Category Archives: Sentencing

Whatcom County Jail Gets Record Number of Inmates

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COVID-19 infections hit record high in California prisons | CalMatters

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.
The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources. From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecessarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. A.N.J: WA Supremes Withdraw Guilty Plea Due To Ineffective Assistance of Counsel

Constitutional Rights, Ineffective Assistance, Sentencing, Washington Supreme Court, , ,

Blog | Speaker Law

In State v. A.N.J., the WA Supreme Court held that Defendant A.N.J’s court appointed counsel was ineffective because counsel failed to do an adequate investigation, failed to consult with experts, failed to fully inform him of the consequences of his plea, and failed to form a confidential relationship with him independent of his parents.

In 2004, when A.N.J. was 12 years old, he pleaded guilty to first degree child molestation.  Almost immediately, he moved to withdraw his plea upon realizing (1) his juvenile sex offense criminal history would remain on his record once he was an adult, (2) that he might have to register as a sex offender for the rest of his life, (3) that he would have to notify his school, and (4) that he would probably be shadowed by an adult while he was at the school.  He argued that under the facts of this case, his plea was not knowing, voluntary and intelligent, and that he should have been allowed to withdraw it.

The court record showed that A.N.J.’s defense counsel spent as little as 55 minutes with A.N.J. before the plea hearing, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts.

Consequently, the WA Supremes reasoned that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution.  A.N.J. was also misled into believing his criminal record of the sex offense could be expunged in the future.

My opinion?  Justice Chamber’s introduction in this opinion says it all:

“While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.

Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders’ own already inadequate compensation.”  ~Justice Chambers, State v. A.N.J.

Public defenders have tough jobs.  Period.  Many of my colleagues are public defenders.  Trust me, they’re on the battlefield every day; in the trenches, trying cases to the best of their abilities.  Unfortunately, glutted trial calendars and lack of resources stretch time/energy/resources excruciatingly thin. I only hope this opinion gives all criminal defense attorneys, and not only public defenders, some insights into how to avoid ineffective assistance of counsel.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Seattle v. Winebrenner/Seattle v. Quezada: Court finds Lenity for Defendants In the Face of Statutory Ambiguity

DUI, Rule of Lenity, Sentencing, Washington Supreme Court, , ,

The Impact of Prior Criminal Convictions — #LadyJustice Speaks

In Seattle v. Winebrenner/Seattle v. Quezada: the WA Supreme Court found that a “prior offense” applies only to offenses that occurred before the current offense, and does not encompass all offenses the defendant has before sentencing.

Both Scott Winebrenner and Jesus Quezada were arrested multiple times for DUI. Each had a deferred prosecution agreement from one arrest which they violated with a subsequent arrest. For those who don’t know, a deferred prosecution is a contract entered into with the court.

Typically, a defendant obtains an alcohol evaluation which states they suffer from an alcohol problem; agrees to be on probation for five years; enters a grueling treatment regimen, and commits no new law violations.  If successful, the DUI gets dismissed.  If they fail, however, the court may revoke the entire agreement, find the defendant guilty, and issue a jail sentence.

Deferred sentences represent a “grey area” in criminal jurisprudence.  They are neither a conviction or a dismissal.  The issue was ripe to determine whether a deferred sentence counts as a prior conviction if the defendant violates the terms by garnering new charges.

Here, the Court reasoned that RCW 46.61.5055’s  use of “prior offense” is ambiguous because it is “subject to more than one reasonable interpretation.” The “rule of lenity” requires “that an ambiguous criminal statute cannot be interpreted to increase the penalty imposed.” The Court further reasoned that offenses committed after the original offense are not “prior offenses” and cannot be considered at sentencing for the original offense.

My opinion? I’m impressed the WA Supremes supported the Rule of Lenity.   The spirit of the rule of lenity – fundamental fairness – lies at the heart of a respectable criminal justice system. See McBoyle v. United States, 283 U.S. 25, 27 (1931) (the principle of “fair warning” motivates the lenity rule) (Holmes, J.).

