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Washington’s Three Strikes Law

PUBLIC SAFETY & COST IMPLICATIONS
OF LIFE WITHOUT PAROLE

Washington’s Three Strikes Law
PUBLIC SAFETY & COST IMPLICATIONS OF LIFE WITHOUT PAROLE

Washington’s Three Strikes Law
Executive Summary	

3

Lessons Learned From Washington’s Three Strikers
Age	

5

Mental Illness	

6

Substance Abuse	

6

Homelessness	

7

Education	

7

Veterans	

7

Disproportionate Minority Contact	

7

Implications of the Three Strikes Law
Costs to the State	

9

Other Criminal Justice Costs	

11

Prevention: A Cost Benefit Analysis	

11

Recommendations
1. Create a “second look” system of review for three strikers	

13

2. Eliminate the least serious felonies from the list of strike offenses	

14

3. Amend the compassionate release statute to reverse exclusions based on sentence length	

15

4. Reinvest savings stemming from reform in prevention and rehabilitation efforts	

15

2

Washington’s Three Strikes Law

Executive Summary

The Persistent Offender
Accountability Act defines a
“persistent offender” as an
individual convicted of any felony
considered a “most serious
offense” who has previously
been convicted on at least two
separate occasions, in any
state, of offenses that under
Washington law would be
“most serious.” “Most serious
offenses” include all class
A felonies and a number of
specifically enumerated class
B felonies. Criminal solicitation
of or criminal conspiracy to
commit a class A felony, any
class B felony with a finding of
sexual motivation not otherwise
included, any felony with a
deadly weapon verdict, and
any attempt to commit a strike
offense also constitute “most
serious offenses.”8

3

Washington’s three strikes law—under which courts
must sentence “persistent offenders” to life in prison
without the possibility of parole—was the first of its
kind in the nation.1 Proponents of the law believed
it would “[i]mprove public safety by placing the
most dangerous criminals in prison” and “[r]educe
the number of serious, repeat offenders by tougher
sentencing.”2 The law was approved by Washington
voters in 1993 as Initiative 593, becoming what is
known as the Persistent Offender Accountability Act. 3
The prediction in Washington, as in other states that
enacted three strikes laws in the mid-1990’s, was that
crime rates would be drastically reduced as a result
of these laws, either through incapacitating the most
habitual offenders, or by deterring those who might
otherwise commit crimes. 4
However, the predicted reductions in crime rates have
not materialized. Studies comparing trends in crime
rates of states that passed three strikes laws in the
mid 1990’s with states that did not enact such laws
show no statistically significant difference attributable
to the new laws. 5 In both groups of states, crime rates
dropped by similar amounts during the period after
such laws were passed. 6 In reality, crime rates were
on the decline in Washington and across the nation
before the three strikes law was passed in 1993.7
This report examines the three strikes law in
Washington and those sentenced under it to
determine how Washington’s limited criminal justice
resources are best deployed. It relies on empirical

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

recommendations
data and meta-analyses conducted on both the state
and national levels, as well as information about the
229 people who, as of 2009, are serving life in prison
without the possibility of parole in Washington under
the three strikes law.9 Such information provides
guidance on areas of need in the prevention arena,
including services related to mental illness, chemical
dependency, homelessness, and education. The report
concludes that, without sacrificing public safety and in
fact while actually improving it, Washington’s criminal
justice resources can and should be re-allocated to
focus more on prevention and rehabilitation measures
and less on the high-cost, low-return life sentences for
certain offenders.

•	 Creation of a system of review
for three strikes offenders to
allow for the potential of release
for those who no longer pose a
threat to the public;
•	 Elimination of the least serious
offenses from the list of strikes;
•	 Expansion of the compassionate
release program to include
three strikes offenders who are
elderly or incapacitated and
therefore are at very low risk of
reoffending; and
•	 Reinvestment of savings from
these reforms in prevention and

“Our resources are misspent, our
punishments too severe, our sentences
too long.”
10

rehabilitation efforts to lower
crime rates overall and create
safer communities.

The Honorable Anthony M. Kennedy,
U.S. Supreme Court Justice

4

Lessons Learned From
Washington’s Three Strikers
There are a variety of social factors, such as age,
education level, presence of mental illness, history of
substance abuse, and homelessness, that correlate
with criminal behavior, including repeat criminal
behavior. Because life in prison without the possibility
of parole is the mandatory sentence under the three
strikes law, courts do not have the opportunity to
consider factors that support a conclusion that
life without parole is not an appropriate sentence
under the circumstances in a given case. This report
examines the existence and prevalence of such
factors in three strikes cases by reviewing and
analyzing court records, records from Department of
Corrections (DOC) files, and information provided by
three strikes offenders. The results of that examination
are set forth below. In particular, this report documents
that certain social characteristics that positively
correlate with recidivism are highly prevalent in the
three strikes population.
These characteristics cannot and should not
be considered excuses for criminal acts. But
consideration of these factors is important to inform
our criminal justice policy and help determine whether
our sentencing laws, such as three strikes provisions,
are effective in achieving the goals of our criminal
justice policies and practices.
Age
Age is a salient factor among three strikes cases.
Roughly ten percent of all three strikers were convicted
of at least one strike offense committed prior to their
eighteenth birthdays. (See chart, p. 9) In each case,

