Three Strikes, You're Out: A Review
R. David LaCourse, Jr., January, 1997
In 1993, Washington was the first state in the nation to pass a no-nonsense Three Strikes policy. Since then 23 other states and the federal government have enacted some form of Three Strikes, You're Out laws to deal with repeat serious criminals. The Washington State Supreme Court recently upheld this landmark legislation in three rulings on three companion cases.
The research which sparked the national Three Strikes, You're Out movement began in Washington State at the WASHINGTON INSTITUTE FOR POLICY STUDIES as a summer research project in 1991. The project's goal was to review current sentencing practices for violent, career criminals and make recommendations as needed.
The research team found the need for a new policy that was clear and understandable: Anyone convicted of a third serious felony shall be sentenced to life in prison without the possibility of parole. No furloughs, parole or time off for good behavior. No more excuses. The only way out of prison alive is if the offender can convince the Governor to grant a pardon or clemency. The proposal recommended that this not occur until the offender is both over 60-years-old and deemed no longer a threat to society.
Sex offenders, regardless of age, are held to the "utmost scrutiny" under this provision. In addition, the Governor's office must provide semi-annual reports for a minimum of ten years on the progress and activities of any individual released from a life-without-parole sentence.
When police and crime victims saw this proposal, they immediately adopted it as their own. It became an initiative in the summer of 1992. Although the necessary number of signatures was narrowly missed that year, the Three Strikes proposal was back in 1993 as both a State House Bill and as an initiative. When the legislature failed to pass the measure, the initiative drive gathered the requisite number of signatures. More than 76% of the voters approved the measure in November of 1993.
To qualify under Washington's Three Strikes law, a criminal must be convicted as an adult on three separate occasions for serious felony crimes, including rape, robbery, child molestation, serious assault, manslaughter or murder. Crime sprees, regardless of the number of offenses, only count as one strike. As an additional safeguard for borderline cases, any felony listed as a strike, but which is not classified as either a class A felony or a sex offense has a 'wash-out' provision of either 5 or 10 years of conviction-free living in the community. This gives some potential three-strikers the opportunity to remove a prior strike from their record based on their law-abiding conduct.
Supporters of Three Strikes anticipated three main benefits from adopting the law:
- Justice would be served for crime victims by permanently removing violent, career criminals from the streets and communities of Washington State
- Crimes would be prevented since criminals would only get three chances
- Some criminals would leave the state, retire, or change their criminal behavior
Critics claimed that the new law would be both ineffective and too expensive for the state. The law has been in effect for three years as of December 2, 1996. An update is in order to see if the law has met the goals set by its creators.
Changed Law for the Better
Washington currently uses a determinate sentencing system that involves a sentencing grid. The more serious the crime is, according to the grid, the higher the expected sentencing range is set. In addition, prior convictions increase the sentence in proportion to both the seriousness of the priors and the type of current felony conviction.
It is a complex system designed to remove personal biases from the sentencing process and to make sure that everyone convicted of similar crimes with similar criminal histories receives comparable sentences. Although the system is more even-handed than the old indeterminate sentencing system which had much broader judicial latitude and parole, there was a major flaw.
Research found the state's sentencing grid woefully inadequate in terms of both public safety and justice when dealing with violent, career criminals. Before Three Strikes became law, recommended prison terms for three-time offenders were:
- First degree child molester with two previous sex offenses: 9 years, 6 months
- First degree robber with two previous violent offenses: 5 years
- First degree rapist with two previous violent sex offenses: 14 years, 2 months
Under Three Strikes, these offenders are now sentenced to life without the possibility of parole.
After Three Strikes passed, initiative supporters expected not only to sentence people with three separate convictions for serious crimes, but also four-time and even five-time violent criminals. The following 'four-and five-strike' crimes would have been prevented if Washington State had enacted Three Strikes sooner.
Michael Elton Johnson was one of the first people sentenced under Three Strikes. Strike One was a 1976 second-degree rape in Montana, in which Johnson dragged a 14-year-old girl into the woods and raped her. Within a few weeks of his release in 1980, Johnson committed Strike Two for an attempted second-degree rape of a 15-year-old girl in the Wenatchee area during a burglary.
His Strike Three for second-degree assault was perpetrated just a month after his release from prison in 1991. During this attack, Johnson cut his wife's face and neck, rammed a 9-inch-bladed knife into her mouth, pointed a pellet gun at her head and told her that he "would kill her anytime" he wished. At this time, Three Strikes was only a concept, so instead of receiving a life-without-parole sentence for the brutal assault, he received only a two-year sentence.
