Strike Three: They're Out -- In Its First Year, New Law Fell Mostly On Robbers

"I'll tell you sir, I HAVE HAD ENOUGH. NEVER, and I mean NEVER AGAIN in my lifetime will I ever be involved in any type of criminal activity. And I mean not even so much as a parking ticket."

That's what Steven Morgan told a judge in 1990 when sentenced for second-degree robbery.

Two years later, he stood in a Seattle convenience store pretending to hold a gun behind his back and flashing a smile. He took $70 from the till, returned $13 and shook the clerk's hand.

Last Christmas season he twice robbed a 91-year-old Seattle man, held up one gas station and tried to steal from another.

Now he awaits a mandatory life prison term as the county's sixth "three-strikes" criminal.

In many ways, Morgan, 41, is a perfect example of the offenders being swept up by Washington's three-strikes law, 1 year old tomorrow. He never physically harmed anyone, but preyed on easy targets and somehow didn't get the message prison was meant to send.

Nine men have been sentenced statewide under the law. Seven are robbers much like Morgan. State budgeters estimate that by 1999, there will be about 135 lifers under the law, matching the number serving life terms for aggravated murder and other violent crimes.

The law is being emulated across the country, yet is still wrapped in debate.

The state Supreme Court eventually will determine if the law is constitutional and state and county budgeters are carefully charting its long-range costs. The most fundamental issues are contested with each case. Will it deter? Will it make us safer? Is it fair? Is it enough?

The Persistent Offender Accountability Act, or the "three strikes, you're out" law, was passed overwhelmingly by voters last year. It calls for life imprisonment for a person convicted three separate times of one of about 40 different felonies, from attempted second-degree assault to murder.

Critics complain the law will be very costly in the long-run and do relatively little to curb crime. They liken its broad sweep and harsh effect to fishing with dynamite.

"I look at Charles Manson, Sirhan Sirhan and then Steve Morgan," says Julie Gaisford, Morgan's attorney. "You know what the difference is? Steve Morgan will never come up for parole."

But the degree of violence or the amount of money taken is irrelevant, says Dave LaCourse, a mover behind the initiative. It's the victims' fear and offenders' unwillingness or inability to reform that matters.

"Why should we wait until they kill until we take them seriously? We give them two chances. It's not just their crime, but their criminality being punished," he says.

Five of the sentenced offenders are from King County. They are mainly small-time street criminals with substance-abuse problems who range in age from 25 to 46.

Those five offenders also are all African-American men. In fact, 10 of the first 15 cases filed in King County involve black defendants. In Snohomish County, only one of the eight cases involves a black defendant; in Pierce County, it's two of seven.

King County Prosecutor Norm Maleng says race plays no role in charging decisions and the early numbers are driven by nothing other than the combination of demographics and chance.

"Disproportionate does not mean discriminatory," he says.

Public defenders are studying whether white defendants in King County get more breaks on first and second strikes by being charged with lesser crimes or by being allowed to plead to lesser crimes more often than are people of color.

The average two-strikes criminal - there are an estimated 4,300 in the state - is a 37-year-old white man with a history of robbery or assault, according to Department of Corrections data.

Twelve of King County's 15 cases involve robbery. Four of Snohomish County's eight cases are robberies. Six of the seven in Pierce County involve robbery and assault.

Those are the typical street crimes. Second-degree robbery, in which no weapon is used, carries a relatively light sentence, especially in return for a guilty plea. That enables a repeat offender to build up strikes quickly, as Morgan did.

The legal difference between second-degree robbery, where force or the threat of force is used, and first-degree theft can be slim, but the variation in punishment can be huge. Robbery is a strike; theft is not.

Michael Lee Bridges was sentenced to life for second-degree robbery in what his attorney maintains was a botched pickpocket attempt. Bridges tried to lift a man's wallet, but yanked it after the victim caught him and then struggled to get away.

King County Superior Court Judge Anthony Wartnik ruled Bridges intended to commit theft but used force when caught, making it robbery. Bridges already had two second-degree-robbery convictions, so that was his final strike.

Maleng and others say complaints minimizing third-strike crimes are misplaced because offenders have fair warning.

The state Office of Fiscal Management says an additional $8.7 million may be needed by 2000 to pay for a new prison and other costs associated with the law. Lifers tend to be more expensive to house because they experience more psychological and health problems. Prisons already are above capacity.

While there's no clear evidence the law deters, one suspected forger recently told police he switched from robbery to passing bad paper because he has two strikes. A defense attorney said a former client was interested in the details of the law so he could commit only non-strike crimes.

Defense attorneys warned the law would drive up trial rates because defendants would be less willing to plead guilty to second- or even first-strike crimes. But many defendants don't engage in long-range planning and will plead to a strike if it means a lower immediate sentence.

"The ones we see either don't think they'll commit another crime or don't think they'll get caught again," says Kitsap County Deputy Prosecutor Pam Loginsky.

Crime researchers say a small number of criminals commit most crime, but the majority of violent crime is committed by people with no prior felonies.

King County public defenders generally spend 12 hours on a robbery case, but in two of the initial three-strikes robbery cases, they spent 700 and 800 hours respectively because they litigated nearly every aspect of the law.

The County Council already has given prosecutors almost $100,000 to pay for a senior deputy prosecutor and a paralegal to work full time on three-strike cases.

Maleng believes the law gives his office discretion to seek a lesser sentence against a three-strikes criminal if there is enough mitigating circumstance. That hasn't happened.

Other county prosecutors, including in Pierce and Snohomish, say the law allows no discretion once a third-strike conviction occurs.

King County prosecutors also call new juries after a third-strike conviction to confirm the defendant's identity and convictions. Other counties believe it's up to the sentencing judge.

Maleng's approach is in line with state Supreme Court rulings under the similar but dormant Habitual Criminal statute that for decades allowed life sentences (with parole) for third felonies.

LaCourse says three-strikers can be released, but only by a pardon from the governor. "We wanted the justification to come from an elected official, not some nameless group like the old parole board."

His group has launched another get-tough initiative that, among other things, would track sentencing decisions by judges.

Sentencing guidelines allow judges to deviate from set punishment ranges only when they can articulate why a case warrants it. Judgment is a critical factor missing from three strikes, some judges say.

At Steven Morgan's sentencing this month, defense attorney Gaisford plans to raise issues regarding his head injuries and emotional problems. She says he was never given the means to rehabilitate and will ask a judge to sentence Morgan to eight years in prison, not life.

Morgan's elderly victim, Russell Lanning, had given the convict an odd job and was re-paid by being robbed twice. The second time, Morgan could find no money, so he took Lanning's ornate banjo.

Yet Lanning views Morgan's pending sentence with little satisfaction. "I don't hate him; that's not my nature," he says. "I sure don't want to spend all my money supporting him in prison, but I don't want him picking on anybody else, either."

Seattle Times Snohomish County bureau reporter Karen Alexander contributed to this report.