At a high level of generality, we all agree that ambiguous criminal statutes must be construed in favor of the accused.  But the rule of lenity is often not taken seriously.  Glad to see the WA Supremes gave teeth back to the rule.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Stately: Vehicular Homicide By Disregard Is NOT A Violent Offense; Some Defendants Eligible for First Offender Waiver.

Due Process, DUI, felony, First Time Offender Waiver, Homicide & Manslaughter, Legislation, Sentencing, Violent Crime, Washington Court of Appeals, , ,

Top Attorneys Handling Violent Crimes in Phoenix, AZ

In State v. Stately, the WA Court of Appeals held that Vehicular Homicide By Disregard is NOT a Violent Offense and that some defendants are eligible for the First-Time Offender Waiver.

About a week before her 18th birthday, Ms. Stately drove a car while intoxicated.  Unfortunately, she caused an accident that killed her best friend.  Stately was charged — and later convicted — of Vehicular Homicide by Disregard under RCW 46.61.520(1)(c).  At sentencing, the State recommended 17 months of incarceration.  However, Stately argued she was entitled to a first-time offender waiver under former RCW 9.94A.650 because her crime was not defined as a violent offense.

The trial court agreed.  Stately was sentenced under the first-time offender waiver to 30 days of incarceration, 12 months of community custody, and 4,000 hours of community restitution (community service).

For those who don’t know, a “first-time offender” is any person who has no prior felony convictions.  At sentencing, the court may waive the imposition of a sentence within the standard sentencing range.  The sentence imposed under the first-time offender provision is not an exceptional sentence but is, rather, a waiver of the standard sentence range.

On appeal, the Prosecution argued that Stately was not eligible for a first-time offender waiver because she committed a violent offense.

However, the Court of Appeals thought different.  It reasoned that there are three types of vehicular homicide, all currently class A felonies.  Subsection (xiv) lists the first two types, homicide by intoxication and recklessness, but does not include the third type, homicide by disregard.  Former RCW 9.94A.030(50)(a)(xiv).

The court further reasoned, “If we read the statute to define Vehicular Homicide by Disregard as a violent offense simply because it is a class A felony, then subsection (xiv) would be superfluous.  We presume, however, that the legislature does not include superfluous language and we interpret statutes to give meaning to each section.

Here, it is impossible to harmonize the statute’s terms in subsection (i) with its terms in subsection (xiv).  The later subsection, relating specifically to vehicular homicide, is more specific than subsection (i), which relates generally to all class A felonies.  Applying the specific-general doctrine, the specific terms of subsection (xiv) prevail and Stately’s Vehicular Homicide by Disregard conviction is not a violent offense”  (emphasis supplied).

My opinion?  Again, excellent decision.  It’s pleasing when our legal system takes an academic approach to cases by methodically reviewing the WORDING and LEGISLATIVE INTENT of statutes.  Fortunately, that’s exactly what happened here.  The court avoided a huge miscarriage of justice by refusing to allow the general rule of “violent offense” swallow legislative exceptions to the rule.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. McCormick: Sex Offender’s Suspended Sentence Remains Revoked

Bellingham Defense Attorney, Due Process, Mount Vernon Criminal Defense Attorney, Rape, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

PPT - The Basics of Sex Offender Sentencing in Washington PowerPoint Presentation - ID:253013

In State v. McCormick, the WA Supreme Court held the plain language of Washington’s SSOSA statute does not require proof that a violation was willful before a SSOSA sentence may be revoked.

David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he “not frequent areas where minor children are known to congregate”

Unfortunately, McCormick’s community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick’s first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argued that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence.

However, the Court held that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court’s decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices.

Justice Sanders dissented, asserting that “[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate.”

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

New National Report: 1 in 11 Prisoners Serving a Life Sentence

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How long is a life sentence in the UK, what's a whole life order and when is a prisoner eligible for parole?

