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Why Washingtonâ•Žs Deadly Weapon Criminal Sentencing Enhancement

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Why Washingtonâ•Žs Deadly Weapon Criminal Sentencing Enhancement COMMENTS Dead Wrong: Why Washington’s Deadly Weapon Criminal Sentencing Enhancement Needs “Enhancement” James Harlan Corning* “Let it be said that I am right rather than consistent.”1 – Justice John Marshall Harlan I. INTRODUCTION The early 1990s saw a sharp increase in gun violence directed to- ward Washington’s law enforcement community.2 In the summer of 1994, the Puget Sound region was stunned by three separate, unrelated acts of violence against police officers and their families. On June 4th of that year, Seattle Police Detective Antonio Terry was gunned down on * J.D. Candidate, Seattle University School of Law, 2012; B.A., Social Sciences, University of Washington. I am profoundly grateful to Professor Laurel Oates, who inspired this Comment through a fascinating legal-writing assignment in my first semester of law school and who has con- stantly encouraged, mentored, and advised me during my law school journey. I am deeply indebted to the staff of the Seattle University Law Review for their support; in particular, I thank Mike Costel- lo, Joan Miller, Jacob Stender, Kyle Trethewey, and many others for giving so much time and effort to this piece. Lastly, I thank my incredible family and friends—and especially my wonderful fiancé, Eric Wolf—for their unwavering love, support, encouragement, and patience in all things. 1. Quoted in TINSLEY E. YARBROUGH, JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN 77 (1995). 2. Ignacio Lobos, Deputy’s Death Another Reminder of Dangers of Law Enforcement Jobs, SEATTLE TIMES, Aug. 17, 1994, http://community.seattletimes.nwsource.com/archive/?date=1994 0817&slug=1925831. Between 1990 and 1993, the number of firearm-related assaults against Wash- ington police officers rose 56%, from forty-three to sixty-seven. Id. 911 912 Seattle University Law Review [Vol. 35:911 Interstate 5 as he tried to aid a stranded motorist.3 Just two weeks later, Dennis Griswold, a Tacoma tavern owner and the father of Tacoma Po- lice Officer Danielle Griswold, was robbed and shot to death.4 And on August 15th, Snohomish County Sergeant Jim Kinard was shot and killed as he responded to a reported homicide.5 In response to this wave of lethal attacks—and convinced that “[c]urrent law [did] not sufficiently stigmatize the carrying and use of deadly weapons by criminals”6—the law enforcement community and the victims’ family members proposed an initiative to the state legisla- ture. Initiative 159, the “Hard Time for Armed Crime” Act (HTACA), significantly increased the penalties for criminals who committed crimes while armed with a deadly weapon7—particularly firearms.8 Believing these harsh sanctions would “[r]educe the number of armed offenders by making the carrying and using of the deadly weapon not worth the sen- tence received upon conviction,”9 the legislature promptly enacted the HTACA, and the new law took effect on July 23, 1995.10 The HTACA significantly altered the “deadly weapon sentencing enhancement,”11 a provision of Washington’s felony sentencing guide- 3. Daryl Strickland et al., Gun Found Near Site of Officer’s Slaying—Three Men Held; Police Still Trying To Explain Shooting, SEATTLE TIMES, June 6, 1994, http://community.seattletimes. nwsource.com/archive/?date=19940606&slug=1914252. 4. Tavern Owner Shot to Death, SEATTLE TIMES, June 19, 1994, http://community.seattletimes. nwsource.com/archive/?date=19940619&slug=1916377. 5. Karen Alexander, Note Was Written By Suspect, SEATTLE TIMES, Aug. 20, 1994, http:// community.seattletimes.nwsource.com/archive/?date=19940820&slug=1926200. 6. Hard Time for Armed Crime Act, ch. 129, § 1, 1995 Wash. Sess. Laws 443, 444 (findings and intent). 7. Daryl Strickland, ‘Hard Time’ Initiative Lacks 20,000 Signatures—Terms Would Increase For Armed Criminals, SEATTLE TIMES, Dec. 8, 1994, http://community.seattletimes.nwsource.com/ archive/?date=19941208&slug=1946010. 8. Compare Hard Time for Armed Crime Act § 2, 1995 Wash. Sess. Laws at 446 (codified at WASH. REV. CODE § 9.94A.310(3)(a–c) (1996)) (penalties for being armed with a firearm), with id., 1995 Wash. Sess. Laws at 447 (codified at WASH. REV. CODE § 9.94A.310(4)(a–c) (1996)) (penal- ties for being armed with a deadly weapon other than a firearm). 9. Hard Time for Armed Crime Act § 1, 1995 Wash. Sess. Laws at 444 (findings and intent). 10. 1995 FINAL LEGISLATIVE REPORT, Leg. 54-I159, Reg. Sess., at 1 (Wash. 1995). 11. The deadly weapon sentencing enhancement has been recodified several times since its enactment in 1983, but the enhancement has always consisted of two principal statutory elements: a definitions statute and a penalty statute. The definitions statute defines the term “deadly weapon,” and it sets forth a process by which a prison sentence may be “enhanced” (or lengthened) when an offender possesses a deadly weapon during a crime. WASH. REV. CODE § 9.94A.125 (1984) (codi- fied at WASH. REV. CODE § 9.94A.825 (2011)). The penalty statute creates two separate “levels” of enhancement—one specifically for firearms and one for all other deadly weapons—and it imposes additional prison time that must be added to an offender’s prison sentence when that offender was armed during the commission of a crime. WASH. REV. CODE § 9.94A.510 (1984) (codified at WASH. REV. CODE § 9.94A.533 (2011)). 