5

although still under 18, they were tried in adult court
and likely incarcerated with adults. The fact that these
youth went on to reoffend is perhaps not surprising. A
November 2007 Centers for Disease Control report
concluded that laws allowing youth to be tried in adult
court “have generally resulted in increased arrest for
subsequent crimes, including violent crime among
juveniles who were transferred compared with those
retained in the juvenile justice system. To the extent
that transfer policies are implemented to reduce violent
or other criminal behavior, available evidence indicates
that they do more harm than good.”11
In reviewing the three strikes law it is important to
consider not only whether the treatment of these youth
as adults at the time of the first strike offense was
appropriate, but also whether there may have been
opportunities for prevention that were missed prior to
any strike offense. The social histories of these young
men are telling.12 In every one of these cases there is
evidence of substance abuse and 64% of those with
strike offenses as juveniles have mental health issues.
A further look into the lives of these individuals reveals
histories of childhood institutionalization in foster care,
group homes, and juvenile detention, as well as high
rates of those who suffered from child abuse.
For those convicted initially as youth, treatment options
available in the juvenile system may have proven
effective at preventing recidivism. In fact, some of the
most successful interventions are accomplished in the
juvenile arena. For example, functional family therapy
has been shown to reduce recidivism by 18.1%,
and counseling or psychotherapy reduces recidivism
by 16.6%.13

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

Mental illness

Substance abuse

People who are mentally ill have more frequent
encounters with the legal system than their peers.
People with serious mental illness are three times
more likely to be found in prisons and jails than in
hospitals.14 Studies show that mentally ill offenders
have a higher rate of violent recidivism, and nationally
over half of prisoners with mental illness report three
or more prior convictions.15 According to the DOC, at
least 15% of Washington’s prisoners are considered
to be seriously mentally ill.16 This number is likely higher
among the three strikes population. Half of all three
strikers have either been determined to be seriously
mentally ill by DOC, self-report mental illness, or have
other indications of mental illness in their records.

There is a well-recognized connection between
criminal activity and substance abuse.21 The DOC
reports that at least three-quarters of Washington’s
prison population has a chemical dependency
problem.22 Nationally, 16.7% of crimes are committed
to obtain money to buy drugs and 30% of people
convicted of crimes report using drugs at the time of
their offense.23 Reports from three strikers confirm this
data. A significant number of three strikes offenders
report that their crimes were drug related—either
committed in an effort to obtain drugs or money to buy
drugs, or committed while under the influence of drugs
or alcohol. Many also report that they would not have
been involved in the criminal activity were it not for
their addictions.

Providing treatment to mentally ill offenders can
dramatically decrease recidivism. According to
studies, housing mentally ill prisoners in therapeutic
communities reduces recidivism by 20.8%.17 The
Washington State Institute for Public Policy (WSIPP)
has further found that participation in the DOC’s
program for dangerously mentally ill offenders
decreased recidivism by 20.7%.18 Providing cognitive
behavioral therapy to prisoners also reduces recidivism
by 6.9%, and evidence-based treatment of mentally
ill prisoners has been shown to decrease recidivism
by 22%.19 In addition, providing housing supports to
mentally ill offenders upon release reduces recidivism
rates by 5%.20

Not only is history of substance abuse an
overwhelmingly common characteristic of those
sentenced under the three strikes law, but so is
the inability to access substance abuse treatment.
Although there is evidence of substance abuse
problems for 91% of three strikers, for 77% of those
individuals there is no evidence of substance abuse
treatment in their files, including during previous terms
of incarceration. Yet, according to the DOC, “[i]n
the absence of treatment, 75 percent of untreated
offenders return to crime within 30 days of release to
the community.”24
Data produced by WSIPP indicates that providing
drug treatment to prisoners, both in outpatient clinics
and through therapeutic communities, reduces
recidivism by 6.4%, and providing treatment upon
release results in an 8.3% reduction in recidivism.25

“Persons with mental disorders, chemical dependency disorders, or cooccurring mental and substance abuse disorders are disproportionately
more likely to be confined in a correctional institution, become homeless,
become involved with child protective services or involved in a
dependency proceeding, or lose those state and federal benefits to
which they may be entitled as a result of their disorders.”
26

- Washington State Legislature

6

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

Homelessness
Homelessness is another factor that is likely connected
to recidivism, especially where homelessness
co-occurs with either substance abuse or mental
illness.27 Although documentation of homelessness
is rare, for cases where evidence related to housing
history is available, 62% have been homeless at
some point in their lives, and 78% of those report
homelessness at the time they committed one of
their strike offenses. Among those with a history of
homelessness, there is evidence of mental illness in
63% of the cases and evidence of substance abuse
in 95%. Homeless inmates with co-occurring serious
mental illness and substance-related disorders are
more likely to have multiple episodes of incarceration
than inmates without these characteristics.28
Research suggests that homelessness alone increases
the risk of recidivism by 27%.29 “In Washington State,
19 percent of offenders released from prison or jail
reported being homeless or transient for at least one
month in the six months prior to their incarceration.”30
Education
Of those three strikes offenders for whom an
education level is known, 75% did not complete high
school, and many dropped out before the ninth grade,
some as early as elementary school. 31 This data is
key because education level is considered a reliable
indicator of recidivism. Lower education level is directly
related to the probability of incarceration, and studies
reveal that higher levels of education result in lower
rates of recidivism. 32
In fact, studies suggest that participation in an
education program in prison reduces recidivism in a
statistically significant way. 33 An analysis conducted
by WSIPP found that providing education programs

7

to youth in the juvenile offender system reduces
recidivism by 19.4%. In the adult system, providing
vocational education to prisoners lowers recidivism
by 9.8%, while providing them with basic education
reduces recidivism by 8.3%. 34 Educational programs
generally have been shown to reduce recidivism by
12 to 50%. 35
Veterans
Many of these issues also overlap with the growing
need to provide community support for veterans. At
least 16% of three strikers have served in the United
States Armed Forces. The high incidence of chemical
dependency, mental illness and homelessness among
the veteran prisoner population is well documented. 36
These issues are evident in the three strikes population
as well. Approximately 95% of three strikers who are
known to be veterans have a history of substance
abuse, 57% have evidence of mental illness, and
all who have evidence of mental illness also have a
history of substance abuse. There is also evidence of
homelessness in 57% of those cases.
Disproportionate
Minority Contact
In addition to the social data documented above, it
is also important to note that the three strikes law
has had a disproportionate impact on Washington’s
communities of color. Approximately 53% of three
strikers are from minority racial groups, while minority
groups make up only 25.4% of the state’s population.
The greatest disparity exists for the African American
community. Almost 40% of three strikes offenders
sentenced are African American, while only 3.9% of
the state’s population is African American. The next

