Hard Time for Armed Crime was enacted to close loopholes and increase sentences for armed criminals. Before Hard Time, few armed felons were eligible for a deadly weapon enhancement1 under Washington State law. In addition, the maximum enhancement was only two years and there was no distinction between firearms and other deadly weapons nor first time versus repeat armed convictions.

Hard Time dramatically increased sentences for violent armed criminals around the state. The following three examples illustrate the effect of the law.

One of the first criminals charged under Hard Time was Tama John Amerika in King County. He menaced his wife and her sister with a gun, then punched and pistol-whipped both of them and fired a total of three shots. Under Hard Time, he was sentenced to 4 years: 1 year for assault in the second degree plus 3 mandatory years for a firearm enhancement. Under the old guidelines, he would have received only a 2 year sentence (1 year enhancement), with one-third off for "good time."

Michael Weatherman, age 17, was sentenced as an adult for kidnapping and robbing a mother and daughter in Yakima. After the victims were bound, Weatherman put a gun to their heads and screamed threats at them. Hard Time added 10 mandatory years to Weatherman's sentence, for a total of 23 years. Under the old law, only a total of 4 years could be added with an expected one-third off for "good time."

In Vancouver, four extremely violent criminals learned a tough lesson about Hard Time after terrorizing a newlywed couple in their own home. After seeing a wedding announcement of a Chinese/Vietnamese couple in the local paper, the gang broke into the couple's bedroom in the morning, duct-taped them, threatened them with a gun and ransacked the apartment, taking jewelry, cash and other items. The ordeal was so traumatizing that the wife quit going out in public.

Each violent offender was convicted of two counts of first-degree robbery, two counts of first-degree kidnapping, and one count of first-degree burglary (each separate count can be the basis of a five year firearm enhancement). They were also convicted of two counts possession of stolen property. Superior Court Judge Tom Lodge concluded that all four criminals deserved stiff penalties based on a number of factors including the terrorization of the couple, the gang-style nature of the crimes, and the targeting of this couple for their "cultural reluctance" to report the crime to police.

Kiet Hoang Le was sentenced to 42 years, 8 months as the ringleader. Sang A. Chuong, Hoang Tau Kieu and Duc Hau Hip were all sentenced to 40 years, 9 months. Hard Time enhancements provided most of the punishment, sentencing each violent criminal to an additional 25 years for using a gun in five violent crimes. That is a quarter century added without "good time" or parole.

Under the old law, only a total of 9 years, 6 months could be added for weapon enhancements, assuming consecutive sentences. Again, up to one-third (3 years, 2 months) could be reduced for "good time."

This report examines the history of Hard Time and details various provisions of the law. It also makes several recommendations for clarifying armed sentences.

History of Hard Time

After the huge success of "Three Strikes, You're Out," its leaders, John Carlson and David LaCourse, began reviewing other ways to reform Washington's criminal-justice system.2 The potential targets were armed felons, juvenile offenders and prison costs. After a lengthy debate, "Hard Time For Armed Crime" became the next project. It targets three kinds of criminals:

• Those who use deadly weapons to commit crimes
• Criminals who steal weapons
• Convicted serious felons who illegally arm themselves

The measure also expands the death penalty to include more murderers. Furthermore, to ensure that all of the new penalties are enforced, both the plea agreements by prosecutors and the sentencing practices of judges are to be tracked and made available to the public.

The proposal was first run as a legislative bill in both the State Senate and House in 1994. When the Legislature failed to pass the bill out of either house, a new version was filed as an initiative to the Legislature. Like Three Strikes, the people gathered the needed number of signatures to qualify the measure as an initiative to the Legislature (Initiative 159).

Qualifying the initiative left state lawmakers with three options: Pass the initiative as written; reject the initiative and place it before the voters; or create and pass an alternative to the initiative and place both versions before the voters. By overwhelming numbers in both the House (88-6) and Senate (39-5), the Legislature passed the Hard Time initiative as written. Hard Time became enforceable on July 23, 1995.

Longer Terms for Armed Criminals

Before Hard Time, deadly weapon enhancements were limited to only a few felonies and did not distinguish between firearms and other deadly weapons. Furthermore, the law did not add more time for a repeat armed conviction.

Deadly weapon enhancements in 1993 were as follows:

• 24 months for rape 1, robbery 1 and kidnapping 1
• 18 months for burglary 1
• 12 months for assault 2, assault of a child 2, escape 1, kidnapping 2, burglary 2, theft of livestock 1 and 2 and any felony drug offense

At the time, there were no deadly weapon enhancements for murder, manslaughter, assault 1, child molestation, child luring and many other felonies.

