We need to rethink 'three strikes,' justice says, as she and colleagues uphold the law

The Washington Supreme Court has unanimously upheld the state’s “three strikes” sentencing law, even for people who commit their first strike as young adults.

But Justice Mary Yu also described “growing discomfort” with the “routine practice” of issuing mandatory life sentences.

In a concurring opinion, Yu said now that the court has struck down the death penalty, life without the possibility of parole is the most severe sentence possible in Washington state and as such merits a "serious reexamination" of its own.

“Like the death penalty, a life sentence without the possibility of parole is the deprivation of hope,” she said.

Yu said every convicted defendant should have an opportunity for release and to demonstrate their rehabilitation and transformation.

“We should join the national movement favoring release upon a showing of rehabilitation and inject into our sentencing practices the exercise of mercy, compassion, and the fact that we know not a person's capacity to change," Yu said.

"As Shakespeare so eloquently put it, 'And earthly power doth then show likest God's/When mercy seasons justice.'"

The court’s majority opinion upheld the state’s three strikes law, which requires a mandatory life sentence without possibility for parole for the most serious crimes, even in cases where the defendant was a young adult aged 19 to 21 at the time of the first offense.

The U.S. Supreme Court has ruled that, in light of research on brain development, sentencing should reflect that juvenile offenders have diminished culpability and greater prospects for reform.

The Washington Supreme Court said those considerations don’t apply to these people, because the third strike offenses occurred decades later.

Third-strike offenses have included stabbing people with a knife, beating someone with a bat, and threatening a person with a metal pipe.

“These petitioners are fully-developed adults who were repeatedly given opportunities to prove they could change,” Chief Justice Mary Fairhurst wrote.

“We do not have to guess whether they will continue committing crimes into adulthood because they already have.”

Defense lawyer Kim Gordon submitted a brief on behalf of the Juvenile Law Center advocating for individualized sentencing for people who commit their first serious offenses as young adults.

Gordon said she’s disappointed at the court’s ruling, for those “destined to die in prison, regardless of who they are as individuals.”

But she said she’s hopeful that “Justice Yu has called us to action.”

Gordon said Yu’s opinion dovetails with ongoing efforts to review the state’s sentencing guidelines, including a new legislative task force.

“What I hope is that as part of the task force’s work, that they look carefully at whether a parole board or an expansion of clemency or some other alternative is the best way to take a second look at these sentences,” Gordon said.

Gordon said she also hopes judges can be given more discretion to depart from mandatory sentences.

“We need to think carefully about who we give this sentence to in the future, and we also need to take a look again at who has received this sentence in the past,” she said.

Yu said any examination of life sentences must recognize the disparate impacts of the criminal justice system on people of color.

“We should not be satisfied with the status quo; permanent incarceration has neither reduced crime nor increased confidence in our criminal justice system,” Yu said.