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

highest disparity is for American Indians,
who are represented among three strikers at a rate
more than two and a half times greater than the
general population. 37
This disproportionality is unsurprising in light of a
2010 finding by the United States Court of Appeals
for the Ninth Circuit that racial disproportionality in
Washington’s criminal justice system is widespread,
resulting in the overrepresentation of minority groups

Washington’s Population
by Race
3.1%

at all levels of the criminal justice system. The State
did not dispute the evidence on racial
disproportionality in that case. Though the decision
was subsequently overturned on other grounds, the
racial disparity evidence relied upon in the original
decision remains valid. This research finds that the
racial disproportionality cannot be explained by factors
other than discrimination on account of race. 38

Washington’s Three Strikes
Population by Race

3.9%
7.5%

10.3%
47.0%

39.6%

1.8%

74.6%

2.2%
3.9%

African American

American Indian

Asian

White

Hispanic

Other

6.1%

8

Implications of
the Three Strikes Law
A Choice Between Incarceration and Prevention

While in the general population
people are not considered
elderly until age 65, 42 Washington
agencies consider prisoners
to be elderly at 50 years old
reasoning that “inmates tend to
become ‘elderly’ earlier than their
non-incarcerated counterparts
and when inmates are ill, they
tend to be more severely
stricken than others.”43 Several
factors contribute to the early
aging of prisoners including
“[s]ubstance abuse, poverty,
lack of access to preventative
care, and the stress of
incarceration.”44 These issues
create health problems in
prisoners ordinarily seen in
people in the community who
are ten to fifteen years older. 45

9

In recent years funding for preventative programs has
been diverted to the costs of incarcerating individuals
under long term sentencing. With increasingly limited
tax dollars available, the reality—particularly in the
current budgetary climate—is that policy makers must
make a choice between funding preventative programs
and continuing to incarcerate individuals under longterm sentencing laws such as three strikes.
Costs to the State
As a result of the mandatory sentence of life in prison
without the possibility of parole, all three strikers
will likely grow old and die in prison. Along with the
decision to impose such sentences comes the cost
of an aging prison population, whose growth rate
Washington’s Sentencing Guidelines Commission
(the Commission) has characterized as “daunting.”39
Among three strikers, 110 inmates—48%—are over 50
years old, and the average age of three strikers is 49
years. By 2021, even with no new offenders sentenced
under the three strikes law, the number of three
strikers over age 50 will increase to 195.
As a result of the needs of the elderly, in 2001 the
Commission estimated that it cost over $98,000 per
year to incarcerate an elderly prisoner—more than
four times the cost of incarceration for the average
prisoner. The Commission found this cost discrepancy
“even more troubling when weighed against [the]
minimal incapacitative benefit” of imprisoning the
elderly. 40 Research shows that criminal activity peaks
during the teenage years and generally drops off after
about age 50. 41

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

The costs of housing a growing elderly population are
not only expensive, but also unnecessary. Rates of
recidivism decrease substantially with age, indicating
that imprisonment for the purpose of incapacitation
serves public safety less and less as an offender ages.
In fact, age is generally considered one of the most
accurate predictors of recidivism. 46 Studies reveal that,
while 45% of those between the ages of 18 and 29
years return to prison within a year, only 3.2% of those
aged 55 and above reoffend in the same time period. 47

Washington-specific data also reveals that age is
negatively correlated with felony, violent felony and
drug-related recidivism. 48 Approximately 80% of
all three strikers were under the age of 45 at the
time of their third strike, and all but 18 of them were
under 50 years of age. Findings that indicate elderly
prisoners are unlikely to reoffend as well as the
extraordinary costs of incarcerating the elderly are
important considerations for reform of Washington’s
three strikes law.

Age of Three Strikes Offenders at First Strike
100
90
80
70
60
50
40
30
20
10
0

Under 18

20-24

18-19

25-29

30-34

35-39

40-44

45-49

Age of Three Strikes Offenders at Third Strike
60
50
40
30
20
10
0

Under 20

20-24

25-29

30-34

35-39

40-44

45-49

50-54

55-59

60-65

55-59

60-64

65-69

70-75

Current Age of Three Strikes Offenders
50
40
30
20
10
0

25-29

30-35

35-39

40-44

45-49

50-54

10

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

Other Criminal Justice Costs
The costs of the three strikes law go beyond
incarceration in state prison facilities. For counties,
the costs include the expense of trials that may not
have occurred but for the risk of a strike conviction. 49
Before the three strikes law was passed, 19% of
defendants convicted of a strike offense went to
trial. After passage of the law the number of trials
drastically increased, with 63% of those convicted
of strike offenses now choosing to go to trial. That
number is even higher for the third strike, with 81%
of strikers choosing trial over pleas in third strike
cases where the stakes are higher. These trial rates
are far higher than in Washington criminal cases as a
whole, where only 4.7% of cases go to trial. 50 The high
number of three strikes defendants going to trial has
enormous cost repercussions for counties, as going
to trial involves significantly more costs per case in the
form of prosecutor time and resources, public defense
expenses, judicial time and resources, general court
costs, juror expenses, and pre-trial detention.

