Washington Courts: Judicial News Report Detail

Sentencing Report Too Late, Too Little

I am holding the single most useless government document I have ever come across, and...I have come across a lot of them in my lifetime."

Those were the words Seattle talk-show host and conservative think-tank president John Carlson used to express his displeasure with the 1996 Adult Felony Sentencing report, published by the state Sentencing Guidelines Commission last December. Carlson's remarks came during testimony at a hearing of the Senate Law and Justice Committee held late last month. Carlson didn't attend the Olympia meeting in person--he phoned in his testimony from Seattle via a special, electronic hook-up--but had plenty to say about the mandated, first-ever report on sentencing practices of Washington's superior court judges.

Concerns

A major proponent of Initiative 159, the "hard time for armed crime" measure approved by voters in 1995, which specifies publication of annual reports of how judges sentence, Carlson voiced two principal concerns: the timing of the report, which was released after the 1996 general elections, and what he felt were holes in the information presented in the report itself.

"My request to the committee today is that the Legislature specifically direct the Sentencing Guidelines Commission to report the sentencing practices of judges--within the sentencing grid--by September of each year," Carlson said.

"The reason for this is very simple. We elect not just the legislative and executive branch of government...we also get to vote on the judicial branch of government. While every member of this committee is on the record and has their votes recorded and reported, so that people can tell where they stand on the political spectrum--conservative, liberal, right-wing, left-wing, moderate--we don't know this about judges."

Carlson said the intent of the initiative was to give voters what he said they wanted to know--whether judges are liberal or conservative in their sentencing practices.

Contents of the report

The committee's new chair, Sen. Pam Roach (R-Auburn), agreed. "What I would like to point out to the committee, is the difference in how the Sentencing Guidelines Commission started out in it's reporting on judges, and where it evolved--which was a much-less specific accounting of the judges' activity."

Roach referred to a Commission workgroup memo written last August, which she said showed a preliminary draft of the report's contents. "In this case, we see that this particular judge sits in four counties, and on this chart we see the case number, what they have been charged with, whether or not this was a standard range, (or) first-time offender waiver. Then we (see) the actual sentence that was given by the judge, and then we see the standard range--in other words, the (range of) possibilities. We (were) getting quite a bit (in the earlier version)," she said.

Pointing to the final version, Roach said, "Someone has made the decision to give the public less."

Commission responds

Because Carlson's telephone testimony came near the end of the hearing, Commission members had no opportunity to respond to his comments. But they did interact with Roach and other members of her committee.

Commission chair Hubert Locke explained his group's intent in producing the report, then responded to Roach's contention the Commission report supplied less information than originally projected.

"Senator, one of the concerns that has guided the Commission...is that this report complied with the law...we tried to be scrupulously accurate in making certain that the report contains what the law provides...(that) this report be one that is accurate, complete, and has a certain integrity about it that does not permit the information it contains to give a distorted view of what the sentencing practices are in this state, and in the judicial system.

"This work group...wrestled continuously with this problem of how to display the information in a form that would be accurate, complete, but that also wouldn't lend itself to distortion. The report reflects what the work group thought would be the best answer to that question, and that's what we've placed before you."

Judicial independence

Sen. Adam Kline, (D, Seattle) asked how the Commission came to "a reasonable degree of certainty or detail" in its report. "Is your definition, or use of the term reasonable' colored by the rule that judges should be somewhat insulated from political considerations and that sentencing and the adherence to the sentencing guidelines has been a strong political consideration in the past couple of years?"

"It is, I think, a decision that the citizens of this state should all take into account," Locke responded. "I must say it did not affect the work before the Commission. We simply tried to follow a statute as it was written."

"I think a serious problem we all face in terms of the impact of Initiative 159 is precisely this question of how much the state's judiciary, which has already been constrained severely by the Sentencing Reform Act...enjoy the discretionary power they once had before the Sentencing Reform Act was passed. Now that judges sentence within that criteria--how much then, should they be subject to be held up to even more public scrutiny, if it appears their sentencing practices don't accord with what the public at any given point might happen to think is a proper sentence."

"That, it seems to me, is a very serious public policy issue. It is not one --in my own opinion--that I think is adequately addressed either by the 159 Initiative...(or)....this report...I must say it is one that I feel cannot be resolved legislatively."

Prosecutor information

Several senators showed interest in seeing a similar report on county prosecutors.

"It seems to me that while we are splitting hairs with judges...that maybe there is more at issue about prosecutor discretion, and how they charge things or, for that matter, their ability to get convictions," said Senator Jim Hardgrove (D, Hoquiam).
"Senator, I think you make an excellent point," said Richard Van Wagenen, Commission executive director.

"In terms of the mechanics of how you would go about that, my best idea would be that you would do that at the county level, with a report from the prosecuting attorney that would be published in the county itself."

Flare-up

Near the end of the hearing, tempers flared when Carlson insinuated Commission members had been against the initiative from the start.

"I'm guessing that probably two-thirds of the Sentencing Guidelines Commission members probably opposed hard time for armed crime,'" Carlson declared. "It became very clear that...the Commission pulled a fast one. I believe it took advantage of the leeway it had to subvert the clear intent of the initiative."

But Senator Darlene Fairley (D, Seattle) took exception to that assumption.
"I totally disagree with any hint that the Sentencing Guidelines Commission is on purpose doing something to subvert an initiative that has been put into place," Fairley said.

"I (also) disagree with your basic premise. What you are saying in essence is that judges are, in fact, and should be considered as politicians. What the public looks for, and what they constantly tell me that they are interested in, is fairness and integrity."

The senate committee took no votes during its meeting.