MEMORANDUM Washington State Prosecuting Attorneys. Racial Disproportionality in the Criminal Justice System

MEMORANDUM Washington State Prosecuting Attorneys Racial Disproportionality in the Criminal Justice System INTRODUCTION At the 2011 Winter Meeting, the Korematsu Center for Law and Equality made a presentation about the Task Force on Race and the Criminal Justice System s Preliminary Report on Race and Washington's Criminal Justice System. This presentation raised many questions, including the validity of some of the studies relied upon in the study. Several Prosecuting Attorneys requested a summary of the studies related to Washington and elsewhere to allow prosecutors to intelligently engage in discussion about this issue. This memorandum discusses what is meant by racial disproportionality, the factors that lead to racial disproportionality, Washington-specific studies regarding racial disproportionality, and Washington responses to racial disproportionality. RACIAL DISPROPORTIONALITY DEFINED Racial disproportionality in the criminal justice system exists when the proportion of a racial or ethnic group within the control of the system is greater than the proportion of such groups in the general population. The causes of such disproportionality are varied and can include differing levels of criminal activity, law enforcement emphasis on particular communities, legislative policies, and/or decision making by criminal justice practitioners who exercise broad discretion in the justice process at one or more stages in the system. The evidence of disproportionality does not, in and of itself, establish racial bias. Illegitimate or unwarranted racial disproportionality in the criminal justice system, which may be termed disparity, results from the dissimilar treatment of similarly situated people based on race. In some instances this may involve overt racial bias, while in others it may reflect the influence of factors that are only indirectly associated with race. In some cases disparity results from unguarded, individual- or institution-level decisions that are race-based. Structural racism, derived from the longstanding differential treatment of those with characteristics highly correlated with race (e.g., poverty) can cause or aggravate racial disproportionality as well. There is clear evidence of racial disproportionality in Washington s prison population. However, that is not evidence in and of itself, that the disproportionality is the result of racial bias. The data, moreover, indicates that racial disproportionality is decreasing. 1 1 Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 21 (Dec. 2010) ( In 1990, Whites received 72 percent of sentences, Blacks received 18 percent while Others held 10 percent. By 2005, Whites increased to 77 percent, Blacks decreased to 14 Page 1 of 41

There is some evidence that race is a proxy for other societal ills, including economic distress and educational deficits. High school dropouts account for most of the rise in African American incarceration rates. Research reveals that an African American man born in the late 1960s who dropped out of high school has a 59% chance of going to prison in his lifetime whereas an African 2 American man who attended college has only a 5% chance. Similarly, white men born in the late 1960s faced a lifetime risk of imprisonment that is more than ten times higher for those who dropped out of high school than for those who attended some amount of college. 3 The major participants in the criminal justice system, including prosecutors, are committed to reforms that will reduce illegitimate or unwarranted racial disparity. INTERPRETATION OF STUDIES A large number of national and local studies examine racial disproportionality. When reviewing such studies, one must first examine the research protocol. Was the same test of race or ethnicity used at every point? What types of crimes were examined? How does the structure of this study compare to the structure of a study that yielded other conclusions? Inappropriate Generalization Only a few studies have been conducted in Washington regarding officer contact with citizens. The studies focus almost entirely on drugs. Generalizing the results of these studies to all types of crimes, resulted in one court to find that there is discrimination in Washington's criminal 4 justice system on account of race. This conclusion, however, is based upon an unwarranted premise that people of every race and ethnicity commit all types of crimes at roughly the same rate. Nationwide, it is believed that African Americans and Caucasians use drugs at roughly the same rates, but African Americans are significantly more likely to be arrested and imprisoned for 5 drug crimes. The statistics on selling drugs are less clear-cut, but here too the racial disparities in percent and Others decreased to 9 percent. ; For every 1000 Blacks in 1990, there were 20 felony sentences, for Others there were 4 and for Whites there were 3. By 2005, the rate for Blacks had decreased to 17 per 1000, Others had decreased back to 4 per 1000 and Whites increased to 4 per 1000. ). 2 James Forman, Jr, Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, NYU Law Review, April 2012, Yale Law School, Public Law Working Paper No. 243, at 45. Electronic copy available at: http://ssrn.com/abstract=1966018 3 Id., at 46, citing Bruce Western, Punishment and Inequality in America 26-28 (2006) (The lifetime risk of incarceration for whites who dropped out of high school is 11.2%; for those who attended college, it is only 0.7%.). 4 Farrakhan v. Gregoire, 590 F.3d 989, 995 (9th Cir.), vacated by, rehearing granted by Farrakhan v. Gregoire, 603 F.3d 1072 (9th Cir.), decision on rehearing Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010). 5 Michael Tonry & Matthew Melewski, The Malign Effects of Drugs and Crime Control Policies on Black Americans, in Thinking about Punishment: Penal Policy Across Space, Time and Discipline 104-105 (Michael Tonry ed. 2009). Page 2 of 41