Prevention: A Cost
Benefit Analysis
Washington State should continually attempt to
appropriately balance the goals of incapacitation,
deterrence, and crime prevention. Washington
should strive to create a system that protects society
from those who pose a risk, while conserving public
resources by allowing for release of those who do not.
The current three strikes law does not accomplish this
and should be changed.
Recent studies indicate that spending money on
prevention is justified not only because of the
significant reductions in recidivism and corresponding
increases in public safety, but also due to the
economic benefit per dollar spent. For instance,
investments in vocational education in prison produce

Plea v. TrIAl Before
Three Strikes Law

90
80
70

81 %

60
50
40
30
20

19 %

10
0

11

Plea

Trial

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

a cost benefit of $20,714 per participant, and in
basic education for prisoners there is a $17,636 per
participant cost benefit. 51 Treatment programs also
save the state money in the long run. WSIPP has
estimated that the cost benefit of providing cognitive
behavioral therapy is $15,361 per participant, for
drug treatment in prison there is a cost benefit of
$12,715, and for drug treatment in the community
the cost benefit is $11,856. 52 WSIPP’s “economic

“Results from a Zogby International
poll released in April, 2006, show the
public’s support for protecting public
safety through better programming: 87
percent of Americans favor rehabilitative
services for prisoners as opposed to
punishment only.”
54

- The Commission on Safety and
Abuse in America’s Prisons

analysis for Washington indicates that evidencebased—and reasonably priced—programs that achieve
even relatively small reductions in crime can produce
attractive returns on investment.”53

Plea v. TrIAl After
Three Strikes Law

Plea v. Trial on Thrid Strike

90

90

80

80

70

70
60

60

63 %

50

50
40

40
30

37 %

30

20

20

10

10

0

82 %

Plea

Trial

0

18 %
Plea

Trial

12

Recommendations

Washington should reform the three strikes law so that
state resources are deployed to maximize returns by no
longer incarcerating those who do not pose a threat to
public safety and by reinvesting in prevention. Toward
that end, we make four suggestions:

for reconsideration of sentencing factors along with
evidence of rehabilitation and likelihood of recidivism.
Given the low education levels and prevalence of
mental illness among the three strikes population, the
panel should have discretion to appoint counsel for the
review hearing to ensure a full and accurate record for
review. The panel should consider all relevant factors
including, but not limited to:

1. Create a “second look” system
of review for three strikers
Washington should enact a “second look” provision
for three strikers, to allow for review of the life
sentence after the offender has served a designated
period of time. 55 The review process would create no
guarantees and would allow for release only where the
offender is no longer a risk to society.

•	
•	

Aggravating and mitigating factors or
circumstances related to the strike offenses;

•	

Input from the victim or victim’s family;

•	

Risk to public safety;

•	

The second look review should be conducted by
an independent panel made up of members of the
judiciary and/or professionals with expertise in criminal
law, mental health, and other factors relevant to risk
assessment and rehabilitation. The review should be
conducted at a predetermined time, which may be
based on the crime of conviction, but in any event
should take place within 15 years of the original
sentence. If release is not granted, the prisoner
should be able to reapply for subsequent review. This
review process should be sufficiently robust to allow

Crimes of strike convictions;

The amount of time already served and the age
of the prisoner;

•	

Record of conduct in prison;

•	

Participation in available rehabilitative programs; and

•	

Evidence of the offender’s ability to successfully
reenter society.

The reviewer should also consider factors such as
mental illness, developmental disabilities, and chemical
dependency not only in relation to the underlying
crime, but also in reviewing the individual’s successes
or failures during his term of incarceration.

“People change. Shouldn’t we recognize that change in the law? And
shouldn’t we allow an opportunity on a case by case basis to look for
the guys who really have changed?”
56

- Adam Kline, Washington State Senator,
Statement During Hearing in Support of Legislation that
Would Provide Review in Certain Three Strikes Cases

13

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

“It is not a just sentence. It is disproportionate to the harm that
was done to the community.”
57

- Dan Satterberg, King County Prosecuting Attorney,
Testimony to the Washington State Legislature in Support of Legislation
that Would Provide Review in Certain Three Strikes Cases

Consideration should also be given to the lack of
programming available for three strikers who are often
at the bottom of the list for programming due to the
length of their sentences—this could result in a dearth
of evidence of rehabilitation due not to a lack of desire,
but rather to a lack of opportunity.
Because there are relatively few three strikes offenders
and the staggered frequency by which they would
become eligible for review, there would be limited
costs associated with the implementation of a review
process. These costs would be especially low
considering that they would be offset by the savings
gained in the cost of incarceration for those who would
earn release.

If creation of a broad system of review is not
immediately feasible, however, Washington should at
a minimum enact a law allowing for review for those
three strikers serving life without parole who have been
convicted of the least serious offenses. This would
serve as a preliminary step toward greater reform of
the law.
2. Eliminate the least serious
felonies from the list of
strike offenses
Some of the crimes included in the list of strike
offenses encompass wide-ranging behavior, which
could involve neither violence nor physical injury. 58
Washington should take another look at strike offenses
to ensure that only the most serious behavior is subject
to such a severe sentence.

The mandatory sentence of life
in prison without the possibility
of parole fails to account for
the possibility of change. After
decades in prison, either as a
result of maturity, rehabilitation,
or both, an individual is likely to
dramatically change such that
“the original sentence imposed
may no longer be justifiable.”61

In the absence of the three strikes law, the vast
majority of those sentenced as three strikers would
be serving sentences far shorter than life. 59 This is
especially true for the least serious strike offenses.
Though the sentences would be shorter than life
in these cases were they removed from the list
of most serious offenses, even without the three
strikes law, current law requires that offenders with
multiple convictions be sentenced to long periods of
incarceration. Further, in cases where the standard
sentencing range is deemed insufficient, judges have
the discretion to depart upward from the standard
range to sentence an offender more appropriately,
for new cases and upon resentencing of former three
strikers. 60 In short, no one would be getting off easy.
Removing the least serious crimes from the list of

