Report on Mandatory Sentences - Law Reform Commission

operates retrospectively in so far as offences committed prior to its enactment may constitute ‘strikes’ on
the record of the offender where they are comparable to any of the designated offences. 65 Federal
convictions from other states may also qualify where they relate to conduct similar to that entailed by a
designated offence. 66 The Act stipulates that at least one of the prior convictions must have occurred
before the commission by the offender of any of the other designated offences. 67
5.43 Austin et. al assert that Washington is representative of most other states in that its law
produced a relatively narrow strike zone and requires three strikes in order for a mandatory life sentence
to apply. 68 The Commission notes, however, that Washington does impose a ‘two-strikes’ law upon
certain repeat sex offenders. This regime applies to those who are convicted of a specified sexual
offence, 69 the commission of which was preceded by at least one conviction (whether in the state or
elsewhere) for another specified sexual offence or for a federal offence, out-of-state offence, or offence
under prior Washington law, which is comparable to a specified sexual offence. 70 Where subject to this
‘two-strikes’ law, an offender must be sentenced to life in prison without parole. 71
5.44 It has been observed that low-level offenders have been most affected by the ‘three-strikes’
sentencing regime enacted in Washington. 72 In particular, commentators have highlighted the fact that
second degree robbery is the most common ‘third-strike’ offence. 73 As this offence poses little risk of
physical injury, some commentators, including the Washington Sentencing Guidelines Commission, have
recommended that this offence (along with certain forms of second degree assault) be removed from the
list of designated ‘strike’ offences. 74
rape and sexual exploitation), and vehicular offences (including certain forms of vehicular homicide and
vehicular assault).
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RCW 9.94A.570 specifies that a mandatory life sentence without the possibility of release is the penalty
applicable to ‘persistent offenders’ (as defined by RCW 9.94A.030, see below).
RCW 9.94A.030, at paragraph (32), sub-paragraph (u).
Ibid.
RCW 9.94A.030, paragraph (37)(a)(ii).
Austin, Clark, Hardyman and Henry Three Strikes and You’re Out: The Implementation and Impact of Strike
Laws (National Criminal Justice Reference Service, 2000) at 15.
RCW 9.94A.030, paragraph (37), sub-paragraph (b)(i) lists the relevant sexual offences as follows: (a) rape in
the first degree; (b) rape of a child in the first degree; (c) child molestation in the first degree; (d) rape in the
second degree; (e) rape of a child in the second degree; and (e) indecent liberties by forcible compulsion.
Where a finding of sexual motivation is made, the following offences also qualify: (a) murder in the first
degree; (b) murder in the second degree; (c) homicide by abuse; (d) kidnapping in the first degree; (e)
kidnapping in the second degree; (f) assault in the first degree; (g) assault in the second degree; (h) assault of
a child in the first degree; (i) assault of a child in the second degree; (j) burglary in the first degree; and (k) an
attempt to commit any of the foregoing crimes.
RCW 9.94A.030, paragraph (37)(b)(i) and paragraph (37)(b)(ii).
RCW 9.94A.570.
O’Hagan “Three-strikes life terms fewer than expected” Seattle Times 17 August 2004.
Ibid; and McCarthy Recent Developments on Washington’s “Three Strikes” Law (Office of Legislative
Research, 2009).
McCarthy Recent Developments on Washington’s “Three Strikes” Law (Office of Legislative Research, 2009);
Shapiro “Life in Prison for Stealing $48: Rethinking Second-Degree Robbery as a Strike Offense in
Washington State” (2010-2011) 34(3) Seattle University Law Review 935; and Lee and Colgan Washington's
Three Strikes Law: Public Safety & Cost Implications of Life Without Parole (Columbia Legal Services, 2011).
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