arrest and incarceration rates exceed any disparities that might exist in the race of drug sellers. 6 Violent crime is a different matter. While rates of drug offenses are roughly the same throughout the population, African Americans are overrepresented among the population for violent offenses. For example, the African-American arrest rate for murder is seven to eight times higher than the white arrest rate; the black arrest rate for robbery is ten times higher than the white arrest 7 rate. Murder and robbery are the two offenses for which the arrest data are considered most reliable 8 as an indicator of offending. On the other hand, Caucasians are overrepresented among the 9 population for sex offenses. Early studies concluded that 80 percent of the racial disproportionality in imprisonment could 10 be explained by differential rates of crime commission. Today, the same 80 percent figure is 6 Id. at 105 09. 7 Henry Ruth & Kevin R. Reitz, The Challenge of Crime: Rethinking Our Response 33 (2003). For other crimes the differences are smaller. For burglary, larceny, and motor vehicle theft, for example, the black arrest rates in 1990 were three to four times the white arrest rates. Id. 8 Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. COLO. L. REV. 743, 752 (1993); Gary Lafree, Losing Legitimacy: Street Crime and the Decline of Social Institutions in America 49 (1998) (.Both critics and supporters of UCR [Uniform Crime Reports] agree that its quality is generally highest for more serious crimes... because citizens are more likely to report more serious crimes to police and police are more likely to make arrests for more serious crimes..). 9 See Washington State Institute for Public Policy, Sex Offender Sentencing in Washington States: How Sex Offenders Differ From Other Felony Offenders at 2 (Sep. 2, 2005) (offenders involved in felony sex convictions are predominately European American (84 percent)); Janis Wolak, Kimberly Mitchell & David Finkelhor, Crimes Against Children Research Ctr., Internet Sex Crimes Against Minors: the Response of Law Enforcement viii (2003) (a study sponsored by the Department of Justice reporting that the.vast majority of [Internet sex-crime] offenders were non-hispanic White males older than 25 who were acting alone.); Loren Rigsby, A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity and Unpredictability in Federal Sentencings for Child Pornography, 33 Seattle U. L. Rev. 1319, 1333 34 (2010) (explaining that 85.6% of child pornography defendants are white, and that these defendants are, on average, much older and more educated than the majority of defendants in federal prosecutions). Sentences for child pornography in Washington were significantly reduced by the Washington Supreme Court s unit of prosecution decision in State v. Sutherby, 165 Wn.2d 870, 204 P.3d 916 (2009). Legislative action in 2010 should result in a lengthening of such sentences. See generally Laws of 2010, ch. 227. 10 See generally Alfred Blumstein, On the Racial Disproportionality of the United States. Prison Populations, 73 J. Crim. L. & Criminology 1259, 1274 (1982). Some researchers claim that mid- to early-1990 studies indicated that far less of the Black/White difference in imprisonment was warranted by the measurable legally relevant factor of higher criminal involvement by Blacks. See, e.g., Robert Crutchfield, Racial Disparity in the Washington State Criminal Justice System at 7-10, 69 (Oct. 25, 2005) (citing to a study that examined racial composition of prisons as of December 31, 1982, to conclude that only 40 percent of imprisonment disparity in Washington can be explained by arrest disparity); Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington s Criminal Justice System at 12 (2011) ( differential rates of crime commission (as measured by arrest) explained only 20% of Black-White disproportionality in Washington State prisons. ); R. Crutchfield, G. Bridges, and S. Pitchford, Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity, 31 J. Res. Crime & Deliquency 166 (1994) (based upon inmate population in Washington s prison on December 31, 1982, concludes that only 40% of Black-White disproportionality can be based upon differential rates of crime commission). These studies do not take criminal history, a relevant factor in determining length of confinement under both Page 3 of 41