14

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

most serious offenses subject to the three strikes law
would result in cost savings by reducing the cost of
life sentences in lower level cases while continuing to
ensure appropriate deterrence for repeat offenders.
3. Amend the compassionate
release statute to reverse
exclusions based on
sentence length
Washington law allows for compassionate release for
inmates who are “currently physically incapacitated
due to age or [] medical condition or [are] expected
to be so at the time of release.”62 Although DOC’s
compassionate release program includes safeguards
to ensure that individuals who pose a risk to society
are not released, three strikes offenders are not
eligible for this program because they are sentenced
to life without the possibility of parole. 63
Given the extremely low risk of recidivism among
elderly and physically incapacitated people, the
prohibition on compassionate release of those
serving life in prison without the possibility of parole
is unnecessary. It is also extremely costly. The DOC
projects as many as 44 offenders could be released
under the current program between 2009 and 2011
at a cost savings of up to $1.5 million. 64 Given the
number of three strikers who are already elderly, and
the coming expense of their continued incarceration,
Washington lawmakers should expand this program to
include consideration for three strikes offenders.
Prisoners are not eligible to receive federal medical
benefits during their incarceration. 65 Therefore, the
state bears the entire burden of caring for elderly and

15

infirm prisoners. However, upon release, ex-offenders
are eligible for federal programs such as Medicare,
Medicaid, and veterans benefits, where applicable,
which offset the costs to the state. Further, for those
granted release under this program, some of the cost
would shift to prisoners’ family members to provide
care and housing for sick and elderly relatives.
Expansion of the compassionate release program
could save the state hundreds of thousands, if not
millions, of dollars biennially. 66
4. Reinvest Savings Stemming
from Reform in Prevention and
Rehabilitation Efforts
Implementing a system of review for three strikes
offenders will result in large cost savings to the
state. Those savings should be reinvested in three
ways: (1) prevention efforts; (2) increased access to
rehabilitative programming; and (3) reentry resources
and planning.
First, even modest investments in mental health
and chemical dependency treatment, education,
homelessness prevention, and other social services
can result in billions of dollars of savings to the state
and to victims in criminal justice costs and make our
communities safer. 67
Second, correctional policies that create barriers
to programming opportunities that would support
rehabilitation must be revised to encourage
rehabilitation and preparation for release. The lack
of opportunities to engage in positive programming
and the absence of a system of review “undermines
the incentive for reform and sends an inconsistent

Washington’s Three Strikes Law |

Public Safety & Cost Implications of Life Without Parole

“There are realistic limits to efforts at rehabilitation. We must try, however,
to bridge the gap between proper skepticism about rehabilitation on the
one hand and improper refusal to acknowledge that the more than two
million inmates in the United States are human beings whose minds and
spirits we must try to reach.”
68

- The Honorable Anthony M. Kennedy, U.S. Supreme Court Justice

message to persons in prison regarding how to
spend their years behind bars.”69 While three strikes
offenders who are eligible for review are serving their
sentences, they should be given the same priority
as other offenders for employment, education, and
treatment programs. This should include basic skills
education for everyone, and substance abuse and
mental health treatment for those who need it. Such
programs have been shown to reduce recidivism
significantly and save money.70 These programs help
offenders develop skills to manage issues that may
have contributed to their past criminal activity. Further,
increasing opportunities for rehabilitation will bolster
the ability of individuals to successfully reenter society.

need upon release. Three strikers who are granted
release under a review system should be provided
job training before their release and should be
connected with available resources in the community,
including housing, chemical dependency and mental
health treatment providers, education, and
potential employers.
Implementing these recommendations will help to
rebalance the criminal justice system in a way that
continues to ensure public safety, saves
state resources, and creates a more just
sentencing scheme.

Finally, savings should be invested in community
based reentry supports, many of which overlap with
preventative programming. As offenders near the
date of their review and potential release, careful
consideration should be given to services they will

16

1)	

RCW 9.94A.555; STATE OF WASHINGTON SENTENCING
GUIDELINES COMMISSION, A COMPREHENSIVE REVIEW AND
EVALUATION OF SENTENCING POLICY IN WASHINGTON STATE:
2000 – 2001 12 (2001) [hereinafter SENTENCING POLICY].

2)	

Wash Leg. Serv., Ch. 1, § 1 (2)(a)&(b) (1994); RCW 9.94A.555.

3)	

Wash Leg. Serv., Ch. 1, § 2 (1994); RCW 9.94A.555.

4)	

VINCENT SCHIRALDI, ET AL., THE JUSTICE POLICY INSTITUTE,
THREE STRIKES AND YOU’RE OUT: AN EXAMINATION OF THE
IMPACT OF 3-STRIKE LAWS 10 YEARS AFTER THEIR ENACTMENT
8 (2004).

5)	

JAMES AUSTIN, ET AL., “THREE STRIKES AND YOU’RE OUT” THE
IMPLEMENTATION AND IMPACT OF STRIKE LAWS 104 (National
Institute of Justice, U.S. Department of Justice, 1998).

6)	

SCHIRALDI, supra note 4, at 8.

7)	

Elsa Y. Chen, Impacts of “Three Strikes and You’re Out” on Crime
Trends in California and Throughout the United States, 24 J.
CONTEMP. CRIM. JUST. 345, 346 (2008); AUSTIN, supra note 5, at
104.

8)	

RCW 9.94A.030(36)(a); RCW 9.94A.030(31). Also considered a
“most serious offense” is any felony offense in effect prior to December
2, 1993 that is “comparable to a most serious offense” under current
law, and any federal or out-of-state offense that “under the laws
of this state would be classified as a most serious offense.” RCW
9.94A.030(31)(u). As of 1997, prior convictions for “indecent liberties”
are considered “most serious offenses,” with qualifications detailed
in RCW 9.94A.030(31)(v). In 2008, the legislature added to the list
of “most serious offenses” any out-of-state conviction for a felony
offense with a finding of sexual motivation, if the minimum sentence
imposed was ten years or more. RCW 9.94A.030(31)(w). In 1996, the
definition of “persistent offender” was amended to include two-strike
sex offenders. Thus, individuals convicted of “most serious offenses”
qualify as “persistent offenders” when they have only two, rather than
three, separate convictions for any of the following offenses: “(A) Rape
in the first degree, rape of a child in the first degree, child molestation
in the first degree, rape in the second degree, rape of a child in the
second degree, or indecent liberties by forcible compulsion; (B) any
of the following offenses with a finding of sexual motivation: Murder
in the first degree, murder in the second degree, homicide by abuse,
kidnapping in the first degree, kidnapping in the second degree, assault
in the first degree, assault in the second degree, assault of a child in the
first degree, assault of a child in the second degree, or burglary in the
first degree”; or an attempt to commit any of the offenses here listed.
RCW 9.94A.030(36)(b). For the purposes of this report, however, we
are only analyzing those sentenced under the three strikes provision of
the Persistent Offender Accountability Act.