Immediately after his release, Michael Johnson returned to preying on women and children. He was arrested for domestic violence and malicious mischief in Snohomish County for again beating his wife, who finally divorced him. Shortly after that, the Department of Corrections was informed that Johnson had been caught following a 17-year-old girl into a ferry-boat restroom in Snohomish County. Johnson subsequently moved to Oregon briefly, where he raped his own sister and threatened her life before moving back to eastern Washington. He was also charged with fourth-degree assault for putting a woman in a headlock after going into a tavern with her. She escaped unharmed, but was terrified by the experience.
Johnson then befriended a Springdale woman who lived with her 16-year-old daughter. On Christmas Day, 1993, he committed Strike Four by raping the daughter and kidnapping both her and her mother and taking them to a neighboring county. The next day he raped the daughter again before releasing them both. He pleaded guilty to two counts of rape and one count of kidnapping. The other kidnapping charge, the rape of his sister, and the non-Strike assaults were all dropped in exchange for his guilty plea.
In 1994 Michael Elton Johnson was sentenced to life without parole under Three Strikes. Michael Johnson's last three rapes, two kidnappings and four other assaults would have been prevented if Three Strikes had been enacted just three years earlier.
Charles Ben Finch has always been a violent predator. Strike One occurred in 1970 when he was convicted of assault and battery with a deadly weapon in Oklahoma. He was also convicted of two non-Strike burglaries that same year. He was sentenced to three years but was paroled in 1971.
Strike Two was for a first-degree manslaughter conviction in 1976, also in Oklahoma. This time he was sentenced to four years in prison. Again, he did not serve his complete sentence.
In June of 1979, Finch arrived in Seattle, where he promptly committed Strike Three for the first-degree rape of an elderly widow during a burglary.
Angry and intoxicated, Finch had broken into a home-furnishings store and started breaking lamps, cabinets, tables and other items. The widow, who lived above the store, investigated the noise and was dragged into an elevator where Finch raped her at least twice.
Had Three Strikes been law at that time, his violent crime sprees would have ended then. Unfortunately, Finch was released on parole just nine years later. The consequences of his release proved deadly.
In the summer of 1994, Finch committed Strike Four when he walked into a mobile home occupied by his estranged wife and fatally shot a visiting blind man in the head. He then threatened his wife and her 81-year-old mother with the murder weapon.
Charles Finch eventually called the police and opened fire when they responded to his 911 call. A Snohomish County Deputy Sheriff was killed by one of the six shots fired by Finch.
Finch has now been sentenced to death for those cold, calculated murders, but they never would have happened if Three Strikes had been enacted sooner.
Martin T. Shandel is actually a five-striker specializing in rape. Strike One was for sexually assaulting a 14-year-old girl in 1967. He was paroled in 1969.
Shandel's Strike Two was for raping a 13-year-old girl who was walking home along a country road in 1971. He stopped his car, forced her into a wooded area and raped her. Just an hour before the attack, he had grabbed two younger girls and attempted, but failed, to force them into his car.
His Strike Three was for second-degree assault with a knife. He forced a woman off the road, brandished a knife and broke out her car window. He then grabbed her arm but was scared off by a witness.
His predatory behavior would have been stopped at this point by Three Strikes, had it been in effect. It wasn't, and Shandel was paroled yet again just six years later.
His Strike Four was for raping a 37-year-old woman whose home he was visiting in 1985. He attacked her after she asked him to leave. This last rape occurred just three months after his most recent release.
This victim sued the Washington State Department of Corrections for failing to adequately supervise Shandel. She was awarded $204,000 by a King County Superior Court jury in 1992. The state appealed the decision and the State Court of Appeals overturned the award on a technicality. The State Supreme Court then reinstated the monetary award and the victim finally has received it.
Martin Shandel was released yet again in 1994. Less than a year later, he committed Strike Five for the second-degree rape of his sister-in-law at the Woodinville home he shared with his wife in 1995. His reign of terror ended when he was convicted under the new Three Strikes law and sentenced to life without parole.
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 committing robbery and assault over and over again. Far too many of them also continue violence beyond three convictions.
Paul and Stonney Rivers fit this description. Their Strike One was for attempted second-degree robbery when Paul, Stonney and another brother, Rodney Rivers, confronted and detained a man in 1985. Stonney slugged the victim while Paul told Rodney to take his wallet. Paul's sentence was only 5 months, Stonney's was 7 months.
Paul's and Stonney's Strike Two was for second-degree robbery in 1986. Paul, Stonney, and a fourth brother, Larry Rivers, robbed a man working in an adult movie theater. The victim was hit in the face as he tried to call 911. Both Paul and Stonney were sentenced to 17 months.
Paul and Stonney earned Strike Three for second-degree assault in 1989. They pulled a man from his car, kicked him about the body and smashed his head into a brick wall. The victim was taken to Harborview Medical Center for head injuries. The victim also had bruises all over his body and his eyes were swollen shut. Paul was sentenced to 50 months while Stonney was only sentenced to 15 months. This should have been their last violent crime but the criminal justice system failed: Three Strikes was not yet in effect.