considered warranted when the focus is on violent crimes, but only around 60 percent of differences 11 in rates of incarceration can be accounted for in drug offenses. The Task Force on Race and the Criminal Justice System s Preliminary Report on Race and Washington s Criminal Justice System makes no effort to segregate violent crimes from drug crimes or to take into account Washington s sentencing policies which have significantly reduced prison terms for non-violent offenses. The Task Force takes the position that less than 64 percent of the racial disproportionality in imprisonment in Washington is a function of differential rates of crime commission. 12 Ethnicity vs. Race 13 Quality data on Hispanics in the prison systems is often lacking. Police agencies generally do not include the ethnic origin for arrestees. Arrestees of Hispanic origin are generally coded as Caucasian/White or as African American/Black. Researchers will generally conduct a Hispanic surname analysis to determine whether an individual should be reclassified as Hispanic. 14 Unfortunately, there is no universally accepted manner for doing such an analysis. In some studies the surname analysis is only conducted on the arrestees that are originally coded as White or Caucasian, but not on arrestees that are originally 15 coded as non-white. indeterminate sentencing and the Sentencing Reform Act, into account. Robert Crutchfield, supra at 5-7. 11 See R. Crutchfield, Racial Disparity in the Washington State Criminal Justice System at 59-60 (Oct. 25, 2005) (discussing preliminary results for Professor Albert Blumstein of Carnegie Mellon University). 12 Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington s Criminal Justice System at 11-13 (2011). The Task Force does acknowledge that the 64% represents an increase of the proportion of racial disproportionality in Washington prisons that reflects the racial distribution of arrest rates. 13 Marc Mauer & Ryan S. King, The Sentencing Project, Uneven Justice: State Rates of Incarceration By Race and Ethnicity 12 n.14 (July 2007) (.Reporting on Hispanics in the criminal justice system has been limited and often inaccurate over many years, as evidenced by the fact that 11 states in this analysis do not provide any data on Hispanic inmates..); Damian J. Martinez, Felony Disenfranchisement and Voting Participation: Considerations in Latino Ex-Prisoner Reentry, 36 Colum. Hum. Rts. L. Rev. 217, 222 (2004) ([G]overnmentally-collected criminal justice data during the 1980s and 1990s lumped incarcerated Latinos into the racial classifications of whites and African Americans..); id. at 223 24 (noting that even the category Latino is overbroad, and encouraging researchers to focus on differences between Latino sub-groups). 14 Word, D.L. & Perkins, Jr. C., Building a Spanish Surname List for the 1990's A New Approach to an Old Problem (1996). Washington, D.C.: U.S. Census Bureau. 15 Compare K. Beckett, K. Nyrop, L. Pfingst & M. Bowen, Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle, 52 Social Problems 419, 424 (2005) (Hispanic surname analysis was applied only to whites in order to avoid double-counting non-whites (i.e., counting black Latinos as black and Latino). As a result, only white Latinos appear in the Latino category. ), with M. Smith & R. Engel, Race, Drugs and Policing in Seattle: A Reexamination of the Evidence, at 26-27 (Feb. 10, 2008) ( Of the 425 arrestees in our data set with Hispanic surnames, 76 (17.8%) were non-white, and the therefore following the methods used by Beckett, et al., were not considered to be Hispanic. ). Page 4 of 41

In some studies researchers may include names that are coded as Occasionally Hispanic in the Hispanic demographics, while other researchers draw the line at Moderately Hispanic. 16 In some studies the surname analysis is not conducted on females because married women often change their surnames to that of their spouses. 17 The choices made by a researcher in conducting the surname analysis can result in vastly different 18 estimates of the proportion of Hispanics in a particular sample. Differences in Data Researchers obtain data in different ways and from different sources. Sometimes reporting 19 deadlines can result in the exclusion of significant quantities of data. Sequential studies issued by 20 the same organization do not always include data from the same sources. As a consequence, extreme caution must be exercised when comparing statistics in one report to figures published in other reports. Failure to carefully consider all footnotes, definitions, and explanatory text can lead 16 Word, D.L. & Perkins, Jr. C., Building a Spanish Surname List for the 1990's A New Approach to an Old Problem (1996), recommends a value to surnames based upon the percentage of individuals with that surname that indicated they were of Hispanic origin in the 1990 U.S. Census: 1. >0.75 = Heavily Hispanic 2. 0.50 0.749 = Generally Hispanic 3. 0.25 0.499 = Moderately Hispanic 4. 0.05 0.249 = Occasionally Hispanic 5. < 0.049 = Rarely Hispanic Word & Perkins noted that with very few exceptions every frequently occurring surname is either Heavily Hispanic or Rarely Hispanic and there is not middle ground.... Fewer than 1000 surnames are sufficient for capturing 80 percent of the population in the United States. Id. at 13. 17 Word and Perkins (1996) recommends that Hispanic surname analyses not be conducted on females. 18 M. Smith & R. Engel, supra not 15, at 27-28 (utilizing the methodology described in Beckett et al s study to the drug arrestees in the current study results in 18.8% of the arrestees being considered Hispanic, while the methodology chosen by Smith and Engel estimated that 5.7% of the same drug arrestees were Hispanic.). 19 The Sentencing Guidelines 2001 report on juvenile offenders excluded dispositions entered in the State s most populous county. See N. Lee, Sentencing Guidelines Commission, Juvenile Offenders: A Study of Disproportionality and Recidivism, at 1 (2001). The Superior Court 2001 Annual Caseload Report indicates that statewide there were 27,094 juvenile offender cases which resulted in the imposition of 16,238 sentences. Nearly 19 percent of juvenile offender cases were filed in King County. Sentences were entered in 2505 King County offender cases, representing 15. 4 percent of all sentences. 20 Compare See N. Lee, supra note 19, at 1 (2001) (King County data omitted), with Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2005, at 2 (December 2005) (providing a county sentencing ratio for minorities in King County), and Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 2 (May 2008) (providing a county sentencing ratio for minorities in King County). Page 5 of 41

