Simple solution sought for sentencing system

The Washington Sentencing Guidelines Commission voted overwhelmingly Friday to seek a simple repair of the criminal sentencing system the U.S. Supreme Court broke in June.

The high court created chaos in Washington courts with a ruling that prompted many judges to conclude they no longer had authority to hand down above-standard sentences.

Supreme Court justices ruled – in the case of Grant County, Wash., resident Howard Ralph Blakely Jr. – that defendants are constitutionally entitled to have a jury determine all facts used to justify above-standard sentences.

Under Washington’s sentencing guideline system, trial judges previously decided for themselves whether aggravating factors warranted a sentence in excess of the normal range.

If the Legislature adopts the Sentencing Guidelines Commission recommendation, prosecutors will be required to include aggravating factors in charging documents. That’s already done for sentence “enhancements” such as use of a firearm, sexual motivation or proximity to a school.

Aggravating factors would include things such as unusual cruelty, violation of a trust, or special vulnerability of a victim.

The need to fix the law opened the door to broader amendments, but the guidelines commission elected not to walk through. At least not now.

Meeting at Seatac, Wash., with 18 of 20 voting members present, the commission voted 14-0 in favor of a minimalist plan hammered out by a committee of prosecutors and defense attorneys. The four judges on the commission abstained, and state legislators on the commission aren’t allowed to vote.

Chairman David Boerner, a law professor at Seattle University, said the judges presented a proposal to make the guidelines advisory-only for the most serious crimes and the most persistent criminals. The plan would have applied to approximately 32 percent of the felony cases covered by the guidelines.

“There was a great deal of debate on that,” Boerner said.

Although the proposal was rejected, he said there was a consensus that the relationship among judges, prosecutors, defense attorneys and others in the criminal justice system “needs work, and it’s going to get it.” But not right away.

Boerner said the commission also had a “civil, rich discussion” about a couple of points on which prosecutors and defense attorneys couldn’t agree.

Defense attorneys wanted a fixed list of aggravating factors juries could consider, while prosecutors wanted to retain the present open-ended list of suggestions.

Also, prosecutors wanted to require the factors to be considered during the normal course of a trial unless there is a compelling reason to wait until after a verdict is reached. One of the likely exceptions would be aggravating circumstances involving a defendant’s criminal history, which ordinarily would not be admissible at trial.

Defense attorneys wanted to let judges decide when to segregate aggravating factors from trial testimony.

Boerner said the commission agreed to present both disputed options to the Legislature as an “agency request bill.”

“My instinct is that it will be introduced in the Senate,” Boerner said, but sponsors haven’t yet been identified.

He had no idea when the bill might come up for action.

“We’ll need a governor first,” he said.