February 2002

Washington's Administration of Misdemeanor Justice

by Darren Nienaber

About five years ago, I came downstairs to find my brother sleeping peacefully in a reclining chair, a heroin needle in his arm and a blackened spoon on the carpet beside him. His body was gaunt and sickly; when he spoke, his speech was slurred and incoherent. Some time later, an overdose stopped his heart. By the time the paramedics revived him, his face was turning blue.

While in a Bellingham jail serving a six-month sentence for a heroin-related crime, a jail officer asked my brother if he was Joe So-and-So; my brother answered yes. The officer told him bail had been posted. He asked my brother to fill out the necessary paperwork, and then released him. Later that day, the real Joe So-and-So asked the jail officer what was taking so long. A few days later, the police found my brother, with heroin in his possession, passed out in a car by the Nooksack River. For a short time, he became the poster-child for mismanaged jails.

When I visited my brother in jail, he had gained weight, his coloring was normal, and he looked healthy. The first thing he said was, "Man, am I glad to be here! This place has saved my life." By providing him with a secure environment, which was comparatively freer from drugs than the outside world, he was forced to kick the habit. He began to think clearly about what was important in his life, and how he wanted to live it. His children, the most important thing to him, provided the motivation he needed to clean up his act.

A few years later, I was prosecuting misdemeanor crimes committed primarily by poor people. For six months, I was a contract deputy prosecutor in King County District Court, and most of my time was spent at the Regional Justice Center in Kent. Although jail helped save my brother's life, and probably helped some defendants who came through the center at that time, I rarely saw a success story — only hundreds of defendants being booked on new charges.

Judging by the rate of recidivism, there is no doubt that jail is not the solution to every problem. However, along with fines and treatment, it is currently the state's main tool for enforcing Washington law. There are numerous problems with Washington's administration of misdemeanor justice. Many of these problems lead to substantially disparate treatment of similarly situated defendants. Other problems allow defendants to avoid prosecution. My purpose is to identify many of these problems and to propose solutions.

• The fifth conviction for a driving-while-under-the-influence (DUI), assault in the fourth degree (Assault 4), or misdemeanor violation of a no-contact order (VNCO) should move that offense and any subsequent conviction of that offense to the felony category. Those working in the justice system recognize that a first-time offense may well be a fluke in an otherwise law-abiding citizen's life. They may even recognize that a second offense does not necessarily mean that the defendant is a danger to society; however, by the third offense, most would agree that the defendant has a serious problem.
  
  Third-time (caught and convicted) DUI offenders face a minimum of 90 to 120 days in jail, depending on whether they refuse the blood-alcohol blow test. Somewhere between the fifth and 10th offense, that defendant no longer has the benefit of the doubt; he poses an extreme danger to the community. By this time, he has been warned by the court numerous times of the risks and dangers he faces, yet he has ignored these warnings. At this point, the serious repeat assaulter should be treated as if he has committed a low-grade felony and thus face a potential sentence of up to five years.
  
• Assault 4 and VNCO convictions should carry mandatory minimums just as DUI does. A person convicted of assault on five different occasions may spend only 20 days in jail, while a third-time DUI offender may receive a 90- to 120-day sentence. Crimes of violence threaten the security, sanctity and peace of the community. A habitually violent criminal deserves little mercy.
  
• Assault 4 and VNCO convictions should result in additional minimum sentences of one to five days for any subsequent criminal conviction. Consider one defendant who has been convicted of malicious mischief in the third degree (MM3) but has no other criminal history. Then consider the defendant with the same MM3 charge who has five assault convictions in his criminal history. The defendant with the extensive history shows flagrant disregard for the law, and therefore is a more serious threat to the community. Critics may argue that judges already have the discretion to consider criminal history in imposing sentences; however, the practical effect of increasing the penalty for an Assault 4 or VNCO conviction is that the gap in sentencing among judges may close.
  