Paul was the first to Strike Out. His Strike Four was for second-degree robbery of an espresso stand in late 1993. During the robbery, Paul claimed to have a gun. When followed by the victim, Rivers said, "I'll blow your head off. It's not worth your life." Paul was also suspected in other crimes but was convicted only of this robbery. Under Three Strikes, Paul Rivers was sentenced to life without the possibility of parole.
Upon hearing his sentence, Rivers wept, just like several other criminals sentenced under Three Strikes have done. This street hood with an adult record of six felonies and 9 misdemeanors suddenly feared the criminal-justice system. He recently lost his appeal in the Washington State Supreme Court.
But Paul Rivers was only the first of four family members sentenced under Three Strikes. Stonney River's Fourth Strike was for first-degree robbery. He and two accomplices, Teresa Fuller and Kevin Jones, lured a man into a hotel room and attacked him. Jones punched him and pinned him to the bed. Stonney then smashed a beer bottle over the victim's head. Jones then choked the victim before the defendants fled. The victim tried to stop them in the parking lot, but he was knocked over the car's hood as the defendants drove away. The victim had numerous cuts and several teeth knocked out.
Michael Bridges and David Conyers are Paul Rivers' two other relatives who have struck out. This single extended family accounts for 4.8% of all criminals convicted under Washington's Three Strikes law as of December 20, 1996. Hopefully, Larry and Rodney Rivers have learned their lesson and will not strike out.
Dwight Anthony Griffin is another persistent street criminal. Strike One was for 3 robberies in 1975 of a tavern, a hair salon and a service station. In each case, Griffin told his victims that he had a gun, but did not display it. Instead, he kept one hand in his coat where it appeared that his hand was on a weapon. Griffin was also suspected in two other robberies but was not convicted for them.
His Strike Two was for second-degree robbery in 1980 of another gas station.
Griffin's Strike Three was for second-degree robbery of a knitting shop in 1986. But he didn't stop there.
Strike Four was in 1989 for 4 robberies in the second degree: a donut shop, a service station, a hair salon and a food company. In each robbery, Griffin claimed to have a gun, and in at least one, he threatened to "blow away" a victim.
Strike Five was for attempted robbery in the second degree in 1994. He jumped a woman who was walking to her bank carrying a cash deposit bag. When she refused to give up the money, Griffin knocked her to the ground and began striking her and beating her head into the ground.
Dwight Griffin's crime sprees ended with this violent act because he was sentenced to life without parole under Three Strikes.
In all, these six violent criminals committed 5 rapes, 2 murders, 2 kidnappings, 6 robberies and 1 attempted robbery that would have been prevented if Three Strikes had been law in Washington State beginning in 1979.
The pain, injury and fear that these criminals inflicted upon their victims and their victims' families is immeasurable. And this total doesn't include the non-Strike felonies and misdemeanor crimes committed by these offenders. In addition, there is no way to know how many crimes this group committed that remain unsolved or were not even reported to the police.
These six violent, career criminals are not the only four- and five-strike felons who have been sentenced under Washington's Three Strikes law, but they are a good representation of the kinds of criminals that the law is capturing. As a result of Three Strikes, Washington State will see fewer of these four- and five-strike offenders in the future.
Violent Crime Is Down
Washington's Three Strikes law became enforceable on December 2, 1993, one month after voters passed the initiative into law. Appendix I illustrates what has happened to our crime levels since then, using 1993 as a base year.
From 1993-1995, violent crime dropped 4.8%, in spite of the fact that property crimes increased 8.2% during the same time period. When adjusted for Washington's population growth, a 3.6% increase, the violent crime rate plummeted 8.1% while property crimes rose 4.4%.
Putting these figures another way, there were 256 fewer rapes, 171 fewer robberies and 845 fewer assaults in 1995 than in 1993. While it is too early to prove cause and effect - that Three Strikes legislation reduced violent crime - the recent crime trend is promising. The fact that violent crime decreased, especially in the face of a general crime increase for all other categories, is very encouraging.
In addition, anecdotal evidence clearly indicates that at least some criminals have altered their behavior because of Washington's law.
Criminals Have Changed Their Behavior
Many police officers, corrections officers and others, both inside and outside the criminal justice system, have noted that criminals fear Three Strikes. These people have also found that some criminals have modified their behavior. For once, felons are worried about the criminal justice system and that has proven to be a deterrent factor.
Some of the more extensive records have been kept by Detective Bob Shilling, who is in charge of the sex-offender detail of the special assault unit for the Seattle Police Department.