In 1994, voters approved Referendum 43 which added a 12 month enhancement for violent crimes that were left out of the previous list of crimes. These crimes included murder, manslaughter, arson and assault 1, but left out most child molestations, child luring and most other felonies. In addition, the 1994 reform did not distinguish between firearms and other deadly weapons nor did it increase the enhancement for a repeat armed conviction. This is where Hard Time changed law for the better.

Hard Time targets criminals who carry and/or use deadly weapons during the commission of any felony. The amount of time added to the expected sentence depends on the classification of the felony, the type of weapon, and whether it is a first armed conviction or a repeat armed conviction.

Felony classification is based on current state law, which divides felonies into three levels: A, B, and C. Class A felonies are considered the most serious and have a maximum sentence set at 20 years or greater for the first offense. Class B felonies have a maximum sentence of between 8-20 years for the first offense. Class C felonies have a maximum of between 5-8 years for the first offense.

Hard Time requires the following deadly weapon enhancements while armed with a firearm: 5 years for a class A felony; 3 years for a class B felony; and 18 months for a class C felony. The penalties are doubled for a second armed conviction.

The following deadly weapon enhancements are required if the criminal is armed with any other deadly weapon such as a knife or club: 2 years for a class A felony; 1 year for a class B felony; and 6 months for a class C felony. These penalties are also doubled for a second armed conviction.

The reason for the different scales between a firearm and other deadly weapons is to encourage criminals to downgrade their weaponry from firearms to other types of weapons or to no weapons at all. Under Hard Time all deadly weapon enhancements do not allow time off for "good behavior."

Armed Felons Treated Seriously

Police know that when a serious felon chooses to arm himself with a gun, trouble will surely follow. Unfortunately, the previous sentence for unlawful possession of a firearm started at only 1-3 months before Hard Time For Armed Crime passed. The maximum penalty was only 5 years.

Hard Time divided unlawful possession of a firearm into two degrees. First degree was reserved for any murderer, rapist, drug dealer or other serious criminal caught with a firearm. The starting-sentencing range increased to 15-20 months and the maximum sentence doubled to 10 years.

Unlawful possession of a firearm in the second degree was created for less serious felons, those involuntarily committed for mental health treatment and others previously prohibited from possessing a firearm under state law. The starting-sentencing range and the maximum penalty stayed at 1-3 months and 5 years, respectively. Hard Time made each unlawfully possessed firearm a separate offense.

Criminals Dealing in Stolen-Market Guns

Since most criminals acquire their guns through illegal means, Hard Time increased the penalty for people caught stealing guns or possessing stolen firearms.

For many years, state law did not consider the theft of a firearm any different than the theft of other property of equal value. The recommended starting-sentencing range was only 0-90 days. In 1994, the starting-sentencing range for theft or possession of a stolen gun increased to 6-12 months, but the maximum sentence was still only 5 years.

Hard Time split this law into two crimes: Theft of a firearm; and possession of a stolen firearm. The beginning sentencing range for theft of a gun jumped to 12-14 months and the maximum sentence doubled to 10 years. The starting sentencing range for possession of a stolen firearm remained at 6-12 months, but the maximum sentence doubled to 10 years. Hard Time made each firearm stolen or possessed under these crimes a separate offense. Criminals convicted of unlawful possession of a firearm in the first or second degree and either theft of a firearm or possession of a stolen firearm, or both, shall receive consecutive sentences for each of the felony crimes.

Death Penalty Allowed for More Murderers

Washington State has strict qualifications for a murderer to qualify for a death sentence. Not only does the capital murder statute require malice and forethought, but also aggravating circumstances. Hard Time expanded the list of aggravating factors to include murders committed during drive-by shootings or when attempting to join, remain in, or advance in any organization such as a gang or mob. Furthermore, any criminal who murders to avoid a life-without-parole sentence under Three Strikes is similarly covered.

Under the law, these types of murderers must now receive either a life-without-parole sentence or a death sentence upon conviction. There are no second chances.

Monitoring Judges and Prosecutors

Hard Time made Washington the first state in the nation to track the sentencing practices of individual judges. In future elections, voters will be able to examine how each State Superior Court Judge sentences serious felons. A judge's record can then be compared to the expected sentencing range to find out which judges are lenient and which are strict according to state law.

Prosecutors are also held accountable under Hard Time. Plea bargains are recorded on each judgment and sentencing document. If the final sentence is either lenient or harsh, the prosecutor's recommendation is listed along with the judge's ruling to see if they concurred.

