by Kevin Schofield
This weekend’s reading starts with an item hot off the presses: a ruling from the Washington State Supreme Court this week. The case concerns a man convicted by a jury of second-degree robbery and sentenced to 63 months in prison for the crime.
The issue before the Court was how much discretion judges have to issue “exceptional sentences” that are outside the range of the sentencing guidelines written into law by the State Legislature. In this case, the trial judge noted that the man had stolen only about $15 worth of items from the store (the judge called it “glorified shoplifting”), but explained that he did not have discretion to diverge from the sentencing guidelines. He applied the minimum sentence allowed: 63 months. It should be noted that the sentencing guidelines are based not only on the crime — and it was second-degree robbery because the man punched a security guard twice as he tried to escape — but also on the accused’s “offender status” based upon prior criminal convictions. Still, it’s hard to square a five-year sentence with $15 of meat and cheese, and the defendant’s attorneys appealed the case to allow the Court to consider when trial court judges have the right to issue exceptional sentences (high or low).
The Court restated the guidance it had provided in earlier cases: Judges can diverge from the guidelines when there are additional facts and circumstances that the Legislature had not considered when writing the sentencing guidelines, and when those facts and circumstances represent a “substantial and compelling” reason to go outside the guidelines.
But this case isn’t worth reading for that decision, even though it provides important context on the practical challenges with sentencing reform. Instead, we must skip to the last four pages of the Court’s published opinion, in which Chief Justice Steven González wrote a concurring opinion sharing his thoughts on the State’s Sentencing Reform Act of 1981. That law was passed to right a grievous wrong: to stop judges from using their sentencing discretion to issue shorter sentences to White defendants than to Black ones convicted of the same crimes. It did so by setting clear boundaries on the conditions under which judges may exercise their discretion.
González puts forth a compelling argument that the Sentencing Reform Act has not reduced the racial biases in the outcomes of the criminal justice system — and, in fact, may have exacerbated them. He points out that 41 years after the law’s passage, Black people comprise 3.5% of the state’s population, but 19% of the prison population. González argues that this is the result of upstream biases in the system: Police stop Black people more often than White people; they search them more often; they arrest them more often; and prosecutors may charge them with more serious offenses. The compounding result is that a higher proportion of Black defendants end up being convicted and sentenced, and with the constraints imposed on discretion in sentencing, judges have few tools to mitigate the wrongs that have occurred before a defendant ends up in their courtroom. González wrote:
“While, perhaps, the SRA constrains some judicial discrimination and favoritism at sentencing, it does so at the cost of making it impossible for judges to avoid imposing a sentence driven by the injustices embedded in the criminal justice system, no matter how obvious those injustices might be. If anything, the SRA has made discrimination in sentencing more difficult to detect, let alone remedy, by transferring significant discretion from the judge at sentencing to the prosecutor at charging.”
Chief Justice González cites last year’s state task force report on race and Washington’s criminal justice system, which pieces together the evidence for the numerous racial biases in the criminal justice system. González is no stranger to the task force’s work: He served on its predecessor 10 years earlier.
A common response to claims of racial bias in the outcomes of the criminal justice system is to argue that People of Color are simply committing more crimes. However, as González and others before him have pointed out, there is no credible evidence to support this assertion. Most attempts to shore it up point to statistics on arrests and convictions, conveniently glossing over the fact that arrests and convictions are tainted with their own biases that extend even earlier to police stops and searches — before arrests even occur. On the other hand, there is evidence that People of Color are not more likely to commit at least some crimes: For example, according to studies, the proportion of Black people who are illicit drug users is not higher than the proportion of white people. Black people just get stopped, searched, arrested, and convicted of it more often. And, in fact, white people are more likely to deal drugs, even though Black people get arrested for it more often.
González hints but doesn’t explicitly say that he believes that the Sentencing Reform Act itself is unconstitutional for its disparate impact upon Persons of Color. First, however, he urges that follow-up work be done to confirm the findings of last year’s task force before its recommendations are acted upon. He concludes by writing:
“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.”
Kevin Schofield is a freelance writer and publishes Seattle Paper Trail. Previously he worked for Microsoft, published Seattle City Council Insight, co-hosted the “Seattle News, Views and Brews” podcast, and raised two daughters as a single dad. He serves on the Board of Directors of Woodland Park Zoo, where he also volunteers.
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