Between the time when Three Strikes first made the ballot and its election-day victory, Detective Shilling recorded that 17 two-strike (or worse) sex offenders fled to other states from Seattle alone.
In addition, more than 42 Seattle sex offenders called with questions and concerns about which crimes were listed as strikes and whether their priors counted as strikes.
In the week following the passage of Three Strikes, Detective Shilling met with three sex offenders, all two-strikers. The first sex offender complained that it wasn't fair that he already had two strikes against him. The other two sex offenders sought treatment for the first time in their lives and wanted Detective Shilling's help in finding a program. Both stated their fear of a life-without-parole sentence under Three Strikes. More important, neither has re-offended to date.
Detective Shilling is also invited quarterly to speak to sex offenders held in the Twin Rivers Correctional Center to discuss sex-offender registration and community notification. However, during his first several prison visits after Three Strikes passed, Detective Shilling found that most inmate questions were about Three Strikes. These questions have now almost disappeared.
In a recent telephone interview, Detective Shilling reported that, "I get very few questions about Three Strikes anymore, because the inmates are now as aware of the law as I am." Furthermore, he has been told repeatedly by career criminals that "Three Strikes made me realize it's time to clean up my act."
Other police officers have made similar observations. Seattle Police Sergeant Ed Striedinger overheard six King County inmates debating Three Strikes after they were brought in for a line-up. They argued over which crimes were included in the law and showed concern over a potential life sentence. One even vowed to leave the state.
In addition, a reporter reviewing Three Strikes for The Seattle Times found that a suspected forger informed police that he switched from robbery to passing bad checks because he already had two strikes on his record and forgery was not a strike.
Other people who work with criminals have noticed similar changes in behavior. Several Corrections Officers and Prison Clergymen have told Three Strikes leaders that inmates fear a life-without-parole sentence. They don't mind visiting prison on a regular basis, but they don't want to live there permanently.
Even a defense attorney admitted something similar in the same The Seattle Times article. He confessed that a former client was interested in which crimes were considered strikes so he would only commit non-Strike crimes.
Washington State Representative Ida Ballasiotes (R-41st), whose daughter was murdered by a repeat predator, has toured the Twin Rivers Correctional Center and spoken with many sex offenders. She found that almost all the inmates knew about Three Strikes and hated it. She also saw several Department of Corrections postings about the law inside the facility.
Within two months of passage of Three Strikes, more than a dozen letters from inmates in four prisons around Washington State arrived at the initiative headquarters. One Washington inmate stated in his letter, "There are many concerned offenders that would appreciate the truth and facts" on Three Strikes. This inmate was willing to pay money for information on Three Strikes.
The campaign also received letters from inmates from other states around the nation, including California, Florida, Georgia, Indiana, Pennsylvania and Utah. They had read about Washington State's new law in the Prison Legal News, a copy of which was sent to their respective prisons.
Awareness of Washington's Three Strikes law by criminals in other states has reduced the number of them who choose to move here. A Seattle television station recently ran an exposé about how Washington State imported about three criminals for every one exported to another state. The primary reason for this influx was the good Northwest economy. The news reporter covering the story noted that some criminals requesting a move to Washington also requested information on Three Strikes. Once informed, several withdrew their applications.
The concern shown by criminals in these examples may well be why Three Strikes is ensnaring fewer felons than anticipated by initiative backers, the state, and initiative opponents: The law has a deterrent effect.
Three Strikes More Affordable Than Expected
Washington's Three Strikes law is narrowly focused - it affects only violent, career criminals who show no sign of stopping their violent ways. Research showed that only a few career criminals could be covered under the proposal since only about 12% of all state felonies and felony circumstances were included as strikes. Both the Washington Institute and the state's own Sentencing Guidelines Commission (SGC) estimated that out of more than 16,500 felony sentences handed down yearly, only 60-75 career criminals would qualify under Washington's Three Strikes law.
The SGC also did a "worst case" estimate on the prison-bed impact of Three Strikes. Since violent career criminals were already sentenced to prison terms, most for between 5-20 years before Three Strikes, the effect on prison population would not occur until 5-20 years later when felons are not released as scheduled because of Three Strikes.
After 20 years, the state expected a total increase of 885 inmates, or a 9% increase over 1992 levels. This estimate will have to be dramatically lowered since only 83 criminals have been sentenced under the law after just over three years (December 2, 1993-December 20, 1996). This is about one-third of the expected total.
Many factors contribute to such a huge difference in the actual-versus-expected figures. One of these reasons, as indicated above, is that there has been a deterrent factor on the targeted group of violent, career criminals. This deterrent effect should increase in the future. Not only are first- and second-time inmates meeting career criminals who have been sentenced to life without parole under the law, but prosecutors and judges have started warning strike-one and strike-two offenders as to what sentence occurs after the third conviction for such a crime.
