Ruling Giving ‘3 Strikes’ Clout To Judges Unlikely To Affect State

Washington’s three-time losers shouldn’t take too much comfort from a California ruling that allows judges to decide when a “three strikes” case warrants a sentence of 25 years to life.

Because of differences in the two states’ constitutions and legal histories, Washington’s landmark law - which mandates a life term for those convicted of three qualifying felonies - is not vulnerable to the challenge that undercut the California statute, backers and critics agree.

The California Supreme Court ruled June 20 that judges, not lawmakers, have final say over whether a three-time felon is subject to the so-called three-strikes law.

The situation in Washington is not as cut-and-dried on that issue.

California’s highest court invited the nearly 20,000 prisoners sentenced under the 1994 law to appeal their sentences.

Just 59 people have been sentenced so far under Washington’s 1993 three-strikes law.

Different issues

The key issues in the California case are not major elements in a lawsuit challenging Washington’s law, said Seattle attorney Richard Tassano, who represents two of the three inmate-plaintiffs.

“Here in Washington, it is pretty well accepted that the Legislature can go in there and dictate to the court how it can and cannot sentence people,” Tassano said.

“It is not beyond challenge to be sure,” but past rulings in Washington affirm “that the Legislature has the authority or power to impose what it believes is a proper sentence,” he said.

This isn’t to say, he quickly added, that Washington’s voter-approved law is not vulnerable.

Tassano asked the Washington Supreme Court in January to throw out the state’s “persistent offender” law on several grounds. Among other failings, his case contends the statute is vague and inconsistent, violates the inmates’ right to due process and amounts to cruel and unusual punishment.

Old statute the key

The California court said the three-strikes law did not override a century-old statute allowing judges to dismiss charges or disregard a previous conviction in the interests of justice.

“That is not an issue in Washington,” noted state Sen. Adam Smith, D-Seatac, an attorney and a strong supporter of Washington’s law.

The California case is unlikely to have any impact here, he said.

“What the ruling is pretty much saying is the (California) Legislature can’t say what the sentence should be, that it should all be up to the judge. It’s kind of absurd to say a legislature has no control over judges in terms of what sentences to impose,” Smith said. “I think Washington’s law will be upheld as it is.

“But if nothing else, I’m confident that the California argument has about a 2 percent chance of having an effect on our Supreme Court,” he said.

California’s ruling

California’s high court ruled: “Although the Legislature may withdraw the statutory power to dismiss in furtherance of justice, we conclude it has not done so in the three-strikes law,” said the high court ruling.

The decision prompted immediate efforts by Republican lawmakers to come up with a way to fortify California’s three-strikes law so it cannot be overruled by judges.

Such a middle ground may be hard to find. Six of the California justices said a law that tied judges’ hands would violate the constitutional separation of powers. That means such a law could be passed only by a state constitutional amendment approved by the voters.

Nearly half the 59 people sentenced so far under Washington’s law had a criminal history of robbery, according to state Sentencing Guidelines Commission records. A majority of the others had histories of murder, rape, sexual molestation, burglary, assault and kidnap.

Thirty-two of those sentenced to life terms under the three-strikes law are white, 24 are black, one is Hispanic and two are Native American. Only one is female.