Felony Sentencing in Washington
As a Seattle criminal defense attorney, I represent people charged with crimes. Although there are defendants in both criminal and civil lawsuits, the two types of proceedings play out very differently. The biggest difference between someone charged with a crime or defending a civil lawsuit is the penalty. In a civil case, generally, a defendant is facing the possibility of losing money. In criminal cases, the defendant’s liberty is at stake. Criminal defendants are risking jail time if they lose their case. But how much jail time? Those potential sentences vary dramatically.
I’ve written before about how convictions affect employment, the ability to travel, and more. But those are collateral consequences. The direct consequence of a criminal conviction is often time spent in custody in a jail or prison.
Defendants want to know how much time they might be facing. When a defendant is deciding whether to take a plea or go to trial, one part of the decision is the likelihood of prevailing in front of a jury. The other part is determining what the consequences are if you don’t prevail. The only way to make an informed decision about such an important matter is to have all of the information.
For misdemeanors or gross misdemeanors the potential sentence is fairly straightforward. The maximum potential custody for a misdemeanor is 90 days in jail. For a gross misdemeanor, it’s 364 days.
For felonies, the most serious crimes, potential custody gets more complicated. How complicated? In Washington, to figure out how much time a defendant charged with a felony is facing we must first go to
If it’s been a while since you’ve seen a pile of numbers, definitely click on that link.
But it’s not as complex as it looks. (In fact, I think the design is needlessly complicated). The columns refer to the seriousness level of the crime. The rankings range from one to 16 but there are actually felonies that are “unranked.” A felony is unranked when it’s so rarely charged that the legislature hasn’t gotten around to assigning a seriousness level to it.
To determine the seriousness level of most felonies, we can refer to another table. For example, according to the table second Degree Rape of a Child has a seriousness level of 11 and First Degree Perjury has a seriousness level of five. The legislature determines these levels so if you disagree with a classification, contact your local representative.
The rows refer to the Offender Score, which usually are points received from past criminal history. In other words, someone with a significant prior history will receive a higher sentence than someone with no prior criminal history. The method for calculating an Offender Score can be found starting at subsection 7. Calculating points for prior offenses can be very complicated. Convictions for out-of-state and Federal offenses don’t always fit into the categories described in the statute. It’s a big issue because, as the table shows, a sentence can vary by years depending on a defendant’s offender score.
So going back to the sentencing grid, when we calculate the seriousness of the crime plus offender score, we actually get a sentencing range. This range is called the standard range, and it gives the sentencing judge discretion to sentence someone on the higher end or lower end, based on intangibles like remorse or family history or whatever.
A judge does have the capability to sentence someone above or below the standard range. This is called an exceptional sentence (exceptional up or exceptional down) and they’re relatively rare. The reason they’re rare is because the factors a court can consider are created by statute, and there are not many of them. Furthermore, if a Court does issue an exceptional sentence they need to do some special paperwork to prove to an appellate court their deviation was supported by the facts. So, although it’s good to be aware of exceptional sentences, the majority of felony sentences fall within the standard range on the grid.
Concurrent and Consecutive Sentences
Sometimes a defendant will commit multiple crimes in the same affair. For example, a person could break into a house, steal some stuff, and also set fire to the house. That’s a residential burglary plus theft plus arson. How is that sentence calculated?
There are two questions there. The first is how simultaneous offenses are calculated for an offender score. The second is whether the sentences for those three crimes are served consecutively or concurrently. Consecutive sentences are those that are served one at a time. A concurrent sentence is one that’s served as the same time as the other ones. So if someone was sentenced for two crimes, and each sentence was 12 months long, a consecutive sentence means the total confinement would be 24 months, and a concurrent sentence means the total confinement would be 12 months. In Washington there’s a presumption that sentences will be concurrent. But simultaneous crimes muddy the waters a little.
Here’s how it shakes out: an offender score is calculated by treating the less serious crimes as if they were priors for calculating the sentence of the more serious crime. So if someone had no criminal history, but committed two felonies, the less serious felony would be counted as a prior offense when calculating the sentence of the more serious felony. But, the sentence for both charges would be a concurrent sentence.
Here’s an example. Someone is found guilty of two counts of Child Molestation 3. We can see on the seriousness level table that’s an offense with a level of five. We can also see that for this crime, a defendant receives one point for every prior felony conviction, and the two convictions count as priors to each other. So going back to the sentencing grid a seriousness level of five, with one point, yields a presumptive sentence range of 12-14 months. The person would be sentenced twice to 12-14 months, but those sentences would run concurrently, i.e. be served at the same time.
Enhancements and Alternatives
But wait! Certain crimes, or certain actions while committing crimes, yield aggravating factors, also called sentencing enhancements. These enhancements are added on to the end of every sentence, and by statute, are to be served consecutively to the base sentence. There are quite a number of them, like being armed with a firearm, or committing the crime while already in prison, committing the crime for sexual motivation, or engaging in a high-speed chase with the cops. Many more are listed here. So, if you’re going to commit a felony, try not to do extra bad…stuff?
On the flip side, there are also sentencing alternatives. Certain drug crimes, sex crimes, and first-time felonies all have potential sentencing alternatives or waivers. Qualifying for these can save a person from a lot of incarceration, and often get them some needed treatment. They’re important and worth their own post in the future.
This gets at the basics of felony sentencing, but it truly is a complicated topic. Drug offenses have their own sentencing grid. Certain sex offenses have “indeterminate sentences” that can force a defendant to be in custody longer than their sentence. Washington has a “three-strikes” law that can put a persistent offender in prison for life. And, let’s not get started on capital punishment. But if the subject of felony sentencing interests you, the entire sentencing manual can be found here in a breezy 416 pages. Did I mention yet that this is a complicated subject?
Putting It All Together
It can be difficult to talk about sentencing with my clients, but everyone deserves to know exactly what they’re facing when the government accuses them of committing a crime. Being able to identify possible sentences, as well as alternatives, allows a client to decide how to proceed. If you or someone you know needs a felony criminal defense attorney, be sure to give me a call.