Of the 83 three-strikers, 45% were robbers, 20% were sex offenders and 13% were serious assaulters (for their last conviction). An additional 10% were murderers, while 6% were kidnappers, 5% were armed/violent burglars, and an arsonist accounted for 1%. These numbers are similar to the state's estimates with the exception of robbers and sex offenders. The initial estimates predicted 34% for robbers and 26% for sex offenders.
This unexpectedly high percentage of three-strikers sentenced to life without parole for robbery is an encouraging sign that prosecutors are not shying away from enforcing the law as a mandatory sentence. Unarmed robbery was the one crime that initiative backers were concerned that prosecutors might plead down to a non-Strike crime to avoid a trial and guarantee a conviction. The fact that 24% of all three-strikers were last convicted of either attempted or completed robbery in the second degree provides overwhelming evidence that this is not true. Therefore, the smaller-than-expected number of three-strikers cannot be dismissed as due to any lack of enforcement in Washington State.
Aside from much lower numbers of three-strikers, Washington's Three Strikes law has worked as intended. The law is incarcerating violent, career criminals who are unlikely to change their behavior. This is evidenced by the fact that for the 83 three-strikers sentenced to date, their average age is 37 years old. An overhaul of the law would be damaging. It needs only a few minor provisions to make it more effective.
Fine-Tuning the Law
Three Strikes has been working well in Washington. Four recommendations would make the law even more productive.
- First, add an additional directive to judges and prosecutors about the intent of the law as a mandatory sentence.
- Second, update the definition of offender to include juveniles automatically charged as adults.
- Third, clarify that Three Strikes supersedes prior maximum sentencing laws.
- Fourth, review the list of class A crimes covered under the initiative.
RECOMMENDATION 1. Add a directive to prosecutors and judges stating that once a career criminal is convicted of a third strike, the sentence is automatically life without parole. Include a section to emphasize that Three Strikes is different from the formerly used Habitual Criminal statute in that there is not a separate charge for being a habitual criminal.
Since the passage of Three Strikes, defense attorneys have argued that the law's authors either "did not intend" or "could not" take away all discretion from judges and prosecutors in the sentencing phase after a Third Strike conviction. This is not true: The Washington State Supreme Court upheld this portion of the law as written.
Under existing state law, prosecutors still can reduce a criminal charge against a defendant from a Strike crime down to a non-Strike crime. However, once a person is convicted for a Third Strike, the life sentence is intended to be automatic. In fact, the law reads that any three-striker "shall be sentenced to a term of total confinement for life without the possibility of parole."
There are only two instances to date where a judge and/or a prosecutor both publicly and purposefully violated both the intent and language of Three Strikes. The first case occurred in Cowlitz County, where Judge James Warme ignored the prosecutor and refused to sentence a Three-Striker to life without parole for rape. This ruling is currently in appeal.
In the second case, in Franklin County, outgoing Prosecutor Dennis DeFelice claimed that a career criminal could be convicted of his fourth strike while not being sentenced to life without the possibility of parole. Judge Dennis Yule accepted the prosecutor's incorrect assumption.
These two cases are in clear violation of the law and should not be repeated.
Another, less critical, issue is that prosecutors had implemented Three Strikes differently around the state until recently. Most counties incorporated Three Strikes as just another addition to Washington State's current sentencing system. However, several counties, including King and Yakima, were taking a more conservative approach to enforcing Three Strikes like the previous Habitual Criminal statute, mainly because of the parroting of the language of the old law.
This approach required extra steps involving more protections for defendants and more burdens for prosecutors. Now that the Washington State Supreme Court has upheld Three Strikes as part of the current sentencing system, all counties are similarly implementing the law.
The proposed new section would reiterate the intent of initiative framers, codify the court's ruling, and prevent future misunderstandings.
RECOMMENDATION 2. Update the definition of offender in the Sentencing Reform Act to include the changes made to the Revised Code of Washington (RCW) 13.04.030(1)(e)(iv) in 1994.
Under Washington's Three Strikes law, a criminal receives a strike when convicted of a serious felony in adult court as an "offender" as defined by RCW 9.94A.030. This definition includes juvenile offenders transferred into adult court under RCW 13.40.110.
In 1994, the legislature created a new system for automatically placing the very worst 16- and 17-year-old juvenile criminals into adult court under RCW 13.04.030(1)(e)(iv). Unfortunately, the legislature did not, or could not, include this new law in the definition of "offender."
This inconsistency makes it ambiguous as to whether juveniles convicted as adults under the new law actually have a strike on their record. The above recommendation would clarify the matter before the courts are required to decide.
RECOMMENDATION 3. Clarify that the life-without-parole sentence under Three Strikes supersedes previous sentencing maximums under RCW 9A.20.021, RCW 9.92.010 and RCW 9.94A.035.
