SEATTLE — Recent reforms to Washington’s three-strikes law have done little to address the disproportionate impacts of the law on Black and Indigenous people, a new report found.
Researchers argue that instead of exclusively incarcerating the state’s most dangerous repeat criminals for life without parole, the law also sweeps up lower-level offenders and provides them no avenue for rehabilitation or redemption. The report was copublished by Seattle University School of Law’s Civil Rights Clinic and the Fred T. Korematsu Center for Law and Equality this month.
The three-strikes law — one of the country’s strictest sentencing laws — is among the starkest examples of deep-seated institutional racism in court, the report found, and is “out of step with our evolving standards of decency.”
A voter initiative approved in 1993 made Washington the first state in the country to establish a so-called “Three Strikes, You’re Out” law, mandating that a person convicted of certain offenses on three separate occasions would be automatically sentenced to life in prison without the possibility of parole.
As part of an emerging effort in recent years to reassess past “tough-on-crime” approaches, the law was changed in 2019 to remove second-degree robbery from the list of strikeable offenses. Two years later, it became retroactive for people who had “struck out” at least in part because of a second-degree robbery conviction.
Before second-degree robbery was dropped, 41% of people who received three-strikes sentences were Black, researchers found. When it was removed, the number of sentences imposed dropped from 469 to 270, but racial disparities persist. Black people now make up just over 37% of those 270 sentences, researchers found.
Researchers stressed the figures, which don’t align with violent crime rates among Black people, reflect widespread implicit bias and racial discrimination in law enforcement and legal system practices.
“The heart of why we wrote this report is getting people to understand the devastating racial impact of this law,” co-author Jessica Levin said in an interview. “Even if we continue in a piecemeal way to shrink the strike list, no matter how much we shrink it, we’re still going to have this racially disproportionate reality.”
Under the current law, a majority of the strike-eligible crimes are for the most serious of violent offenses, such as rape and murder, while others are for less serious offenses, such as second-degree assault and first-degree burglary. Eligible offenses committed when a person was under 18 also count toward a strike, despite growing acceptance in courts that young people are less culpable than adults for criminal behavior, based on neuroscience that’s shown brains aren’t fully developed until people are in their 20s.
Supporters of the three-strikes law argue it is an effective crime deterrent that appropriately targets repeat, violent offenders and has led to communities becoming safer.
“When it comes to race and disproportionality in the criminal justice system, academics, activists and elected officials on the progressive left focus on violent offenders,” said John Carlson, who led the initiative campaign for the law, in a statement. “Their focus should be on victims. People of color are far more likely to be the victims of crime, particularly violent crime, which means they suffer more when it gets worse.”
Reviewing demographic data up to September 2023, researchers found Black people represent 37.4% of all three-strikes sentences in Washington.
In comparison, Black people make up 4.6% of the state population and 17.6% of the state’s prison population. Between 1999 and 2020, Black people made up 11.3% of aggravated murder sentences and 17.1% of violent offense sentences.
Indigenous people are also overrepresented in three-strikes sentences, researchers found, making up about 4% of three-strikes sentences but 2% of the state’s population and 2.2% of violent offense sentences between 1999 and 2020.
Melissa Lee, who co-authored the report, hypothesized the racial disparity can be attributed to people of color being stopped by law enforcement at higher rates, which has been well documented, as well as prosecutors’ discretion over which charges to pursue — processes steeped in systemic racism and implicit bias.
“Supporters of the law really leaned into the idea that this would lock up the worst of the worst, when the law [went] far further than that,” said Lee, who serves as assistant director and co-director of the center and clinic respectively.
Given the widespread racial disproportionality and the extreme punishment, the report recommends repealing the law. The state’s existing sentencing structure — which takes into account criminal history and the seriousness of offense in sentencing — would sufficiently keep dangerous people behind bars even without the three-strikes law, Lee said.
“So much rhetoric is that suddenly dangerous people will be out on the streets,” said Levin, who serves as the clinic’s co-director and the center’s assistant director. “Getting rid of this law would be a huge step in the direction of justice that would leave the rest of sentencing laws intact.”
Repealing the state’s three-strikes law would cause more harm than good, defenders argue. Carlson noted murder rates and violent crime plummeted in the years following the passage of the three-strikes law. He pointed to “progressive policies” in recent years to explain the state’s recent uptick in homicides and violent crime — a trend seen nationwide during the pandemic that has begun to subside, according to FBI data.
Studies from the 1990s and early 2000s reviewing states that passed persistent offender laws and crime trends did not find a statistically significant difference attributable to the laws, and research has shown little evidence that two- and three-strikes laws reduced crimes by deterring potential criminals or incapacitating repeat offenders. Some studies have found other factors, such as alcohol consumption and unemployment, are stronger predictors of crime trends.
Dozens of states, including Washington, have started to ease mandatory sentencing laws, as elected officials, law enforcement, prosecutors, legal system experts and the public at large rethink the efficacy, ethics and racial disparity of two- and three-strikes laws.
In some states, the list of crimes that constitute a strike is relatively narrow, and judges have discretion on sentencing decisions even if a person is convicted of their third strike.
“Looking at that national landscape, we’re left with the conclusion that we have a law that is way overly broad and imposes the harshest punishment,” Levin said.
Outright repealing the law would likely not be politically feasible, so researchers also recommend giving people with three-strikes sentences an opportunity for release after their case is reviewed, giving judges more discretion and removing some crimes from the list of strikeable offenses, such as those committed by juveniles.