A new report released by The Sentencing Project finds 140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the commission of the crime.  In addition, 29% of persons serving life sentences (41,095) have no possibility of parole, and 1,755 were juveniles at the commission of the crime.

No Exit: The Expanding Use of Life Sentences in America represents the first nationwide collection of life sentences data documenting race, ethnicity and gender.  The report’s findings reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white.

The report notes that legislators have expanded the types of offenses that result in a life sentence and established a wide range of habitual offender laws that subject a growing proportion of defendants to potential life terms. The authors note how the politics of fear has largely fueled the increasing use of life without parole (“LWOP”) sentences. This is described as an increasing willingness to impose life sentences on juveniles, an increasing reluctance on the part of parole boards and governors to release parole-eligible life prisoners and how, as a consequence, the population of life prisoners is both growing and aging, with ever-increasing costs to society.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

Imprisoned Undocumented Immigrants May Soon Face Early Deportation

Bellingham Defense Attorney, Constitutional Rights, Immigration, Immigration & Customs Enforcement (ICE), Jail, Legislation, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

How the Deportation Machine Criminalizes Immigrants | The Nation

Hundreds of undocumented immigrants in Washington state prisons will be deported at the end of their sentences. But state officials want to deport many of them early — without serving prison sentences — to save money.

One option is the increased enforcement of a statute which allows for the early deportation of undocumented immigrants who’ve committed non–violent crimes.  Although this law has been on the books for years, it rarely is applied.  Generally, prosecutors do not agree to early deportations without jail because, in their view,  it greatly reduces the consequences for committing a crime.

Nevertheless, prosecutors may be warming up to these early deportations. The head of the Washington Association of Prosecuting Attorneys testified in support of the earlier legislation. Immigration advocates also favor the plan.  Finally, Governor Gregoire has called for a specific agreement between the Department of Corrections and federal immigration authorities which would facilitate such a plan.  It also requires approval from prosecutors and judges.

However, the statute carries a double-whammy: although deportees avoid jail time, they shall be charged with a federal felony if they return.  Additionally, they shall serve the maximum amount of jail which was suspended upon their deportation.  Government data show that illegal re–entry after deportation is the most prosecuted federal crime.  Arizona prisons use a similar deportation program, however, and the re–offender rate is about 2%.

As a side note, illegal immigrants are automatically deported if they commit crimes exposing them to 1+ jail sentence (gross misdemeanors and felonies).  In the case of nonviolent crimes and defendants with little or no history, some prosecutors will agree to a maximum exposure of 364 days instead of 365.  This solution altogether avoids the deportation of illegal immigrants whom the prosecutors deem worthy to stay in the U.S.

Typically, when it comes to the possible deportation of a defendant, prosecutors review the circumstances surrounding the crime, employment history, family ties, immigration status, etc.  These factors affect a prosecutor’s willingness to negotiate.

My opinion?  I support the legislation.  With some reservation.  My #1 concern is ensuring due process rights are not violated.  Defense attorneys MUST ensure the defendant/deportee knows they will serve a HUGE amount of jail — in a federal institution, no doubt — if they return to the U.S. after being deported early.

For that very reason, I believe we’ll see more undocumented defendants exercising their rights to jury trial.  After all, what do they have to lose when negotiations fail?  These defendant already face early deportation, coupled with the threat of prosecutors stacking federal charges if the deportee returns illegally.  Force the government to prove the charges!

Interesting times . . .

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Assault, Constitutional Rights, Ineffective Assistance, Prosecutorial Misconduct, Rape, Sentencing, Sex Crimes, Unit of Prosecution, Washington Supreme Court, , ,

Malicious Prosecution Cases in South Carolina - King Law

In State v. Sutherby, the WA Supreme Court threw out a Rape of a Child conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Mr. Sutherby was arrested and charged with multiple sex offenses to include first degree rape of a child and first degree child molestation.

A subsequent search of his personal computer found child pornography, and he was charged with 10 counts of possession of depictions of minors engaged in sexually explicit conduct. He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.”

