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They’re all life sentences

What it means to send drug addicts to prison in Washington

Of the 18,000 people in Washington state prisons, maybe as many as 30-35 percent are there because of drug addiction. They could have been arrested for possession of a “controlled substance,” convicted of buying, selling or even sharing drugs; there because they lived in a “drug house,” or forged a prescription, or if they’d written bad checks or stolen to pay for drugs, etc.

An addict is not a criminal

Jail time for these individuals can be surprisingly long. Washington legislators in 2003 created a grid for judges to use in calculating sentences that could reflect the severity of a drug crime. The intent appears to have been to recognize the fact that the offender is an addict, not a criminal; as well as to provide for consistency and fairness in sentencing.

In practice, this intention is routinely ignored by prosecutors. It turns out that it’s the police and the county prosecutor whose charging decisions determine whether a drug offender goes to prison and if so, how much time they’ll spend there. The prosecutor defines the crime and sets the starting point for the judge’s calculation. What’s more, the way the prosecutor defines the crime varies depending on who and where the prosecutor is. As a result, the idea of treating addicts differently from other offenders has failed to affect the idiosyncratic and punitive charging practices indulged in by many prosecutors.

Disparate dispensation of justice

Let’s look at an example of how this might work out in reality here in Washington. Say “Tyler” was arrested for violating the use-of-controlled-substances act. Under state law, as a first-time offender Tyler could be offered a waiver, a short sentence, referral to treatment…or sentenced to five years in jail. It’s entirely in the prosecutor’s discretion as to how many charges Tyler will face. In some counties she would be offered the waiver or diversion to a treatment program; in others, she would be charged with several felony counts: for example, possession of a controlled substance, delivery of a controlled substance, maintaining a drug house, among other. If a minor was present, she could face a “minor enhancement” that would add additional time to her eventual sentence.

If, while Tyler awaits trial, she relapses, she will find herself vulnerable to additional police and prosecutorial efforts. She quite likely could be the target of a “controlled buy.” A controlled buy is where the police give someone who’s already been arrested and charged the opportunity for a lesser sentence if they participate in monitored drug transactions with others of their acquaintance—who then are arrested and charged in their turn. The incentive for police and prosecutor to pursue these strategies increases during election years: ramping up arrest figures can solidify your “get tough on crime” identity.

At trial, the judge will put the prosecutor’s charges into a “sentencing calculator” that scores the offender’s behavior, locates a level of severity based on the charges, and calculates a sentence. If Elizabeth was the target of a controlled buy, she is no longer a first offender though there has been no real change in her situation. In a seemingly contradictory afterthought, the state statute says that a second offense can double the otherwise calculated sentence.

Tyler’s sentence will thus vary according to the policies of the prosecuting attorney in the county where she was arrested. It could range from a year or two, to 5, 6, or more years. Women imprisoned on drug charges spend those years at Mission Creek in Belfair, WA., or in Purdy outside of Shelton. Mission Creek, with a capacity of 300, and Purdy with 1000, are the two women’s prisons in our state. The proportion of women incarcerated there on drug-related charges is probably much higher than the statewide figure.

Time reduced, time added

In state prison, a 25 percent ”good time” reduction in sentence is available for those who avoid infractions. But even if Elizabeth gets the “good time” reduction, she will continue under the jurisdiction of the criminal justice system even after her release. Her time under “community custody” is determined by the classification of her charges and a complex scoring system that confounds understanding. (Prison officials may also play a role in deciding the length of this period.) Under community custody, Tyler’s living situation has to be approved by her probation officer and she must produce urine for analysis weekly or monthly for the duration. Some years after she leaves prison, Elizabeth will finally be released.

But her sentence will not be over. We justify our punitive system with a shrug: “You did the crime, you do the time.” But that’s now how it works—a felony conviction with its many consequences follows you. It’s not 5 years or 6 or 7 years. It’s a life sentence.

Bethany Weidner lives in Olympia and writes often for Works in Progress

 

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