Before Three Strikes, Washington State law listed crimes by classification, a maximum sentence, or both. Some felonies covered under Three Strikes had previous maximum sentences of 25, 20, 10 or 5 years.
Three Strikes supersedes these previous maximum sentences. The law requires that a persistent offender shall be sentenced to life without parole, "notwithstanding the maximum sentence under any other law." This language appeared clear to initiative authors.
Although the Washington State Supreme Court upheld this portion of the law, other courts may be asked to rule on the issue later and may decide differently. Therefore, Three Strikes should be amended to specifically override the statutes listed above.
RECOMMENDATION 4. The legislature should review all class A felonies to decide if each crime warrants a maximum sentence of at least 20 years and should therefore count as a strike.
When deciding which crimes to include in Washington's Three Strikes proposal, the definition of each crime was carefully read. In addition, the current law categorization was examined. The focus was on crimes where violence against a person was either used or threatened. In addition, all crimes which already carried a maximum sentence of at least 20 years were included.
Initiative framers were concerned that Three Strikes would be opened up to constitutional challenges if all class A felonies were not included. Not only does current state law list every class A felony as a "violent offense," but current law also requires that convictions for class A crimes are made a permanent part of a person's criminal history.
Several of the crimes classified as class A felonies were not necessarily what was envisioned as strikes. In particular, there are concerns about repeat unarmed drug dealers and those in possession of incendiary and explosive devices.
The issue of repeat drug dealers was resolved this past legislative session. Unarmed drug dealing has been officially listed as a class B offense, even though subsequent convictions can bring a maximum sentence of 20 years. This reclassification removed it as a strike. Armed drug dealers and those who peddle drugs to children are still covered under Three Strikes.
The crime of possession of incendiary devices (RCW 9.40.120) and explosive devices (RCW 70.74.180) includes explosives and other substances capable of destruction. The problem is that there is no requirement to show intent to harm or injure an individual. Furthermore, there is no distinction for explosive power or number of devices, nor is there a difference between possession and possession with intent to distribute.
This is troubling since some young adults have been known to build home-made pipe bombs or buy extra powerful, illegal fireworks. Possession does not automatically prove that they intend to threaten, maim or kill.
Listing possession as a class A felony is also inconsistent with how current state law classifies related crimes. Planting a bomb where there is no danger to any person is only a class C felony (RCW 70.74.270(2)). Even if the bomb is detonated, it is still only a class C felony if there is no danger to any person (RCW 70.74.280(2)). It is difficult to understand the logic behind listing mere possession as a class A felony while the placement or detonation of the same explosive in a non-threatening location is only a class C felony with a maximum sentence of only 5 years.
Furthermore, abandonment of explosives (RCW 70.74.295) and unlawful access to explosives (RCW 70.74.160) are only gross misdemeanors with a maximum sentence of just one year. In addition, injuries and deaths, or attempts to commit these crimes, are already covered under assault, manslaughter and murder statutes.
These discrepancies could be eliminated by separating the crimes of possession-of-incendiary-devices and possession-of-explosives into two categories. First degree should be for possession with intent to cause bodily harm or detonation in a location likely to cause human injury.
Second degree should be for possession and would be reclassified as a class C felony with a maximum sentence of 5 years. This reclassification would automatically eliminate mere possession as a strike unless included as a "most serious offense" under RCW 9.94A.030(23).
Three Strikes Today
At least 24 states have enacted habitual-criminal statutes since 1993, starting with the passage of Washington's Three Strikes law. If the number of convictions is any indication, most states implemented these laws with either a too-narrow list of qualifying crimes, too many loopholes, or both.
Two recent studies found that six states have yet to obtain a conviction under their habitual-criminal laws and five other states have three or fewer convictions. On the other hand, California leads the nation in three-strike convictions with 2,805. Washington State is in second place with 83 convictions.
The federal Three Strikes law, passed in the Omnibus 1994 Crime Bill, has 19 convictions as of July 31, 1996 with another 13 cases pending, according to the Department of Justice. Reasons for the small number of convictions include the narrow list of crimes counted as "strikes" under federal law and the fact that most violent crimes fall under state jurisdictions.
Dissimilarities between these habitual-criminal statutes make evaluating three-strikes laws as a whole difficult, especially since most of these laws are less than two years old. It is best to examine each state's law individually, just as this study focused on Washington's Three Strikes law.
As expected, the constitutionality of three-strikes laws is now being challenged in courtrooms all across the country. As distinct as each of these laws are from each other, so have been the various court interpretations of them.
Washington State's Supreme Court upheld its law as constitutional on August 9, 1996. The court rejected claims that Three Strikes was unconstitutionally vague, a violation of equal protection under the law, and cruel and unusual punishment. These charges were brought by attorneys for three career robbers and were soundly rejected in three rulings -- one at 8 to 1 and two at 6 to 3 - in favor of upholding Washington's Three Strikes.
