The future of Washington's criminal sentencing system, broken this summer by the U.S. Supreme Court, may look a lot like its past.
It will, at least, if the Legislature listens to a committee of lawyers that is trying to dig out from what U.S. Supreme Court Justice Sandra Day O'Connor called a "No. 10 earthquake."
The court ruled in June in the case of Grant County, Wash., resident Howard Ralph Blakely Jr. that defendants are constitutionally entitled to have a jury determine all facts used to justify above-standard sentences.
The ruling applied to Washington and as many as 10 other states with standard-range sentencing laws. Previously, judges in the guideline states could exceed standard ranges if they found aggravating circumstances.
Since the Blakely ruling, many trial judges have concluded they lack authority to impose above-standard sentences. Some, however, have ruled they can solve the problem by empanelling juries to consider aggravating factors.
The Washington Supreme Court has heard several test cases that could lead to an interim solution, but there is broad agreement in the legal community that the Legislature must amend the law.
A Senate-House task force already was considering changes in the guideline-setting Sentencing Reform Act when the Blakely crisis occurred. As an outgrowth of that effort, an ad hoc committee of prosecutors and defense attorneys was asked to draft a quick fix.
"At least so far, we'd like to see a relatively narrow procedural fix," said Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys. "It sounds simple, but it turned out to be a little more complicated than that."
He and Lenell Nussbaum, past president of the Washington Association of Criminal Defense Lawyers, and a handful of their colleagues hope to complete a proposal by Friday. That's when the state Sentencing Guidelines Commission has its final meeting before the Legislature convenes next month.
If the defense and prosecuting attorneys can achieve a sufficient consensus, they plan to let the Sentencing Guidelines Commission carry the issue to the Legislature.
Guidelines Commission Chairman David Boerner, a Seattle University law professor, has been working with the ad hoc committee and supports the narrow approach it is taking.
"I think we have not reached a consensus yet, but it's probably likely that we will," Boerner said.
He envisions a proposal to provide notice to defendants and spell out how juries are to decide aggravating factors, "and that's about it."
The state Superior Court Judges' Association favors a different simple solution. Many judges have chafed about having their hands tied since the Sentencing Reform Act took effect in 1984, and their association would solve the Blakely problem by making the guidelines voluntary.
Currently, standard-range sentences are mandatory unless a judge finds unusual circumstances to justify an upward or downward departure. Under the Blakely decision, judges would be free to impose any sentence authorized by pre-guideline statutes if the guidelines were just suggestions.
The Superior Court Judges' Association is likely to be disappointed, Boerner, McBride and Nussbaum agreed.
Statistics show that guidelines hold down prison populations while helping ensure even-handed justice across the state, McBride said. He thinks the Legislature won't be willing to turn back the clock, and now isn't the time for that debate.
"I need a basic Blakely fix so we can still do our jobs, and I want to keep the focus on that," McBride said. "I don't want to get it Christmas-treed up with all these other issues because that's going to be hard to get passed."
While the prosecutors' and defense attorneys' associations agree in principle, they are divided by details.
The groups agree that prosecutors should declare their intention to seek above-standard sentences when they file charges, and that juries ordinarily should consider aggravating circumstances in the normal course of a trial.
In some situations, though, juries might be called back for post-conviction hearings. Examples would include cases in which a defendant's criminal history generally not admissible in a trial is part of the aggravating circumstances.
Even if juries find aggravating factors, judges would still have to consider similar cases and decide whether an exceptional sentence is warranted.
Nussbaum and McBride say their main disagreement is whether aggravating circumstances should be limited to those specified in the Sentencing Reform Act.
The list now included in the law is not exclusive. It covers most of the obvious things, such as violation of a trust, unusual cruelty or a particularly vulnerable victim. But prosecutors and judges have been free to use other factors.
Nussbaum's group wants an exclusive list of aggravating factors and an expanded list of mitigating factors.
McBride's group objects to mitigating factors related to personality instead of conduct.
Prosecutors also want flexibility to deal with "weird" cases that can't be anticipated, McBride said. Examples in the past have included crimes committed for gang initiations and a case in which a victim was attacked by someone he was trying to help, he said.
Nussbaum and McBride said they may have to agree to disagree on how to define aggravating and mitigating factors.
"I think we're going to force the Legislature to pick," McBride said.