As expected, this was the most controversial element of the law. Many judges on the Sentencing Guidelines Commission and other Commission members were very concerned over how to prevent the report from showing any negative "bias."

The Sentencing Guidelines Commission unanimously voted last summer not to publish the sentencing practices of judges until early December and, therefore, after the 1996 judicial elections. This was a major disappointment to Hard Time drafters and supporters, who had hoped for pre-election implementation. However, draft sentencing information was available and provided in mid-August.

On December 9, 1996, the first report on judicial sentencing was released. It gave very abbreviated information on each judge, but complied with the language contained in the initiative. The report listed the number of sentences within the range, the number of aggravating and mitigating sentences, as well as the prosecutor's recommendations when available. As reported in The News Tribune on December 11, 1996, "what frustrates I-159 sponsors is that the report doesn't say whether a particular judge tends toward the high or low end of the range, which is what initiative backers intended."

During the 1997 Legislative session, Sen. Pam Roach (R-Auburn) introduced SB 5863 to force a more complete report from the Sentencing Guidelines Commission. Before action could be taken, the Commission informed lawmakers that they had already voted on February 14, 1997 to:

Adopt a September 1 deadline for releasing the judges' report, based on the preceding calendar year. Motion #783.
Include the details of each judge's standard-range sentences. Motion #784.
To initiative supporters, this meant a more complete report with final data available before any general elections.

Hard Time Sentences

As detailed in examples at the beginning of this report, Hard Time dramatically increased sentences for violent armed criminals. However, these longer sentences did not usually require lengthy and costly trials. Instead, they were often part of a guilty plea.

The Sentencing Guidelines Commission studied a total of 173 deadly weapon enhancements from July 23, 1995 to mid-May, 1996: 111 of them were for being armed with a firearm and 62 were for other weapons such as knives and clubs. In spite of the tougher penalties for carrying any deadly weapon, over 67% of the firearm enhancements and over 70% of the other deadly weapon enhancements were part of a guilty plea.

Under Hard Time, sentences are also substantially increased for serious felons caught in possession of a firearm and other crimes involving firearms. For years, the average sentence for unlawful possession of a firearm hovered around 9-11 months. After Hard Time passed, serious felons convicted of unlawful possession of a firearm in the first degree found their average sentence soar to over 37 months. Other felons and prohibited persons convicted of unlawful possession in the second degree retained an average sentence of 9.8 months.

Sentences for reckless endangerment in the first degree, appropriately renamed drive-by shooting during the 1997 Legislative session under HB 3900, have also increased dramatically. During the early 1990's, the average sentence was only 3-4 months. After the passage of Referendum 43, the average sentence doubled. Hard Time nearly doubled the new average again from of 8.5 months to 16.7 months.

When Hard Time divided theft of a firearm into two new crimes: (1) theft of a firearm and (2) possession of a stolen firearm, the sentences for both new crimes actually increased over previous sentencing averages. Under the old law, the average sentence was 7.9 months for both theft and possession. Under Hard Time, theft of a firearm averaged 16.3 months and possession of a stolen firearm averaged of 11.1 months.

Hard Time provided longer sentences for all of the armed crimes studied in this report. Most of the sentences more than doubled after the adoption of the law and other penalties were substantially increased. Supporters believe that these tougher sentences should lead to fewer armed crimes in the future.

Fine Tuning Hard Time

Most judges are interpreting and implementing Hard Time as intended by initiative drafters. However, a few judges have different interpretations on several provisions. These issues are currently working through the court system. Fortunately, the Washington State Attorney General has taken a position supporting the original intent of the initiative.

Our study has determined that there are four policy issues which should be considered in reviewing the existing statute. The first three are technical revisions which would resolve any debate on the initiative's intent. The fourth is a policy change supported by initiative drafters.

First, consider whether all deadly weapon enhancements should be served consecutively to all other sentencing provisions, including other deadly weapon enhancements.

Second, consider whether sentences for unlawful possession of a firearm, theft of a firearm and possession of a stolen firearm should all be served consecutively.

Third, consider whether reduction of a deadly weapon enhancement for "good time" should be barred when the combined sentence would otherwise exceed the maximum sentence for the offense.

Fourth, consider whether to increase the maximum sentence for felonies involving a deadly weapon to allow an enhancement for an offender whose standard sentencing range is near or at the statutory maximum.

Issue 1. Consider whether all deadly weapon enhancements should be served consecutively to all other sentencing provisions, including other deadly weapon enhancements. In the case of multiple offenses, consider whether "hidden" enhancements should be prevented by adding the enhancement to the total term of incarceration.