• Driving while license suspended in the first degree (DWLS1) mandatory minimums are excessive at times. A person can refuse a blood-alcohol blow test and become suspended in the second degree, even if he is later found not guilty of DUI. If he drives twice, he can be suspended in the first degree. If he drives three more times, he faces 10 days for the first offense, 90 days for the second offense, and 180 days for the third offense — a total of 280 days.
  
  In one case I recall, the defendant had been sober for three years, but had obtained his DWLS1 status by driving too many times after a DUI conviction. When arrested, the defendant accepted full responsibility for his actions even though it meant serving the full-year sentence. Since he had very little criminal history, he was sentenced to six months in jail, the mandatory minimum — and in my opinion, five months too long.
  
• It should be police-department policy to physically serve misdemeanor warrants more than a year old. In King County, when a defendant fails to appear (FTA) for a court appointment, a warrant is issued for his arrest. The nearly exclusive means used to serve the warrant occurs when the defendant commits a traffic infraction and the officer discovers the warrant during a routine stop. This process essentially requires that the defendant commit a traffic infraction for the warrant to be served. Many warrants aren't served for many years, and many are never served. To avoid prosecution, a defendant would only have to fail to appear at a hearing, then never commit a traffic infraction, and never be booked on another charge. Many defendants avoid prosecution for years, or altogether — an embarrassment to law enforcement.
  
• Prosecutors should be required to file a complaint within four months of a crime or show good cause for further investigation. A shorter complaint-filing time could be of benefit to prosecutors, because witnesses' memories would be fresher.
  
  Another problem is that of defendants who move frequently and therefore never receive the court's paperwork. Six months later when the state files charges, the defendant gets booked into jail on a warrant he never knew existed.
  
  I have never seen a misdemeanor case that could not be filed within two months, but the "good cause" exception would protect prosecutors who have a valid reason for filing later.
  
• DWLS second- and third-degree offenses should be placed on an accelerated trial schedule for in-custody defendants. Many wait longer for trial than the actual sentence imposed. Typically, a DWLS3 conviction would result in a zero- to 10-day sentence, but the time to trial usually takes 30 to 50 days. The factual and legal issues are seldom complex — probable cause to stop, proper notice of the suspension, and whether or not the defendant was actually driving. Defendants who qualify for public defense should be assigned counsel within two days. A combined motion argument and trial could be held within three weeks. Alternatively, a motion argument could be scheduled within two weeks, and a trial two weeks after that, assuming officer availability.
  
• Defendants should be clearly warned about the meaning of a suspended sentence. For example, a judge may sentence a defendant to 365 days in jail with 360 days suspended, meaning the defendant serves five days in jail. Later, during a probation review hearing, if the court finds that the defendant has violated the conditions of probation, the court may revoke some or all of the remaining jail time, and the defendant may be required to serve all 360 days. Defendants frequently think that the judge has sentenced them to only five days in jail, and that they are free of the charge, not understanding that if they commit a subsequent offense during the probationary period, the judge may impose the remainder of the sentence.
  
• There should be limits on the amount of suspended jail time that is revocable. A first-time DUI offender might be sentenced to 365 days in jail with 363 days suspended — a total of two days in jail. After the defendant incurs a subsequent DWLS3 conviction, the reviewing court may impose 120 days in jail. Probation reviews tend to be arbitrary events; there is substantial variation in sentencing among judges, and substantial variation in sentencing by individual judges.
  
  The WSBA should recommend to the Legislature specific guidelines on the amount of jail time that should be revoked under differing sets of probation violations, for example, for a first-time DUI offender who will not attend alcohol-information school, or a fifth-time assaulter who subsequently has three new assault convictions or violation of no-contact orders. There should be some judicial discretion, but limits on judicial whim.

Misdemeanors have not received the special consideration they deserve because felonies grab the attention of the media, the Legislature, prosecutors, judges and public defenders. This is unfortunate, because misdemeanors are by far the "more average" crime. I submit that the handling of misdemeanors needs a more scrutinizing look.

Darren Nienaber is a graduate of Western Washington University and Northwestern School of Law of Lewis and Clark College. He has been a special deputy prosecutor in the King County Prosecutor's Office. He currently works for the Mason County Prosecutor's Office.