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Judge Stephen Warning

Cowlitz County Superior Court Judge Stephen Warning listens to a defense attorney during a hearing at the Cowlitz County Jail Tuesday.

Washington officials are considering giving judges more discretion over criminal sentencings, and a Cowlitz County judge is among those championing the cause.

“There is no question that sentencing guidelines are a huge barrier to effective use of incarceration (and) rehabilitation,” Cowlitz County Superior Court Judge Stephen Warning said in a recent interview. He said the guidelines, which have become a complicated morass since adoption 35 years ago, are “a constant thorn in every judge’s side.”

Warning said the current system constrains him from giving probation to defendants who need drug treatment, even if it’s abundantly clear that addiction is the root cause of their crime. (Law and justice officials widely blame drugs for the vast majority of crime here.)

Warning, who is a co-chair of the state Superior Court Judge’s legislative committee, would like to see judges given more sentencing discretion and clear guidelines, and an initial report this summer by the state Office of Financial Management appears to agree.

The report’s recommendations include widening sentence ranges, reducing mandatory sentence enhancements (such as wielding a firearm while committing a crime) and boosting the information judges get about a defendant’s background and medical and family history before sentencing.

A state task force that includes attorneys, law enforcement, legislators, advocates and others will use that recommendation as a “jump-off point” to develop a recommendation to the Legislature and the governor, said Keri-Anne Jetzer, an analyst for the state Office of Financial Management. The initial report is expected to be released Dec. 31, and a final report is expected by the end of 2020. That means legislative action is likely another year-and-a-half away, at least.

Warning has lamented the restrictions imposed by sentencing guidelines in court before. In May, for example, he sentenced Keith Zigler, a Castle Rock man, to a decade in prison after Zigler was convicted of delivering methamphetamine and possessing child pornography. Warning said from the bench that the law blocked him from giving Zigler more time.

The Legislature’s last major reform of the sentencing system was nearly 40 years ago. The 1981 Sentencing Reform Act passed with the goal of making strict and narrow sentencing ranges to smooth out disparities across the state. (The new ranges took effect in 1984.) Previously, crimes carried wide sentence ranges but parole boards had the ability to release offenders long before their full sentences, a system Warning said wasn’t ideal, either.

That old system classified all felonies into three tiers, and the highest tier carried a sentencing range of 20 years to life in prison.

“We can’t go back to that kind of a situation,” Warning said.

Currently, felons are sentenced on a grid system based on their prior convictions and the severity of their most recent offense. The process yields a sentencing range to present to judges.

The Legislature has tweaked the system over the years, which the Office of Financial Management laments has created an “almost impenetrable complexity” in calculating sentences. And the current system has left prosecutors with much of the power to negotiate sentences, the report found.

“There’s just this strange notion that the legislature ... will have a better decision about how much time (a) person should do than the judge who’s sitting there with the person in front of them, and knows the details about the crime,” Warning said.

The August report offers two suggestions to change the Sentencing Reform Act: The first maintains the sentencing grid, but it reduces the number of sentencing ranges and expands the upper and lower limits of most felony sentences.

Two examples: The sentencing range for a first-degree murderer with a maxed-out criminal history would expand from 34-46 years to 27-55 years under this option. In the case of a second-degree burglar with a modest criminal history, the range would expand from 3-8 months to 0-12 months in jail.

The second option is an overhaul that creates a new two-step grid. Judges would be allowed to deviate from the recommended sentences if aggravating or mitigating factors like gang involvement or provocation from the victim were found by a jury or agreed to by the prosecution and defense.

A Class B assault would carry a standard range of one to two years, for example, but a judge could impose a sentence between six and 30 months.

Whatever happens, sentences should be consistent no matter what county you’re in, judges and attorneys agreed.

But not everyone agrees that wider sentence ranges are the way to go. Cowlitz County Deputy Prosecuting Attorney Eric Bentson said no system is perfect, but the current system is generally fair. Allowing judges more discretion runs the risk of creating uneven sentencing across the state, he said.

As far as mandatory sentence enhancements, such as wielding a deadly weapon while committing a felony, Bentson said they’re important in distinguishing criminals who present a real risk to society.

“What kind of decision is made to bring a gun with you to go break into a home or steal something? It demonstrates a willingness to take other lives if necessary,” Bentson said. “I don’t think everyone who commits crimes would do that. I think there’s a certain category of people who are choosing to arm themselves to commit felonies, and that category … is one you really want to protect your community from. ... People in our state wanted lengthy sentences for those crimes. That’s why you have those enhancements.”

Jaime Hawk, a former federal public defender and current legal strategy director at the American Civil Liberties Union, said the current system gives prosecutors too much power in determining sentences. She said judges should have more authority to give sentences that are tailored to the offenders.

“The way the sentencing guidelines operate now, often a judge’s hands are tied,” Hawk said. “We want a judge to be able to look at youth as a mitigating factor, for example, (and be) presented with more mitigating information about a person’s story (and) the root cause of the criminal behavior.”

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