9)	

The data and statistics related to offenders serving sentences under
the three strikes law are based on our review of the following: data
obtained from the Sentencing Guidelines Commission; court records of
three strikes offenders; correctional records of three strikes offenders;
information provided by three strikes offenders; appellate decisions;
and media reports. The number of offenders currently incarcerated
includes those sentenced under the three strikes law as of the end
of the 2009 fiscal year, less: those sentenced for Aggravated Murder
in the First Degree as a third strike because they would receive a
mandatory sentence of life in prison without the possibility of parole
on that conviction alone; those resentenced or released after appeal,
personal restraint petition, or through clemency; duplicate entries for
those sentenced more than once under the law; and those who are
deceased.

10)	

The Honorable Anthony M. Kennedy, Address at the American Bar
Association Annual Meeting (August 9, 2003), available at http://www.
supremecourtus.gov/publicinfo/speeches/sp_09-09-03.html.

11)	

Robert Han, Ph.D. et al., Effects on Violence of Laws and Policies
Facilitating the Transfer of Youth from the Juvenile to the Adult
Justice System: A Report on Recommendations of the Task Force on
Community Preventive Services, Vol. 56/RR-9 at 1 (Nov. 30, 2007)
(emphasis added). In Washington, youth may be tried as adults through
the declination process. For some crimes, treatment of youth age 16 or
over as adults is automatic. RCW 13.40.110.

12)	

There are only three female three strikes offenders in Washington. All of
the strikers who have strikes for crimes committed as juveniles are male.

13)	

ELIZABETH K. DRAKE, STEVE AOS, & MARNA G. MILLER, WASH.
ST. INST. FOR PUB. POL’Y, EVIDENCE-BASED PUBLIC POLICY
OPTIONS TO REDUCE CRIME AND CRIMINAL JUSTICE COSTS:
IMPLICATIONS IN WASHINGTON STATE 186-187 (2009) [hereinafter
POLICY OPTIONS].

14)	

E. FULLER TORREY, M.D., ET AL., NAT’L SHERIFFS’ ASS’N &
TREATMENT ADVOCACY CTR., MORE MENTALLY ILL PERSONS
ARE IN JAILS AND PRISONS THAN HOSPITALS: A SURVEY OF THE
STATES 1, Table 1 (2010).

15)	

PAULA M. DITTON, U.S. DEP’T OF JUST., BUREAU OF JUST. STATS.,
MENTAL HEALTH TREATMENT OF INMATES AND PROBATIONERS
5 (1999); id; see also id. at 1 (“About 53 percent of mentally ill inmates
were in prison for a violent offense” as of midyear 1998.); DORIS E.
JAMES & LAUREN E. GLAZE, U.S. DEP’T OF JUST., BUREAU OF
JUST. STATS., MENTAL HEALTH PROBLEMS OF PRISON AND
JAIL INMATES 7 (2006) (“State prisoners who had a mental health
problem (61%) were more likely than State prisoners without (56%)
to have a current or past violent offense . . . . Among repeat offenders,
an estimated 47% of State prisoners who had a mental health problem
were violent recidivists, compared to 39% of State prisoners without a
mental health problem.”).

16)	

ST. OF WASH. DEP’T OF CORRS., STRATEGIC PLAN: FISCAL
YEARS 2005-2011 4 (on file with author) [hereinafter STRATEGIC
PLAN].

17)	

See, e.g. STEVE AOS, ET AL., WASH. ST. INST. FOR PUB. POL’Y,
EVIDENCE-BASED ADULT CORRECTIONS PROGRAMS: WHAT
WORKS AND WHAT DOES NOT 3 (2006). Id. (estimating a reduction
in recidivism of 27.4 percent where mentally ill prisoners are housed
in therapeutic communities.); see also STEVE AOS, ET AL., WASH.
ST. INST. FOR PUB. POL’Y, EVIDENCE-BASED PUBLIC POLICY
OPTIONS TO REDUCE FUTURE PRISON CONSTRUCTION,
CRIMINAL JUSTICE COSTS, AND CRIME RATES 9 (2006).

18)	

POLICY OPTIONS, supra note 13, at 184.

19)	

Id.; STEVE AOS, ET AL., WASH. ST. INST. FOR PUB. POL’Y,
EVIDENCE-BASED TREATMENT OF ALCOHOL, DRUG, AND
MENTAL HEALTH DISORDERS: POTENTIAL BENEFITS, COSTS,
AND FISCAL IMPACTS FOR WASHINGTON STATE 4 (2006).

20)	

MARNA MILLER & IRENE NGUGI, WASH. ST. INST. FOR PUB. POL’Y,
IMPACTS OF HOUSING SUPPORTS: PERSONS WITH MENTAL
ILLNESS AND EX-OFFENDERS 2 (2009) [hereinafter IMPACTS OF
HOUSING SUPPORTS].

21)	

See, e.g., FACT SHEET: DRUG-RELATED CRIME, U.S. DEP’T OF
JUST., BUREAU OF JUST. STATS. 1 (1994) (“Drug use and crime are
common aspects of a deviant lifestyle. The likelihood and frequency of
involvement in illegal activity is increased because drug users may not
participate in the legitimate economy and are exposed to situations that
encourage crime.”) [hereinafter DRUG RELATED CRIME]; id. at 1-2
(drug users are more likely than non-users to commit crimes).