Other states' three-strikes or habitual-criminal statutes have also faced challenges in the courts. Wisconsin's Court of Appeals recently upheld that state's law while California's State Supreme Court weakened their Three Strikes law by ruling that sentencing judges could reject "mandatory" 25-years-to-life sentences.
Many other states are examining whether to modify or adopt a habitual-criminal statute of their own. A comparison of the Washington state model to both the California experiment and old-style habitual-criminal statutes can prove a valuable guide to these states.
Washington Versus California
There are two major differences between Washington's and California's versions of Three Strikes: the scope of included crimes, and the number of loopholes within the statutes. In each case, Washington's law presents a more workable model than California's.
The number of felonies covered is the biggest difference between the two statutes. In Washington, only 12% of all felonies and felony circumstances are included in the law. In California, all felonies are included for the third strike. The California penalty is either 25-years-to-life or triple the recommended sentence, whichever is longer.
Already, California has become famous for sentencing many felons to 25-years-to-life for minor crimes like theft of food, marijuana possession and auto theft. It is estimated that as many as 75% of the people sentenced under California's Three Strikes are not convicted of crimes legally classified as either serious or violent as their last strike.
This has created not only a huge fiscal burden for their courts and prison system, but may eventually force prosecutors into more plea bargaining or even foregoing prosecution in order to get rid of the massive backlog of cases. This situation has been compounded by a Two Strike provision which doubled the penalty for a second conviction.
As of December 31, 1996, there were 2,805 California criminals sentenced under Three Strikes and 23,183 sentenced under Two Strikes.
In contrast to California's law, 81 of 83 criminals sentenced under Washington's Three Strikes, or 97.6%, were convicted of a felony listed as a "violent offense" under state law as their last strike. Of the remaining two, one was convicted of attempting to commit a violent offense, robbery in the second degree. The other three-striker was convicted of a serious sex crime -- child molestation in the second degree. This crime involves sexual contact with a child between the ages of twelve to fourteen when the perpetrator is more than three years older than the victim.
All 83 people convicted under Washington's Three Strikes law have at least one prior conviction for a violent offense or an attempt to commit a violent offense. At least 76 of them, or 91.6%, have two or more separate prior convictions for completed or attempted violent offenses. Six out of the other seven three-strike criminals were previously convicted of sex offenses not listed as violent by state law. The last career criminal was previously convicted of promoting prostitution in the first degree, a serious felony involving either "compelling a person by threat or force" into prostitution or using minors for prostitution.
The second major difference between the Washington and California law is the number of loopholes in California's law versus the tight language in Washington's. Under the California statute, "The prosecuting attorney may move to dismiss or strike a prior felony conviction" in the interest of justice. This loophole, which sounds benign, can also lead to a plea agreement which suppresses a prior in order to get a conviction.
But this loophole has already been expanded by the California courts. Now judges can ignore "mandatory" 25-years-to-life sentences because, historically, judges have the same discretion as prosecutors under California's criminal justice system. A change in California's State Constitution is required to remove this new judicial loophole. Such efforts are currently stalled in the state legislature.
Under Washington's law, neither the judge nor the prosecutor has the discretion to suppress prior serious convictions to avoid a life-without-parole sentence. The law means what it says and once a criminal is convicted of a serious felony on three separate occasions, the life-without-parole sentence is mandatory. The only exception is if the Governor signs a pardon or clemency.
Other states may choose to follow either Washington's or California's example, but the Washington model is more cost-efficient, more narrowly targets those criminals committing serious felonies over and over again, and is free of major loopholes. Since most laws are expanded in scope over time, it may be sound policy to start with a tightly written Three Strikes law, and expand it when politically, constitutionally and financially feasible. For example, Washington just passed Two Strikes for some sex offenders.
Washington's Three Strikes Law Versus Earlier Habitual-Criminal Statutes
Most states have carried some form of career-criminal statute or habitual-offender law at one time or another. Many of these laws were very broad, riddled with loopholes, and seldom utilized. Some states still have these older statutes on the books, and at least one -- Rhode Island -- reactivated their old habitual-criminal law in 1994.
Washington State was no exception. Washington's old Habitual Criminal statute was broken into two provisions. The first stated that, "Every person convicted" of a felony with one prior felony or two prior misdemeanors or gross misdemeanors involving fraud shall be "adjudged to be an habitual criminal and shall be punished by imprisonment in the state penitentiary for not less than ten years."
The second provision required that, "Every person convicted" of either a third felony or fourth misdemeanor or gross misdemeanor involving fraud shall be sentenced to "life."
