State 'three-strikes' law hits blacks disproportionately

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They have repeatedly robbed and assaulted. Some have murdered, raped and burglarized.

These so-called "persistent offenders" — 179 total — have been sentenced to life without the possibility of parole under Washington's "three strikes" law.

The 8-year-old law, intended to lock up the state's worst criminals, is resulting in life sentences for African Americans at a much higher rate than for whites, based on population, according to a recent state Sentencing Guidelines Commission report.

The report shows blacks make up 3 percent of the statewide population but 37 percent of the state's three-strike lifers.

While 83 percent of the state's population is white, 55 percent of those imprisoned for life under the law are white.

The report analyzed 2000 census data, excluding people who identified themselves as multiracial, with state sentencing data from 1994 through 2000, excluding those sentences in which race or ethnicity was unknown or was identified as "other."

Other results show: Native Americans, 1 percent of the population, make up 3 percent of three-strike lifers. Hispanics are 6 percent of the population and 4 percent of three-strike lifers. Asian/Pacific Islanders are 6 percent of the population but less than 1 percent of three-strike lifers.

The commission's analysis doesn't explain why the statistical differences occur, and the report does not suggest that racial bias exists — a point underscored by commission members, who are charged with evaluating the system and who already have suggested some modifications to the law.

That blacks are imprisoned at a higher rate than whites under the state's three-strikes law mirrors what some attorneys, judges, sociologists and others who monitor the criminal-justice system say they long have known: Young black males are more likely to be sentenced to prison; they are more likely to be sentenced and incarcerated for drug offenses; and they are more likely to be arrested for violent and property crimes than are their white counterparts.

George Bridges, a sociologist and acting dean of undergraduate education at the University of Washington, has long studied racial disparity in the criminal-justice system, which he says affects racial minorities and the poor to a greater degree than whites. For example, Bridges said, minorities have less ability to pay for legal representation or post bail.

Bridges said it is hard to account for "the enormous degree of disparity" in sentencing.

Even so, it would be wrong to look at just the statistics and conclude that the disparity exists because of racial discrimination, according to David Boerner, chairman of the commission.

Race is not a factor when judges rule on three-strikes cases or when prosecutors decide to pursue a three-strikes case, says Boerner, a Seattle University professor of law and former chief criminal deputy in the King County Prosecutor's Office.

Jim Nagle, a commission member who is prosecuting attorney for Walla Walla County, agrees.

"One of the first things that pops up in my mind is whether there's something about the charging decisions or the sentencing practices of judges," Nagle said. "The universal comment, though, is that there isn't. The prosecutors, the courts, they take the cases they get. They don't pick and choose. We don't look at race, ethnicity, gender, sexual orientation. We look at whether we can prove a case beyond any reasonable doubt."

First in the nation

Passed in November 1993, the state's three-strikes law was the first law in the nation mandating life sentences for those who repeatedly commit certain crimes. The law sparked a national trend: About half the states now have some form of the law.

In Washington state, almost 50 felonies are classified as strikes. Before the law took effect, life sentences were reserved only for aggravated murders.

Proponents, who cite a decline in violent crime, say the law is working.

"We're not saying it's only 'three strikes,' but tougher sentencing has definitely helped," says Paul Guppy, research director of the Washington Policy Center, which generated a report that led to the three-strikes legislation.

"If a criminal is in jail, he can't criminalize someone else," Guppy said. "The first mission of government is public safety."

But opponents have long argued the law casts too wide a net.

Take the case of Freddie Hampton, says Russell Leonard of the Seattle King County Public Defenders Office. Hampton, who is black, was a drug addict who robbed banks by demanding money with a handwritten note. He never used a weapon. Three bank robberies in two years meant three strikes — and in 2000, Hampton got life without possibility of parole.

The adult felony-sentencing report, which found black men and women are sentenced at disproportionately higher rates for all felonies, suggests further research into such variables as socioeconomics, policing, unemployment, the charging practices of prosecuting attorneys and plea bargaining.

Boerner, commission chairman, agrees the reasons could be numerous and are likely more societal than legal.

"It may be who gets arrested. It may go way back as to whether you are even released on bail — if you can show you have ties to the community or if you can get parents to show up on your behalf," he says. "But is that race?"

The King County Prosecuting Attorney's Office, which had only recently received the report, had no comment on the findings.

At this point, no one has really tried to figure out the causes behind the statistics, says Nagle, the commission member and Walla Walla County prosecutor.

Changes favored

The guidelines commission has recommended changes in the three-strikes law. But addressing the racial statistics wasn't discussed, Nagle says.

The commission recommended that convictions for some types of second-degree assault, along with all forms of second-degree robbery — with the exception of robbery of a financial institution — be eliminated as a "strike." The recommendations, though, aren't part of any bill that has been introduced in the Legislature this year.

Leonard, the Seattle public defender, says the law ought to be revamped so that nonviolent offenders — including the poor, drug-addicted robbers his office so often defends — aren't being sent away for life.

Bridges, the sociologist, agreed.

"It's not to say that some people haven't committed crimes and shouldn't be held responsible, but the question is should they be spending the rest of their life in prison?" he said. "For many ... the answer is 'no.' "

But Guppy, of the Washington Policy Center, warns against changing something he says is successful. All assault is violent, he adds, especially if you're on the receiving end.

"I don't think the offenses should be set in concrete," he says. "But we have to be careful about being led by statistics. If an individual makes a poor choice, they should be accountable."

Florangela Davila can be reached at 206-464-2916 or