Strike the Law?

The state House is considering changes to Three Strikes and You're Out.

When we left crack-addled holdup woman Cherease Cross (see "Striking Back," Nov. 22, 2001), she was in the first year of a life term for $834 worth of second-degree robberies. The then-38-year-old felon employed such concealed weapons as a curling iron and perfume bottle, and was easily captured in mid-getaway. For her first two heists, she got 19 months in jail; for the third, she got the rest of her life. This is what voters decided was justice when they passed Washington's Three Strikes and You're Out law in 1993, a law that, state Supreme Court Justice Richard Sanders was explaining last week, was not just the first but "the most onerous" three-strikes law in America.

Cherease Cross and low-level offenders like her "serve a sentence closely disproportionate to even the standard range one would receive for first-degree murder, which is 23 years, four months," the white-haired justice said, leaning into the microphone at a House hearing in Olympia. "It is the same they would serve for an aggravated first-degree murder, which is qualified as serial killings or torture killings.

"Stealing a loaf of bread in a grocery store and pushing the clerk out of the way during the exit would also qualify as a second-degree robbery," he noted, which is one of 54 qualifying strike crimes under the law, as is second-degree assault, which "can be little more than a fist fight or a barroom brawl." In those two instances, the penalty for defendants is "grossly disproportionate to the criminal activity for which they were convicted."

When finished, Sanders received the strongest applause allowed under the decorum law laid down by retired Seattle police sergeant Rep. Al O'Brien, D-Mountlake Terrace, chairing the Criminal Justice and Corrections Committee hearing. The mostly black audience, which in part arrived on a bus chartered by King County Council member Larry Gossett, D-Seattle, politely clapped and offered several amens. They came to support House Bill 1881, backed by O'Brien and other Democrats, which would eliminate second- degree robbery and second-degree assault as strike-worthy crimes, leaving perpetrators to be sentenced under standard ranges.

Most importantly, the bill is retroactive, allowing eligible inmates to be resentenced by judges with discretion to let the punishment fit the crime. As many as 134 of the state's 206 three-strike prisoners could be affected. Such a change would end an inequity that Gossett and others say hits black offenders the hardest. But while similar bills have failed before, the compelling force this time may be the state budget. The cash-strapped government can save millionseven "hundreds of millions" in capital costs over time, says Sandersby shorter-term release of such offenders, whose life sentences can cost $750,000 each.

Seattle attorney Dan Merkle told the committee's four Democrats and three Republicans (one didn't know the definition of second-degree robbery and another confused robbery with assault) that he didn't "think [voters] knew that nonviolent robbery 2 and assault 2 would put people away for life." Edward Prince, of the state Commission on African American Affairs, said that though blacks make up less than 4 percent of the state's population, they account for 37 percent of the third-strike felonsmany with a strike of second-degree robbery or second-degree assault. Seattle public defender Russell Leonard cited the Cross case as representative of the law's failure: "She's addicted to crack cocaine [and] needs to be punished, but doesn't she also deserve treatment?"

The committee's Democrats, at least, were persuaded. By a 4-3 party-line vote, the bill was pushed on with a "do pass" recommendation. It is likely to make it to the House floor, but even with its cost savings, "it could be a close vote," said O'Brien, the ex-cop, "like drug reform was last year"which trimmed first-time drug offender sentences and added money for treatment. "It's the right bill, and the right time, I hope."

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