Over the years, this extremely broad statute was narrowed by the courts as to what crimes the law could include. In addition, the criminal-justice system developed many loopholes which were not generally known. The old Habitual Criminal statute could be overridden by the prosecutor, the judge or the parole board.
Like most of the old-style habitual-criminal statutes around the nation, Washington's law was a separate charge. Not only was a criminal convicted of a felony such as rape or robbery, but he or she was also convicted of being a habitual criminal. This involved a "mini-trial" in order to prove to the court that each criminal was indeed an habitual one.
Prosecutors found this extra step to be not only a burden, but often a waste of time as well because of other loopholes within the system. Therefore, the separate charge of being a habitual criminal was often pled away in order to get a conviction for the latest crime.
The second major loophole was the judge. Under Washington's old indeterminate-sentencing system, a judge could actually suspend a life sentence for a habitual criminal and impose a lesser sentence.
The third major loophole was the parole board. Even if the prosecutor went forward with the separate habitual-criminal charge and the judge was convinced that the criminal deserved a life sentence, the parole board could still set aside the life sentence and grant parole.
These three huge loopholes, combined with less reliable criminal records than we have today, made the old Habitual Criminal statute nearly worthless. What Washington and many other states ended up with were career-criminal laws which were seldom used and rarely feared. That is why Washington, and a number of other states, repealed their unworkable habitual-criminal statutes.
Washington's Three Strikes law made life sentences more certain for violent, career criminals by removing many of the problems with the old-style habitual-criminal laws. The three main improvements Three Strikes incorporated are:
Three Strikes began with a reasonable scope of crimes, preventing the courts from throwing out portions of the law.
Three Strikes is a conduct-based law. If a criminal is convicted of a strike on a third separate occasion, the conviction alone invokes the life-without-parole sentence. There is not a separate charge as a habitual criminal that can be pled away by a prosecutor.
Three Strikes dictates an automatic life-without-parole sentence. A judge cannot suspend it and there is no faceless, unelected parole board to release a criminal from the sentence. Only the Governor can grant a pardon or clemency.
A good three-strikes policy, like Washington's, takes the good intentions behind the old laws and shapes them into sound public policy for today's society.
Summary: The Future of the Three Strikes Movement
So far, Three Strikes has met with varied success around the nation. In Washington State, it has proven to prevent fourth- and fifth-strike violent crimes, to deter some criminals, and to cost less than expected. For this reason, Washington's law is unlikely to be changed dramatically in the near future unless it is ruled unconstitutional by a federal court.
Unlike Washington, several other states may need the courage to rework their career-criminal statutes. Some states have cast their laws too broadly to be fiscally feasible. Other states have enacted laws too narrow or that have too many loopholes and escape clauses to be effective.
The overly broad California statute has generated a great deal of media attention for some of the career criminals who have received 25-years-to-life sentences for minor, non-violent offenses. In addition, the law is now burdened with another loophole since sentencing judges may ignore mandatory minimums set down by the legislature. The high-profile struggles seen in California have probably slowed the adoption of three-strikes laws around the nation.
In other states, the list of three-strike crimes is so small that almost nobody qualifies under the law. To be a deterrent, the average violent criminal needs to be able to see him- or herself receiving a life-without-parole sentence by merely continuing present behavior on three separate occasions.
In addition, states should be very careful not to pass a Three Strikes law that will be viewed as a 'paper tiger' by either the general public or the criminal population. A lengthy sentence that can be pled away by a prosecutor, suspended by a judge, or revoked by a parole board will fool no one - certainly not criminals - and accomplish nothing. Three-strikes laws need real teeth to be effective.
Washington State avoided these traps by rejecting efforts by both the Governor and some state legislators to undermine the initial initiative proposal. Governor Mike Lowry's counter-proposal to the initiative backers in 1993 was for a law that would not have changed a single sentence in 1992 and would affect only one or two criminals per year on average. Some lawmakers, including then-State Representative Gary Locke (now Governor) and former State Representative Betty Sue Morris (D-18), supported a "tougher" proposal which would affect three or four criminals per year on average.
When the Omnibus Crime Package with the weakened Three Strikes provision failed to pass in the 1993 legislature, the initiative passed easily in November. State Senator Betty Sue Morris stated publicly that she voted for the initiative, while Governor Lowry and Representative Locke publicly rejected the initiative.
Three Strikes will remain popular with voters and unpopular with violent, career criminals. As more states examine either adding or modifying their career-criminal statutes, they should turn to the Washington State model for guidance. Washington State's experience has shown that such a law is both effective and affordable.
About the Author
Dave LaCourse is currently the Executive Director of Washington Citizens for Justice and is a former Research Analyst for the Washington Institute for Policy Studies. He helped author both the Three Strikes and Hard Time proposals and was Campaign Director for both initiatives.