2012] Dead Wrong 913 lines that had remained largely unnoticed since enactment in 1984.12 The enhancement required courts to add a predetermined amount of time to a prison sentence for certain felony convictions (“predicate offenses”) whenever a defendant was charged and convicted of committing the crime while armed with a deadly weapon.13 But as originally enacted, the deadly weapon enhancement applied only in restrictive circumstances. The list of deadly weapons was statutorily defined,14 as was the list of felonies that could be “enhanced.”15 Further, the State was required to show that the weapon was “easily accessible or readily available” for either offensive or defensive use during the crime.16 The HTACA dramatically expanded the scope and effect of the deadly weapon enhancement. It applied the enhancement to nearly all felonies,17 well beyond the small list of predicate offenses already subject to enhancement (namely rape, robbery, kidnapping, and burglary).18 Fur- thermore, under the HTACA, all deadly weapon enhancements became mandatory,19 thus denying trial courts any ability to suspend a portion of the enhanced sentence. Moreover, the HTACA required all enhance- ments to be served in total confinement and consecutively to all other prison sentences.20 Shortly after the HTACA took effect—and apparently in response to the HTACA’s sweeping changes and the expanded scope of the en- hancement21—the Washington Court of Appeals imposed a significant new restriction on the enhancement.22 Supplementing the previous re- quirement that a weapon must be easily accessible and readily available, the court also required a nexus between the defendant, the weapon, and the crime as a predicate to finding the defendant “armed.”23 But the vari- 12. Washington was one of the first states to enact a determinate sentencing scheme for felony convictions, which it accomplished in several steps between 1981 and 1983. See infra notes 39–42 and accompanying text. As originally enacted, the deadly weapon sentencing enhancement provision existed as a mere footnote to the sentencing grid. See infra note 43 and accompanying text. 13. See WASH. REV. CODE § 9.94A.510 (1984) (note following sentencing table). 14. § 9.94A.125 (1984). 15. § 9.94A.510 (1984) (note following sentencing table). 16. State v. Sabala, 723 P.2d 5, 8 (Wash. Ct. App. 1986). 17. See Hard Time for Armed Crime Act, ch. 129, § 2, 1995 Wash. Sess. Laws 443, 446 (codi- fied at WASH. REV. CODE § 9.94A.310(3)(a)–(c) (1996)). The Act extended the enhancement to apply to nearly all felonies. Id. The severity of the additional prison sentence varied based on the statutory classification of the felony (A, B, or C). Id.; see also infra note 55 and accompanying text. 18. See § 9.94A.510 (1984) (note following sentencing table). 19. Hard Time for Armed Crime Act § 2, 1995 Wash. Sess. Laws at 446–47 (codified at WASH. REV. CODE § 9.94A.310(3)(e), (4)(e) (1996)). 20. Id.; see also infra notes 58–60 and accompanying text. 21. See infra note 92 and accompanying text. 22. See infra Part II.B.2; see also State v. Mills, 907 P.2d 316 (Wash. Ct. App. 1995). 23. Mills, 907 P.2d at 318. 914 Seattle University Law Review [Vol. 35:911 ous divisions of the court of appeals initially disagreed on how to proper- ly apply this “nexus” test.24 And despite frequent attempts to clarify the nature of the nexus test, the Washington State Supreme Court instead cast further doubt on the scope of the nexus test with each subsequent decision.25 In 2007, after more than a decade of struggling to adequately ex- plain to lower courts how to apply the nexus test, the Washington State Supreme Court granted review in State v. Brown,26 ostensibly to clarify the test yet again. Instead, by a narrow five-to-four majority, the court implicitly found the nexus test to be no longer sufficient.27 To supple- ment the nexus test, the court announced a new “intent” test, requiring the State to establish that the defendant intended to use the weapon in furtherance of the crime.28 Since the HTACA’s passage in 1995, the deadly weapon sentencing enhancement has suffered from three major flaws. First, each formula- tion of the enhancement’s “armed” requirement—the original “easily accessible” test, the nexus test, and Brown’s new intent test—suffers from serious constitutional or practical defects.29 Second, the continuing doctrinal shifts by Washington’s courts arise from a mistaken belief that a one-size-fits-all approach to the enhancement is best; on the contrary, a more nuanced approach is plainly required.30 Finally, because the en- hancement is overbroad, prosecutors can (and have) improperly relied on the enhancement to compel plea bargains and seek lengthier sentences for conduct the HTACA never intended to stigmatize.31 This Comment confronts the difficult question of how to reformu- late the deadly weapon sentencing enhancement to better align it with the policy goals of deterring and punishing armed crime.
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