Politics & Government

Is giving judges more discretion in sentencing the right reform? Lawmakers to decide

The 2020 Legislature’s debate over how to overhaul the criminal sentencing system is expected to center on how much more discretion judges should have in sentencing those convicted of adult felonies.
The 2020 Legislature’s debate over how to overhaul the criminal sentencing system is expected to center on how much more discretion judges should have in sentencing those convicted of adult felonies. AP file photo

Over the next 20 months, state legislators are expected to study, debate, and vote on what could be the first major reform of Washington’s criminal sentencing law since 1981.

The starting point of the deliberations is a stack of recommendations from a state commission that would give judges more discretion in how they sentence adults convicted of felonies. The change could help the state reduce its reliance on incarceration and move more toward rehabilitation of offenders.

The goal of overhauling the criminal sentencing law is to improve the system by simplifying it, but there are key questions looming for lawmakers, said Rep. Roger Goodman, the Kirkland Democrat who is chairman of the House Public Safety Committee.

“To what extent should judicial discretion be enhanced? And to what extent will that increase disparities or result in some perceived unjust sentences?” he said.

Although legislators may not answer those questions until the 105-day session in 2021, ideological lines already are being drawn. Disparities — a lack of equality or similarity in a way that is unfair — can occur by race, gender, geography, income and other factors, but the discussion last month touched heavily on race.

At a July 16 legislative work session, Sen. Jeannie Darneille, D-Tacoma, questioned whether the Criminal Sentencing Guidelines Commission had studied systems in other countries that would help Washington address concerns throughout the United States about “mass incarceration.”

Russ Hauge, the commission’s chairman, said it had not done so.

Darneille, who is a non-voting member of the commission, said she was hoping for reforms in which “Washington state would turn the corner and would address some processes that have negatively impacted communities of color in our state. So I’m not hearing that here and I’m looking at six people representing the commission, all of whom are Caucasian.”

Jon Tunheim, Thurston County’s Prosecuting Attorney, is a member of the 24-person commission.

Earlier in the meeting, Rep. Jenny Graham, R-Spokane, said crime victims “do not suffer any less based on who does this crime. We can’t be so focused on the racial disparities that again we are ignoring the real pain and the real harm that the victims go through regardless of who commits the crime.”

The Legislature adopted the Sentencing Reform Act in 1981 and it took effect three years later. Since then, lawmakers have amended it dozens of times. The state’s three appellate courts and the Supreme Court have issued several rulings interpreting its provisions.

Hauge, chairman of the Sentencing Guidelines Commission and a former Kitsap County Prosecuting Attorney, said there have been several “good-faith” efforts to make the law better, but “what we have created is a system of almost impenetrable complexity that the Department of Corrections is charged with making sense of.”

Goodman said there are several recommendations in a July 1 report by the Criminal Sentencing Guidelines Commission that the Legislature can tackle during its 60-day session next year.

One of them is to expand the types of cases in which a Superior Court judge can request a pre-sentence investigation report. The purpose of a pre-sentence investigation is to collect information about defendants to help judges determine an appropriate sentence.

“In the past, (pre-sentence investigations) were requested frequently, but as budgets were affected by the recession, requests were limited to those who have been convicted of a sex offense or who may be mentally ill,” the commission said in its report.

The commission did not recommend using pre-sentence investigations in all cases and said the Legislature should determine which additional offenses would warrant them. The task of doing them should be moved from the Department of Corrections to the Superior Courts, the commission said.

“That costs money and the counties will want some help and I think it’s a priority, so I will be fighting for some sort of funding for that,” Goodman said.

Another recommendation the Legislature can take up in 2020 is to enable Superior Court judges to decide whether supervision terms of people released from prison should be concurrent, Goodman said. Currently, those terms are consecutive — back to back. By making them concurrent — at the same time — people can get help faster, he said.

“Sometimes you have a supervision period for a drug-related offense that comes after supervision for some non-drug-related offense. Meanwhile, you need treatment, but you can’t get treatment during the first supervision period. That doesn’t make sense,” Goodman said.

A person’s greatest risk of committing another crime after release from confinement is within the first three to six months, according to an analysis by the Council of State Governments, a Kentucky-based nonprofit group.

In 2021, the Legislature is expected to decide how much more discretion judges should have in how they sentence adults convicted of felonies.

That decision revolves around the “sentencing grid,” a chart which sets ranges for sentences based on the seriousness of the offense and the offender’s criminal history. Layered on top of that are “enhancements,” higher sentences for crimes, for example, in which a firearm is used.

There also are other factors that can decrease or increase the sentence, referred to respectively as “mitigating” and “aggravating” factors.

The purpose of the Sentencing Reform Act that the Legislature adopted in 1981 was to reduce sentencing disparities by limiting judicial discretion.

“Sentencing immediately became more consistent across the state, and disparities in sentencing correlated to race and other inappropriate factors declined,” Hauge said.

The 1981 law took discretion away from judges, “leaving the prosecutors standing alone in most cases as the only player with the duty and the authority — and the power — to fashion a just result,” said Hauge, who also is a member of the state Liquor and Cannabis Board.

To go above the current sentencing ranges, a judge must have a jury finding beyond a reasonable doubt than an aggravating factor exists, said King County Superior Court Judge Roger Rogoff. To go lower than the range, there has to be a finding by a “preponderance of the evidence” that a mitigating factor exists.

“There are very rare occasions where judges are going to have that ability to go outside that range. Usually we are dealing with an incredibly narrow range with incredibly few options for the sentencing court,” Rogoff said.

The Sentencing Guidelines Commission outlined two options in its July 1 report that would give judges more discretion in varying degrees.

Under the current system, a judge would have a sentencing range of 12-14 months for a defendant who is convicted of a Class B assault with a deadly weapon — and 36 months tacked on for use of a firearm. The 12-14 month sentence carries a 33 percent off for good behavior in prison, but the 36-month enhancement does not.

“The sentence is opaque and difficult for the public to understand and allows almost no discretion for the trial court,” the commission report said.

One of the reform proposals from the commission would provide a sentence range from 12-24 months, but any sentence between six months and 30 months would be deemed reasonable. The entire sentence would carry the same good behavior in prison provision to reduce the sentence.

Clark County Prosecuting Attorney Tony Golik, who is a commission member, expressed concern that too much judicial discretion could lead to more racial disparities and “outlier” cases, similar to the California judge’s decision in 2016 to give a former Stanford University swimmer a six-month jail sentence for sexually assaulting an unconscious woman.

Goodman acknowledges there’s a “serious risk” that more judicial discretion could lead to higher racial, ethnic and class disparities in sentencing and also to “compromising public safety” if a person who is a genuine threat to the community is not incarcerated.

He said there’s no way to ensure a perfect system.

“On the other hand, there might be significant benefits to more judicial discretion, where courts recognize that on a case-by-case basis, defendants have behavioral health disorders and shouldn’t be needlessly punished but need therapeutic help. The vast majority of cases that come before the courts are in that category,” he said.

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