Most judges are already sentencing armed criminals under these guidelines. Under Hard Time, deadly weapon enhancements in RCW 9.94A.310(3)(e) and (4)(e), "shall not run concurrently with any other sentencing provisions." The intent was to set deadly weapon enhancements apart from ANY other sentences.

However, several judges have overlapped deadly weapon enhancements on top of each other or hidden enhancements3 by combining them with a separate sentence for another felony (concurrent sentence). These unusual sentencing practices were uncovered by the Sentencing Guidelines Commission.

Uniform interpretation is essential for an equitable justice system. If it is desirable to assure that the enhancement be served consecutively in accord with the drafter's intent, that could be accomplished by amending RCW 9.94A.310 to SPECIFICALLY state that:

Deadly weapon enhancements shall run consecutively (separate) to all other sentencing provisions, including all other deadly weapon enhancements.

If the offender is being sentenced for more than one offense, the deadly weapon enhancements must be added to the total term of confinement for all offenses.

The first change prevents overlapping enhancements. The second change prevents "hidden" enhancements lumped with another, unrelated sentence. In addition to these modifications, RCW 9.94A.400 regarding consecutive and concurrent sentences may need to specifically list deadly weapon enhancements as consecutive.

Issue 2. Consider whether sentences for unlawful possession of a firearm, theft of a firearm and possession of a stolen firearm should all be served consecutively.

Hard Time mandates consecutive sentences for criminals convicted of unlawful possession of a firearm and either possession of a stolen firearm or theft of a firearm, or both in RCW 9.41.040(6). Some courts appear to be confused. This provision would be made clearer and uniformity of sentencing advanced if RCW's 9.94A.400, 9A.56.300 and 9A.56.310 specifically listed these crimes as consecutive to each other. This could prevent sentencing problems in the future and is an easy technical fix.

Issue 3. Consider whether reduction of a deadly weapon enhancement for "good time" should be barred when the combined sentence would otherwise exceed the maximum sentence for the offense.

When the combined standard sentence for a crime and deadly weapon enhancement exceeds the statutory maximum for the crime, the maximum sentence becomes the standard sentence under current law. Therefore, either the standard sentence must be reduced or the deadly weapon enhancement must be reduced.

Hard Time mandates in RCW 9.94A.310(3)(e) and (4)(e) that all deadly weapon enhancements, "are mandatory, shall be served in total confinement, and shall not run concurrently with any other sentencing provisions." In addition, Hard Time dictates in RCW 9.94A.150 that there would be no "good time" allowed for any portion of a deadly weapon enhancement. The intent of initiative supporters to prevent a reduction in any deadly weapon enhancements is clear in these sections of law.

However, based on the non-uniform reading of several other Hard Time provisions by sentencing judges, additional specific language regarding no "good time" or other reductions in deadly weapon enhancements should be considered to prevent future complications. Modifications to RCW 9.94A.120, 9.94A.310 and RCW 9.94A.400 would solve any potential ambiguity. These first three issues can easily be addressed as a Hard Time clean-up package. Furthermore, Issues 1 and 2 may also fit within a larger bill dealing with consecutive versus concurrent sentences.

Issue 4. Consider whether to increase the maximum sentence for felonies involving a deadly weapon to allow an enhancement for an offender whose standard sentencing range is near or at the statutory maximum.

During the creation of Hard Time, supporters decided the proposal would be more likely to pass the Legislature if it did not increase the statutory maximums for armed felonies. So to prevent a costly ballot campaign, the original proposal represented a compromise. It is now time to review that compromise.

As seen in the discussion of Issue 3, lengthy deadly weapon enhancements sometimes increase the standard sentencing range above the maximum allowable sentence. Unfortunately, this means that while a first time felon can receive a tough deadly weapon enhancement, some career criminals cannot. This apparent inequity will increase in frequency as armed criminals face a double deadly weapon enhancement for repeat armed convictions. The following manslaughter case drives this point home.

A career criminal named Patrick Gandy had a fight with his girlfriend, so he went over to the house of one of her girlfriends to talk and find a place to stay. Gandy was still at her place the next morning when the woman's boyfriend, Ryan Carson, dropped by at about 7:30 am.

Carson saw Gandy's truck and proceeded to go up to the apartment. When Carson discovered a strange man was in the bathroom, he feared the worst and confronted Gandy.

Patrick Gandy pulled a gun. Gandy claims that there was a struggle for the gun and the gun went off, but there were no witnesses to corroborate his account of the events.