22)	

STRATEGIC PLAN, supra note 16, at 4.

23)	

DRUG-RELATED CRIME, supra note 21, at 3 (“Offenders often
commit offenses to support their drug habit.”); DORIS J. WILSON,
U.S. DEP’T OF JUST., BUREAU OF JUST. STATS., DRUG USE,
TESTING AND TREATMENT IN JAILS 2 (revised Sept. 29, 2000)
(“Nearly 1 in 6 convicted jail inmates commit crimes to get money
for drugs.”); CHRISTOPHER J. MUMOLA, U.S. DEP’T OF JUST.,
BUREAU OF JUST. STATS., SUBSTANCE ABUSE AND TREATMENT,
STATE AND FEDERAL PRISONERS 1997, 1 (1999) (“In 1997 …
about 1 in 6 of [all state and federal prisoners] reported committing
their offense to obtain money for drugs.”). See, e.g., WILSON, supra,
at 2 (36 percent of jail inmates were using illegal drugs at the time of
offense); MUMOLA, supra, at 1 (in 1997, 51 percent of prisoners in the
United States “reported the use of alcohol or drugs while committing
their offense.”); id. (in 1997: “37% of State prisoners were drinking
at the time of their offense.”); DRUG-RELATED CRIME, supra note
21, at 2-3 (“Incarcerated offenders were often under the influence of
drugs at the time of the offense.”); JEREMY TRAVIS ET AL., URBAN
INST. JUST. POLICY CENTER, FROM PRISON TO HOME: THE
DIMENSIONS AND CONSEQUENCES OF PRISONER REENTRY
25 (2001) (“[M]ore than half of state prisoners report that they were
using drugs or alcohol when they committed the offense that led to their
incarceration.”).

24)	

ST. OF WASH. DEP’T OF CORRS., THE DOC RE-ENTRY INITIATIVE:
SMART ON CRIME 7 (2006) [hereinafter RE-ENTRY INITIATIVE].

25)	

POLICY OPTIONS, supra note 13, at 184-185.

26)	

Mental and Substance Abuse Disorders Act, 2005 Wash. Laws, pg.
2340, ch. 504, § 101.

27)	

The link between homelessness and criminal activity is not fully known,
but some available statistics indicate that there is a connection. See
NINO RODRIGUEZ & BRENNER BROWN, VERA INST. OF JUST.,
PREVENTING HOMELESSNESS AMONG PEOPLE LEAVING
PRISON 4 (2003) (“According to a study by the federal Bureau of
Justice Statistics, 12 percent of state prisoners were homeless at
the time of their arrest, and the Interagency Council on the Homeless
has reported that 18 percent of all homeless people have spent time
in a state or federal prison. Moreover, among parolees who have
been reincarcerated, 19 percent were homeless upon their arrest.”).
The relationship between homelessness and crime appears to be
especially strong for the mentally ill; “[m]entally ill State prison inmates
were more than twice as likely as other inmates to report living on the
street or in a shelter in the 12 months prior to arrest (20% compared
to 9%).” DITTON, supra note 15, at 1. See also id. at 5 (“Mentally ill
offenders reported high rates of homelessness, unemployment, alcohol
and drug use, and physical and sexual abuse prior to their current
incarceration.”); Dale E. McNiel, Ph.D., et al., Incarceration Associated
With Homelessness, Mental Disorder, and Co-occurring Substance
Abuse, 56 PSYCHIATRIC SERVICES 840, 840-41 (2005).

28)	

McNiel, supra note 27, at 843.

29)	

Id.

30)	

IMPACTS OF HOUSING SUPPORTS, supra note 20, at 2.

31)	

According to the Department of Corrections “[a]s of October 31, 2005,
only 18 percent of offenders had verified high school diplomas and 47
percent had General Education Development (GED) certificates.” REENTRY INITIATIVE, supra note 24, at 4.

32)	

BETH A. COLGAN, TEACHING A PRISONER TO FISH: GETTING
TOUGH ON CRIME BY PREPARING PRISONERS TO REENTER
SOCIETY, 5 Sea. J. Soc. Justice 293, 298 (2006) (citing CAROLINE
WOLF HARLOW, PH.D., U.S. DEP’T OF JUST., BUREAU OF JUST.
STATS., EDUCATION AND CORRECTIONAL POPULATIONS
2 (revised April 15, 2003)); ALLEN J. BECK, PH.D. & BERNARD
E. SHIPLEY, U.S. DEP’T OF JUST., BUREAU OF JUST. STATS.,
RECIDIVISM OF PRISONERS RELEASED IN 1983 1 (1989).

33)	

See BECK, supra note 32, at 5.

34)	

POLICY OPTIONS, supra note 13, at 184, 187.

35)	

See Washington Joint Task Force on Offenders Programs, Sentencing
& Supervision, Report & Recommendation to the Washington
State Legislature (Nov. 2006); AUDREY BAZOS & JESSICA
HAUSMAN, UCLA SCH. OF PUB. POL’Y AND SOC. RESEARCH,
CORRECTIONAL EDUCATION AS A CRIME CONTROL PROGRAM
3 (2004) (citing P.M. HARRISON & A.J. BECK, U.S. DEP’T OF JUST.,
BUREAU OF JUST. STATS., PRISONERS IN 2002 (2002)).

44)	

Timothy Curtin, The Continuing Problem of America's Aging
Prison Population and the Search for a Cost-Effective and Socially
Acceptable Means of Addressing It, 15 ELDER L.J. 474, 475 (2007).

45)	

Id.

46)	

See, e.g., Ronald H. Aday, Aging Prisoners: Crisis in American
Corrections 212 (Praeger Publishers 2003).

47)	

Id.

