October 28, 2021 | Azias Ross
Today there is so much conversation and organizing around reforming the criminal justice system. Every year we are pushing for new legislation, the implementation of new statutes, or new rules, new regulations which are all necessary and valid. However, there exist within the current framework of the Sentencing Reform Act (SRA) statutes and sections which are both unconstitutional in their application and standing that we must also be equally as passionate and determined to correct and address. If we imagine a more equitable and sustainable system of justice, then we must build upon an equitable, fair and just structure.
This is an issue that I do not believe has been addressed thus far, I may be incorrect, but nonetheless, I seek to elucidate my concern herein. Please read in full. Thank you for your time and efforts in this work.
In Washington State, as you may already be familiar, we sentence individuals on a grid which reflects vertically the seriousness of the offense based on an individual's offender score. The very first bracket on the horizontal axis begins with sentencing ranges for individuals with an offender score of 0 followed by a bracket for 1 a bracket for 2, 3, 4 so on and so forth. The very fact that there is an entire bracket and range of sentences for individuals with 0 points or no offender score says that the legislation intended that courts would encounter and sentence individuals who have no criminal history, thus no offender score. However, that is NOT the way courts are applying it and here is why:
The Revised Code of Washington (RCW) 9.94A.525, which deals with the offender score at (1), says: "A prior conviction is a conviction which exist before the date of sentencing for the offense for which the offender score is being computed." Then it goes on to read..."convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589, which states in part at (1)..." the sentencing range for each current offense shall be determined by using all other current and prior offenses as if they were prior convictions for the purpose of the offender score PROVIDED: that if the court enters a finding that some or all of the offenses encompass the same criminal conduct then those offenses shall be counted as one crime."
RCW 9.94A.525 is applied, for example if I were to go to trial and am convicted and found guilty on June 3rd but my attorney and the state push my sentencing off, let's say a week, and I return to court on June 10th. Because 9.94A.525(1) reads that a prior conviction is a conviction which exists "before the date of sentencing" even though an individual has 0 criminal history if he or she is convicted on one day and sentenced on another the court will add up the offender score as if their current offenses are prior offenses, RCW 9.94A.589(1)(a).
This kind of interpretation and willful application is not only egregious but also unconstitutional and manipulative. I would argue that it's a violation of due process. Due process is a two prong question: 1). Has there been an interest in life, liberty or property which has been interfered with by the state?, and 2). Was the process of the interference constitutionally sufficient?
When an individual pleads guilty, the court must make sure that he or she understands all of its implications and such a plea must be taken willfully, knowingly, and intelligently. Here, courts are increasing individual sentences significantly without any notice. Courts are not advising individuals that by not being sentenced on the same day they are going to be sentenced with a higher offender score; thus having a higher sentencing range, and if an individual's attorney says nothing, I say they are complicit. I would argue that RCW 9.94A.589(1)(a) which counts all prior and current convictions as if they are prior convictions for the purpose of the offender score defeats the whole purpose of having a 0 on the sentencing grid. If no one is ever sentenced with an offender score of 0 even if they have no prior felony convictions and are before the court for their first felony offense, why have an entire range for people with 0 points?
There's absolutely no reason at all that a person who comes before the court for their first conviction should be sentenced off of the scale. Why have an offender score of 9+ on their first conviction? The difference in points is a difference in years; a dramatic difference... we're talking upwards of 10+ years. There should be a push to change these kinds of sentencing statutes that increase an individual's sentence for no other factor than mass incarceration. The purpose of the sentencing grid and the whole purpose of criminal history was to increase the amount of time repeat offenders receive which is understandable. If I commit a crime and let's say I get 1 year, get out and commit the same crime or another, because I have this prior offense I should expect to receive more time with a higher offender score. But to take someone who is being sentenced for their first offense and sentence them to an offender score of 9, placing them off of the scale is unjustifiable. These are the kind if sentencing schemes we need to dismantle. These kind of practices only seek to increase mass incarceration and fill prisons unnecessarily.
I hope that this explanation can create the needed exposure to change unequal and unnecessary statutes such as these. Thank you.