Since Carson died and was unable to tell his side of the story and the girlfriend did not see anything, prosecutors were only able to get a manslaughter 1 conviction for "reckless conduct" for pulling the gun during a verbal confrontation. Gandy was also convicted of unlawful possession of a firearm in the first degree and possession of stolen property in the second degree.

Patrick Gandy already had a long criminal history, and his offender score was 7 out of a possible 9. His extensive prior record including two burglaries in the second degree, escape in the first degree, malicious mischief in the second degree, and possession of methamphetamine placed the standard sentencing range from 7 years, 3 months to 9 years, 8 months. This standard range was too close to the statutory maximum of 10 years to give Gandy the firearm enhancement of 3 more years.

Prosecutors were forced to ask the judge for a sentence below the standard range in order to give the three year firearm enhancement with no "good time" off. The judge agreed.

A reduced sentence for the crime of manslaughter 1 would not have been necessary in this case if firearm and other deadly weapon enhancements were separated from the statutory maximum for the underlying crime.

By modifying the maximum sentence to always allow for enhancements passed by the Legislature, even a criminal with a lengthy criminal history like Patrick Gandy could still face a stiff deadly weapon enhancement. Changes to RCW 9.92.010, 9.94A.120 and 9A.20.021 would make this recommendation possible.

During the 1997 Legislative session, manslaughter 1 was increased to a class A felony with a maximum sentence of life without parole under SB 5398. This solves the enhancement problem for manslaughter 1, but there are still crimes such as manslaughter 2, residential burglary, assault 2 and other felonies where the maximum penalty change is needed.

Issue 4 is the only one which goes beyond the original intent of Hard Time drafters. For this reason, this idea should be kept separate from the clean-up proposals.

The Future of Hard Time

Hard Time for Armed Crime is only two years old and it is too soon to analyze its impact on armed crime in Washington state. A substantial learning curve is still involved for enforcing the new penalties. During the first months after the law's effective date, several sentences were handed down without adding the new deadly-weapon enhancements. This mistake was corrected after judges and prosecutors were reminded of the new law by the Sentencing Guidelines Commission.

A similar "learning curve" may be under way among the criminal population of Washington. Because the passage by the Legislature involved less public debate than the full blown election campaign which preceded the passage of Three Strikes, it is likely that many felons were not immediately aware of the new consequences for committing an armed crime. We anticipate that too is changing as criminals experience increased sentences themselves or hear about and meet others who do.

Another area of concern is that several judges are not properly enforcing the deadly weapon enhancements as a mandatory additional sentence which must be served separately from "any other sentencing provisions," including other enhancements. These issues need to be addressed. Otherwise, the courts may rule on these provisions in the next year or two.

Hard Time was promoted by backers as a way to increase penalties for armed criminals. In this area, the law has proven very effective. Criminals committing armed felonies, drive-by shootings, stealing or possessing stolen firearms all saw their average sentences increase dramatically. Overall, Hard Time has been largely successful with only a few policy issues deserving clarification.

This view was reaffirmed recently by King County Prosecutor Norm Maleng who said,

"While the Three Strikes law was an important weapon and high profile symbol in our battle against career criminals, the Hard Time law has, day in and day out, served to ensure longer sentences for the type of armed criminal the public fears the most. It has quietly become the most significant criminal justice measure of the 1990's."

Bibliography

1. A deadly weapon enhancement is a fixed amount of time added to a sentence when an offender or an accomplice commits a crime while armed with a deadly weapon.

2. "Three Strikes, You're Out -- A Review" published by the Washington Institute for Policy Studies in February, 1997 studied Washington's 1993 Three Strikes law and concluded that the law had been significant in reducing violent crime in Washington State. A copy of the report is available from the Washington Institute for Policy Studies at P.O. Box 24645, Seattle, WA 98124; (206) 938-6300 or https://www.wips.org

3. A hidden enhancement can occur during concurrent (same) sentencing for multiple crimes. The judge or jury may choose to apply the firearm enhancement sentence only to one of the multiple offenses. For example, a criminal is convicted of robbery 1 and residential burglary and is sentenced to a total of 4 years for both crimes -- 4 years for robbery 1 and a concurrent sentence of 3 years and 6 months for armed residential burglary (6 months plus 3 year firearm enhancement). The firearm enhancement disappears because the robbery sentence was longer than the combined residential burglary sentence.

About the Author

Dave LaCourse is currently the Executive Director of Washington Citizens for Justice and is a former Research Analyst for the Washington Institute for Policy Studies. He helped author both the Three Strikes and Hard Time proposals and was Campaign Director for both initiatives.