Prosecutor Admits Possible Injustice in the “Three-Strikes” Law.

In an office down the hall from King County Prosecutor Dan Satterberg sits a pile of boxes full of case files more than a decade old. Each file contains the record of someone sent to prison for life without the possibility of parole, as stipulated by the nation's first "three strikes and you're out" initiative, which became law here in 1993. A few months ago, as Satterberg took office, he ordered his staff to pull the files from his office's warehouse and begin plowing through them to see if any had produced an unjust result.

"Some of these cases don't deserve a life sentence," Satterberg says, though he adds it's too early to talk about specific defendants. He's assigned three deputies to review the first 20 cases handled under the law, and he intends to encourage and support clemency petitions for defendants he feels have received excessively harsh sentences. He may take on more cases after that. As of March 2007, 96 individuals had been sentenced to life under three-strikes in King County.

Meanwhile, prosecutors elsewhere in Washington have talked with state Sen. Adam Kline, D-Seattle, a longtime three-strikes critic, about the possibility of similarly reviewing old cases, Kline and several prosecutors say. While few prosecutors seem primed to take as active a role as Satterberg, Kitsap County Prosecutor Russ Hauge says he and his counterparts are open to looking at cases brought to their attention.

It's the first sign of any movement in the three-strikes debate, which so far has consisted of Kline and social justice groups vainly trying to get revisions of the law through the Legislature.

In actual courtroom practice, it appears the ground has been shifting on three-strikes for some time. In a study of such cases from 2003 through 2007, the King County Office of Public Defense found that 92 percent of defendants charged with a third strike ultimately received a sentence less severe than life without the possibility of parole. Usually, that happened through a plea bargain. The figures suggest to defense attorney Jeff Ellis that "nobody believes the law as written is fair." Not even prosecutors.

Satterberg stops short of saying that. But he acknowledges, "We have changed our approach. At the time that [Initiative 593] went into effect, it had some really strong language that I think was an attempt to limit the discretion everybody had." The initiative said persistent offenders "shall" be sentenced to life without parole.

Over time, however, Satterberg says, his office came to realize it still had discretion over how to charge defendants. Not every crime eligible to be counted as a strike has to be filed that way. That's particularly true for second-degree robbery. It's the lowest-level crime to be labeled a strike and yet the one that puts the most people away under three strikes, according to statistics from the state Sentencing Guidelines Commission. "Robbery 2" applies to the taking of something by threat or use of force. Injury needn't result.

Satterberg says robbery 2—and to some extent "assault 2," a term used for cases of "substantial bodily harm"—"can apply to a wide range of conduct, some very serious, some not." He notes, too, that "before three strikes, your third robbery 2 would net you about 18 months in prison. Now it's life." And so, his office these days will frequently substitute a nonstrike charge of, say, "theft 1."

"You won't find any cases in the last five, six years where all three [strikes] are robbery 2s," Satterberg says. But you will find some from years past, which is why Satterberg says he is reviewing old files.

Take the case of Seattleite Stevan Dozier. He struck out in 1994 on a third second-degree robbery that amounted to a purse snatching, according to Ellis, his attorney. As Dozier grabbed the purse, he punched or pushed the victim in the face (court records cited by Ellis don't say which), and she fell. Today, Ellis says, "it's almost certain he would be offered some kind of deal." It's one case he hopes Satterberg might take up.

In a more recent case, another client of Ellis, Darnell Crawford, struck out in Pierce County after he grabbed an MP3 player out of an electronics store. Followed by store staff into the street, he pulled a gun and told everyone to back off before hopping into a waiting car, only to be later caught by the police. He had a string of convictions in his past, two of which were determined to be strikes: one for robbery and one for sexual abuse of a minor, committed while living in Kentucky.

Still, Ellis thinks prosecutors might have engaged in serious plea negotiations—if they had realized that Crawford was a three-strikes case. They did not, given that one offense was committed in Kentucky, nor did Crawford's then defense attorney, according to Ellis and a state Supreme Court ruling that nonetheless upheld Crawford's sentence. Only after the trial did Crawford learn that he faced life.

Ellis is trying to get Crawford a break through the courts, where he has filed a "personal restraint petition," essentially an appeal. But Pierce County Prosecutor Gerald Horne won't be reviewing Crawford's or any other case of his own accord. There's no need, he says, since his office has always exercised discretion over how to charge cases. If anybody feels a case is unjust, he says, he'll look at it. "But I don't think you'll find one of them here." As for Crawford, he says he doesn't know what plea offers may have been made, but he doesn't want a "career criminal" back on the street. Hauge, the Kitsap County prosecutor, similarly doesn't think it necessary to dig into his old files.