough on crime,” stoking fear and promising to “get criminals off the streets,” a sure vote-getter. Federal incentives kicked off a spree of draconian crime bills in state governments.

In 1981, the Washington legislature passed its own stringent Sentencing Reform Act (Act), replacing the goal of rehabilitation with the goal of punishment. Sentence length was to reflect the severity of the act regardless of circumstance. The Act was supposed to make jail time more predictable and sentencing less discriminatory. Parole was abolished. The Act was completed with the adoption of official sentencing guidelines in 1984.

Since then, a series of policy changes have been implemented, including the so-called “Three Strikes” (which mandated life without parole for a third “serious” offense) and “Hard Time for Armed Crime” which added “enhancements” up to 5 years to be served prior to the calculated sentence for convictions involving a gun.

A thorough review

Over the past 40 years, it became clear that the Act had not produced the outcomes anticipated whether in spite of, or because of, the continuous amendments. In 2019, the Legislature established the Washington State Criminal Sentencing Task Force (Task Force) to review state sentencing laws and provide recommendations for the purpose of:(a) Reducing sentencing implementation complexities and errors; (b) Improving the effectiveness of the sentencing system; and (c) Promoting and improving public safety.

The Task Force just submitted its final report to the Governor and the Legislature in January 2023. Their conclusion: the law has become a crazy quilt of contradictions and inconsistencies, with frequent errors and no connection between sentence length and deterrence or public safety. Not a single one of the 7 purposes enumerated in the 1981 law has been realized. Instead, it produces sentences that are neither fair nor predictable—nor even understandable.

Will anything change?

The Task Force’s recommendations, if adopted, would produce sweeping changes in the state’s criminal justice system. Such revisions would reflect the reality that hundreds or thousands of people who pose no threat to society stay in prison for decades. Still, we know from experience that these reports, replete with data, quantitative information, interviews and analysis, are too often undone by one horrifying instance of a parolee who commits murder, or even by catchy slogans like “Hard time for Armed Crime.” So don’t get your hopes up.

Katherine Beckett and Heather Evans. 2020. About Time: How Long and Life Sentences Fuel Mass Incarceration in Washington State. American Civil Liberties Union (ACLU) of Washington. is a team of 25 people working with community members inside and outside of prisons to keep people accountable and show up for the community. organizes “Day of Empathy” in cities across the country.

Read the Executive Summary of the Washington State Criminal Sentencing Task Force.

The Prosecutor decides

On March 10, 2003, Derek Williams walked into a house to meet a drug contact. But instead of paying for the baggie of marijuana—he didn’t have the money—he shot the dealer and ran out of the house.

He was arrested four months later and charged by the Thurston County prosecutor with the following crimes:

  • Attempted murder in the first degree:
    322 months
  • First degree robbery with a firearm:
    171 months
  • Unlawful possession of marijuana while armed: 29 months
  • First degree unlawful possession of a firearm: 116 months

Derek’s “offender score” for prior juvenile dispositions was 11—he had “maxed out.” His score was based on these things: Age 12 (malicious mischief, burglary, burglary, reckless burning), Age 13 (unlawful possession of a firearm), Age 15 (attempted unlawful possession of a stolen firearm). The score increased his sentence.

Once the counts to run concurrently and consecutively were set, at age 18, Derek was sentenced to 700 months, or 58 years and 4 months, in adult prison. There is no parole.

In 2018, Derek was granted the right to a resentencing hearing afforded to people imprisoned for life for a crime committed at 18 or younger by a new interpretation of the 8th Amendment. A Supreme Court ruling established that for juvenile being sentenced, the court was required to consider 1) whether there were mitigating circumstances and 2) whether the youngster was capable of reform.

An investigator dug into Derek’s past to answer the question of mitigating circumstance. He searched out records and interviewed family, social workers and other agents of the state. Derek grew up in South Seattle during the crack epidemic; the picture of physical, emotional and sexual abuse was harrowing. His home was the site of constant drug activity with all the behaviors and chaos that goes with it. Drive-by shootings, domestic violence and suicides were routine in the neighborhood. Home was not a source of food, clothing, comfort or guidance. By the time he was 12, Derek was surviving on the street.

The question of Derek’s ability to reform was equally easy to answer. In 15 years in prison Derek had earned his GED, taken every course and program on offer, become a leader counseling younger inmates. He was transferred early from Clallam Bay to minimum security at Stafford Creek.

Derek’s resentencing hearing lasted most of a day. At the close, the judge did what the investigator said she would do: cut the sentence in half. Derek went back to Stafford Creek in 2018 to serve 11 more years.

[Note: the name and some minor details have been changed for privacy. The information about the sentence, Derek’s background etc. have not been changed. Prisoners can earn a limited amount of “good time” that reduces the number of years they are behind bars. But that too is a complicated calculation.]

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