48)	

ELIZABETH DRAKE, STEVE AOS, & ROBERT BARNOSKI,
WASH. ST. INST. FOR PUB. POL’Y, WASHINGTON'S OFFENDER
ACCOUNTABILITY ACT: FINAL REPORT ON RECIDIVISM
OUTCOMES Exhibit D (2010).

49)	

Data on plea information was largely unavailable for out of state strike
convictions. Therefore those strikes are excluded from the data in this
section. Likewise, the few cases where state conviction records did not
indicate whether an individual pled or went to trial are also excluded
from the data set.

50)	

See Washington State Courts, Superior Court Annual Caseload
Reports, at http://www.courts.wa.gov/caseload/?fa = caseload.showIn
dex&level = s&freq = a&tab = criminal.

51)	

THE COMM’N ON SAFETY AND ABUSE IN AMERICA’S PRISONS,
CONFRONTING CONFINEMENT 12 (2006).

52)	

POLICY OPTIONS, supra note 13, at 184.

53)	

Id. at 184-85.

54)	

Id. at 194.

55)	

The recommendations in this section are based largely on a draft
proposal by the American Law Institute, an independent and highly
respected organization producing model statutes and other influential
legal works, which at the time of publication was finalizing revisions to
the Model Penal Code related to sentencing reforms. See American
Law Institute, Model Penal Code: Sentencing, Discussion Draft No.
3 (March 29, 2010). The American Law institute describes itself as
“the leading independent organization in the United States producing
scholarly work to clarify, modernize, and otherwise improve the law.
The Institute (made up of 4000 lawyers, judges, and law professors
of the highest qualifications) drafts, discusses, revises, and publishes
Restatements of the Law, model statutes, and principles of law that
are enormously influential in the courts and legislatures, as well as
in legal scholarship and education.” (at http://www.ali.org/index.
cfm?fuseaction = about.overview).

56)	

An Act Relating to Persistent Offenders: Hearing on SB 5236 Before
the Senate Judiciary Comm., 2011 Leg., 62nd Sess. (Wash. 2011)
(statement of Sen. Adam Kline, Chair, Sen. Judiciary Comm.).

57)	

An Act Relating to Persistent Offenders: Hearing on SB 5236 Before
the Senate Judiciary Comm., 2011 Leg., 62nd Sess. (Wash. 2011)
(statement of Dan Satterberg, King County Prosecuting Attorney).

58)	

See, SENTENCING POLICY, supra note 1, at 15.

59)	

Ashley Nellis, Throwing Away the Key: The Expansion of Life Without
Parole Sentences in the United States, 23 FED. SENT. REP. 27,
29 (2010) (discussing California’s three-strikes law) [hereinafter
Expansion of Life Without Parole].

60)	

RCW 9.94A.535.

61)	

Margaret Colgate Love, Sentence Reduction Mechanisms in a
Determinate Sentencing System: Report of the Second Look
Roundtable, 21 FED. SENT. REP. 211, 212 (2009); see Expansion of
Life Without Parole, supra note 59, at 36.

36)	

Judge Robert T. Russell, Veterans Treatment Court: A Proactive
Approach, 35 NEW ENG. J. ON CRIM. AND CIV. CONFINEMENT 357,
362 (2009).

37)	

U.S. Census Bureau, Washington Quickfacts, at http://quickfacts.
census.gov/qfd/states/53000.html.

38)	

Farrakhan v. Gregoire, 590 F.3d 989, 1009-10 (9th Cir. 2010),
overruled en banc, 623 F.3d 990 (9th Cir. 2010).

39)	

SENTENCING POLICY, supra note 1, at 62-63.

62)	

RCW 9.94A.728 (3)(a)(ii).

40)	

SENTENCING POLICY, supra note 1, at 62-63.

63)	

41)	

U.S. Dept. of Justice, Federal Bureau of Investigation, Crime in the
United States, 2009: Table 38 – Arrests by Age (2010), available at
http://www2.fbi.gov/ucr/cius2009/data/table_38.html.

See, DOC Policy 350.270, Extraordinary Medical Placement, § III;
RCW 9.94A.728 (3)(b).

64)	

CHIU, supra note 42, at 9.

65)	

42 U.S.C. § 1396d(a)(27)(A); 42 C.F.R. § 435.1008.

42)	

43)	

TINA CHIU, VERA INST. OF JUST., IT'S ABOUT TIME: AGING
PRISONERS, INCREASING COSTS, AND GERIATRIC RELEASE,
CENTER ON SENTENCING AND AGING CORRECTIONS 4 (2010).
SENTENCING POLICY, supra note 1, at 62-63.

66)	

See, SENTENCING POLICY, supra note 1, at 62-63.

67)	

Kennedy, supra note 10.

68)	

POLICY OPTIONS, supra note 13, at 184-89.

69)	

Expansion of Life Without Parole, supra note 59, at 36.

70)	

POLICY OPTIONS, supra note 13, at 184-85.

ACKNOWLEDGEMENTS:
This report was authored by Melissa Lee with assistance from Beth Colgan. The study
detailed in this report would not have been possible without the pro bono efforts of
numerous Washington attorneys and legal staff who undertook the task of reviewing the
court records and correctional files of the 229 prisoners serving life without the possibility
of parole under the three strikes law, engaged in research necessary for this report and
assisted in editing this report. Perkins Coie and Columbia Legal Services would like to
thank Stephanie Boehl, Jessica Brown, Sonia Cook, Robin Dean, Miriam D’Jaen, Dan
Ford, Ryan Glant, Maureen Janega, Judy Kadoura, Salmun Kazerounian, Jackie Lasaracina,
Ashley Locke, John Midgley, Justin Moon, Adrienne Neff, Will Rava, and Willie White for
their invaluable contributions.
Perkins Coie and Columbia Legal Services also give special thanks to Beverly Kershaw and
Jeanenne Rutherford for gathering and maintaining records pertinent to this effort, and to
Tommy James and Cheryl Patterson for their important contributions.

 

 

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