The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.

The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of  unlawful Double Jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”

In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid sloppiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

Drug Courts Huge Success

Dismissal, Drug Court, Drug Offenses, felony, Jail, Probation, Sentencing, Studies, Whatcom County Criminal Defense, , ,
What You Need to Know About Drug Court and Addiction
A National Study found that Drug Courts are widely successful. Here’s a summary of the study’s findings:
RECIDIVISM

Graduates of drug courts are less likely to be rearrested than persons processed through traditional court mechanics. Findings from drug court evaluations show that participation in drug courts results in fewer rearrests and reconvictions, or longer periods between arrests.

COST SAVINGS

Nationwide, drug courts save taxpayer dollars compared to simple probation and/or incarceration, primarily due to reductions in arrests, case processing, jail occupancy and victimization costs. While not all persons diverted to drug court would have otherwise been sentenced to prison, for those individuals who are incarcerated, the average annual cost is estimated to be $23,000 per inmate, while the average annual cost of drug court participation is estimated to be $4,300 per person.

THE EFFECT OF SANCTIONS

The study showed that Drug Courts which reward/sanction all levels of good/bad behavior recognize there is value in incremental progress toward the goal of abstinence.

A participant who faithfully makes all court appearances and meets the obligations of the court may be rewarded with an acknowledgement of accomplishment.  On the other hand, developing a flexible, graduated sanction program is a crucial contributor to a successful drug court program, because even those who are eventually successful in drug court tend first to relapse, warrant, and violate other program rules.

The study concluded that sanctioning should be seen as an opportunity to adjust treatment to limit subsequent relapse, rather than the first step on the path to an eventual termination of drug court participation and a likely sentence to custody.

ROLE OF THE JUDGE

One of the unique aspects of the drug court model is the frequency with which judges interact with participants. The relationship is less formalistic than in traditional courtrooms and is individualized based on the judge’s supervision of an individual’s progress.  The goal is partnership, not sentencing. 
My opinion?  I’m a HUGE fan of drug court!  First, it’s a great negotiating alternative for my clients facing drug charges IF the prosecutor’s charges are fairly strong, evidence is unlikely to be suppressed, and a jury would probably find the offender guilty. 
Second, it’s impossible to treat drug addiction with jail or prison sentences.  Period.  Once released, the offender may likely continue using drugs.  Drug Court strikes at the root of the problem by addressing the drug addiction itself.  Finally, the program forces offenders to stay focused on treatment.  The State monitors treatment.  If offenders fail, they may face heavy consequences and get kicked out of Drug Court.
Drug Court should be implemented to a greater degree than it already is.  It presents a win/win situation for everyone: the public, courts, prosecutors, and ultimately the offender.
Please contact my office if you, a friend or family member face a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

Decades of Disparity: Drug Arrests and Race in the United States

Constitutional Rights, Drug Offenses, Due Process, felony, Jail, law enforcement, marijuana, misdemeanor, police, Privacy, Race & Law, Search and Seizure, Search Warrant, Sentencing, Studies, , ,

The War on Drugs: Race, Class, Colonialism and the Politics of Pleasures – Culture, Power and Politics

New drug arrest data shows the persistence and extent of racial disparities in the “War on Drugs” in the United States.

The report indicates dramatic racial disproportions among incarcerated drug offenders.  It states, “Since blacks are more likely to be arrested than whites on drug charges, they are more likely to acquire the convictions that ultimately lead to higher rates of incarceration.” The report also shows that although data indicates that blacks represent about one-third of drug arrests, they constitute 46 percent of persons convicted of drug felonies in state courts.

Among black defendants convicted of drug offenses, 71 percent received sentences to incarceration in contrast to 63 percent of convicted white drug offenders.

My opinion?  The “War on Drugs” should rename itself as the  “War on Race.”  The data speaks for itself.

End the War on Drugs.  Legalize marijuana.  Stop institutional racism.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.