In the perpetual contest between legislators and judges over the criminal justice system, the legislators have the ball at the moment.
In Olympia this week, the Washington state Senate unanimously passed and sent to the House a bill aimed at restoring the ability to send egregiously bad criminals to jail for longer periods than the state’s sentencing guidelines call for.
Three decades ago, Washington state lawmakers recognized a serious disparity that was on display in courts across the state. To oversimplify the situation, liberal urban judges were seen as softer on criminals than conservative rural judges. As a result, defendants who had similar backgrounds and had committed similar offenses under similar circumstances were receiving different punishment depending on where in the state they went to court.
In response, the lawmakers came up with a set of formulas that prescribed relative narrow ranges of sentences, based on a scoring system using documented facts. State law should be applied uniformly to all state residents, they emphasized.
But lawmakers knew a pat formula couldn’t anticipate all contingencies, so the law allowed judges to go outside the range when aggravating or mitigating facts existed.
When, for example, Superior Court Judge Larry Kristianson sentenced former teacher Carl John Schubert in a Pend Oreille County case in 2003, he ordered him to prison for 10 years. That was the maximum provided by law for Schubert’s conviction of taking indecent liberties with a special education student. Schubert’s profile called for a sentence of only up to 20 months, but the judge considered the defendant’s authority role over his victim and her mental age of 5 to 7. He found the offense a “despicable” violation of trust that demanded an exceptional sentence.
Since then, however, the U.S. Supreme Court has ruled that judges alone can’t impose extraordinary sentences. A jury has to consider the facts on which such a sentence is based. Consequently, Schubert’s sentence was overturned earlier this year, leaving attorneys and judges scratching their heads as to whether they could take the logical next step — empanel a jury to do just what the Supreme Court prescribed.
One Washington Court of Appeals, in Snohomish County, has said it’s OK. But the Court of Appeals for the Spokane region declined to address that issue when it invalidated Schubert’s sentence.
That’s why the Senate-passed legislation is as necessary as it is sensible. It would allow a prosecutor to seek an exceptional sentence and allow a jury to consider the supporting facts. The House should follow the Senate’s example, and Gov. Christine Gregoire should sign the measure when it reaches her desk.
If so, Washington will have restored fundamental reasonableness to the criminal justice system. Then, of course, it will be the courts’ next move.
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