Dead Wrong: Why Washington's Deadly Weapon Criminal Sentencing Enhancement Needs "enhancement"

• Publication year: 2012

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 35, No. 3SPRING 2012

COMMENTS

Dead Wrong: Why Washington's Deadly Weapon Criminal Sentencing Enhancement Needs "Enhancement"

James Harlan Corning(fn*)

"Let it be said that I am right rather than consistent."(fn1) - Justice John Marshall Harlan

I. Introduction

The early 1990s saw a sharp increase in gun violence directed toward Washington's law enforcement community.(fn2) 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 Interstate 5 as he tried to aid a stranded motorist.(fn3) Just two weeks later, Dennis Griswold, a Tacoma tavern owner and the father of Tacoma Police Officer Danielle Griswold, was robbed and shot to death.(fn4) And on August 15th, Snohomish County Sergeant Jim Kinard was shot and killed as he responded to a reported homicide.(fn5)

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"(fn6)-the law enforcement community and the victims' family members proposed an initiative to the state legislature. Initiative 159, the "Hard Time for Armed Crime" Act (HTACA), significantly increased the penalties for criminals who committed crimes while armed with a deadly weapon(fn7)-particularly firearms.(fn8) 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 sentence received upon conviction,"(fn9) the legislature promptly enacted the HTACA, and the new law took effect on July 23, 1995.(fn10)

The HTACA significantly altered the "deadly weapon sentencing enhancement,"(fn11) a provision of Washington's felony sentencing guidelines that had remained largely unnoticed since enactment in 1984.(fn12) 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whenever a defendant was charged and convicted of committing the crime while armed with a deadly weapon.(fn13) But as originally enacted, the deadly weapon enhancement applied only in restrictive circumstances. The list of deadly weapons was statutorily defined,(fn14) as was the list of felonies that could be "enhanced."(fn15) 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.(fn16)

The HTACA dramatically expanded the scope and effect of the deadly weapon enhancement. It applied the enhancement to nearly all felonies,(fn17) well beyond the small list of predicate offenses already subject to enhancement (namely rape, robbery, kidnapping, and burglary).(fn18) Furthermore, under the HTACA, all deadly weapon enhancements became mandatory,(fn19) thus denying trial courts any ability to suspend a portion of the enhanced sentence. Moreover, the HTACA required all enhancements to be served in total confinement and consecutively to all other prison sentences.(fn20)

Shortly after the HTACA took effect-and apparently in response to the HTACA's sweeping changes and the expanded scope of the en-hancement(fn21)-the Washington Court of Appeals imposed a significant new restriction on the enhancement.(fn22) Supplementing the previous requirement 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."(fn23) But the various divisions of the court of appeals initially disagreed on how to properly apply this "nexus" test.(fn24) 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.(fn25)

In 2007, after more than a decade of struggling to adequately explain to lower courts how to apply the nexus test, the Washington State Supreme Court granted review in State v. Brown,(fn26) 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.(fn27) To supplement 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.(fn28)

Since the HTACA's passage in 1995, the deadly weapon sentencing enhancement has suffered from three major flaws. First, each formulation 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.(fn29) 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.(fn30) Finally, because the enhancement 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.(fn31)

This Comment confronts the difficult question of how to reformulate the deadly weapon sentencing enhancement to better align it with the policy goals of deterring and punishing armed crime. Part II explores the constitutional and practical defects in each of the three formulations of the sentencing enhancement's armed requirement by delving into the enhancement's legislative history and the judicial struggle to interpret it. Part III analyzes the need for a more nuanced approach to the weapon enhancement by exploring key criticisms about the enhancement's scope and application. Part IV argues that the Washington legislature must provide courts with more rigid guidance, specifically by restoring the crux of the easily accessible test in a form that also takes into account the nature of the crime and the weapon. Part V concludes by urging immediate legislative action and exploring the consequences of further inaction.

II. The History of Washington's Deadly Weapon Sentencing Enhancement

Washington has long maintained some form of sentencing guideline or enhancement for criminal conduct involving deadly weapons, although the scope of the deadly weapon enhancement has expanded considerably in the past two decades. Washington courts have struggled with how to interpret the enhancement precisely because of this recent expansion. This Part describes the legislative origin of the enhancement, as well as how and why the enhancement has recently expanded. This Part also explores how courts have struggled with determining when a suspect is armed with a deadly weapon for the purpose of applying the enhancement.

A. Legislative History of the Weapon Enhancement

From 1935 to 1981, Washington employed an indeterminate sentencing scheme(fn32) for all adult felony convictions.(fn33) Under this scheme, Washington courts fixed only the maximum possible period of incarceration during sentencing.(fn34) Once the offender was remanded to the custody of the penitentiary, the Board of Prison Terms and Paroles set the actual term of confinement.(fn35) Courts were obligated, however, to also set mandatory minimum periods of incarceration in certain circumstances. For example, if an offender possessed a deadly weapon during the commission of the crime, the court was required to impose a prison sentence of at least five years.(fn36) In 1961, the legislature established procedural protections for this sentencing provision by mandating that only the fact finder (and not the sentencing judge) could determine whether the defendant was armed with a deadly weapon at the time the offense was committed.(fn37)

Washington's criminal sentencing policies changed radically during the early 1980s. In response to a growing public outcry for fiscal responsibility and fairness in prison sentences,(fn38) Washington became one of the first states to adopt a determinate sentencing scheme(fn39) when the legislature enacted the Sentencing Reform Act of 1981.(fn40) The Act created the Sentencing Guidelines Commission (SGC) and charged the commission with proposing standard sentencing ranges and guidelines for all felony sentences.(fn41) In 1983, after several years of meticulous work, the SGC issued its proposed sentencing guidelines, which the legislature quickly adopted.(fn42)

Among other changes, the sentencing guidelines enacted by the legislature included a new deadly weapon sentencing enhancement. The enhancement, which amounted to a footnote to the proposed sentencing guidelines grid, required that certain "[a]dditional time [be] added to the presumptive sentence if the offender was armed with a deadly weapon" during the commission of certain felonies.(fn43) The enhancement provision did not alter the preexisting statutory definition of a deadly weapon,(fn44) nor did it change the process by which possession of a deadly weapon was alleged and proved.(fn45) Instead, the enhancement established the concept of adding an additional period of incarceration to certain felony sentences if the accused committed the crime while armed with a deadly weap-on.(fn46)

As enacted in 1983, the enhancement applied to only eight specific felonies, and it...