to faulty interpretations and erroneous conclusions. WHERE DOES RACIAL DISPROPORTIONALITY APPEAR Police Agencies The racial disproportionality in the justice system originates predominantly at the point of first contact with law enforcement. Depending on the level and type of crime, the disproportionality may increase, remain roughly the same, or in some cases decrease as the case moves through the justice system; however, this change is typically not significant when compared to the disproportionality that occurs at arrest. While the point of first contact occurs across a wide spectrum of interactions between the police and the public, a substantial portion of the racial disproportionality is concentrated around certain policies and practices. Populations of color are disproportionately likely to encounter the justice system as a result of extensive policing of geographic hot spots (e.g. CODEFOR), school referral practices, and current policies for dealing with drug offenders. Most Washington investigations into allegations of bias policing either examine traffic stops or drug investigations. The studies do not present a uniformly grim nor a uniformly rosy picture. WSP Traffic Stop Studies Traffic stop data collected by the Washington State Patrol ( WSP ) has been subjected to multiple analyzes, most recently in 2007. The 2007 determined that there is no evidence of a systematic practice of racial profiling in either who is stopped, who is issued a citation, who is 21 searched, and to whom force is applied by WSP officers. The report does note, however, a few instances of noteworthy minority/non-minority disparities in the use of police discretion by the 22 officers of the WSP. Specifically, a higher proportion of certain minorities were stopped in 23 daylight hours in a few Autonomous Patrol Areas. For the most part, however, the data indicates 21 N.Lovrich, M. Gaffney, C. Mosher, T. Pratt, and M. Pickerill, Results of the Monitoring of WSP Traffic Stops for Biased Policing: Analysis of WSP Stop, Citation, Search and Use of Force Data and Results of the Use of Observational Studies for Denominator Assessment, at 2 (2007). 22 Id. 23 Id., at 15-17 ( while there is considerable variation in the overall proportion of daylight stops across autonomous patrol areas, (adhering to the five percentage point criterion) a higher proportion of Blacks than Whites are stopped in daylight hours in four APAs (APA 12 - Sunnyside; APA 23 - Kelso; APA 37 - Hoquiam; APA 39 - Raymond). A higher proportion of Native-Americans than Whites are stopped in daylight hours in five APAs (APA 4 - Thurston County; APA 5 - Seattle North; APA 13 - Kennewick; APA 15 - Colville; and APA 21 - Vancouver). A higher proportion of Asians/Pacific Islanders than Whites are stopped in daylight hours in three APAs (APA 27 - Okanogan; APA 30, Bellingham; and APA 39 - Raymond). A higher percentage of East Indians than Whites are stopped in four APAs (APA 11 - Yakima; APA 28 - Ephrata; APA 30 Bellingham; A higher proportion of Blacks than Whites are stopped in daylight hours in four APAs located in Sunnyside, Kelso, Hoquiam, and Raymond. A higher proportion of Native-Americans than Whites are stopped in daylight hours in five APAs located in Thurston County, Seattle North, Page 6 of 41

that minority drivers tend to be under-represented in daylight stops by WSP officers. 24 25 A minority driver is more likely to receive a citation than a non-minority driver. A number of important differences across the racial groups with respect to both the number of violations observed as a result of a traffic stop and the seriousness of those violations influence the decision of WSP Troopers to issue citations. A multivariate analysis of the data reveals that East Indians were more likely to be issued 26 citations than the comparison group of non-hispanic Whites in one APA. Asian drivers were 27 significantly more likely to be issued citations in five of the state s APAs. Native Americans, African Americans, and Hispanics were not more likely to be issued a citation in any single APA, 28 and were significantly less likely to receive a citation in at least one APA. A separate multivariate analysis was performed for drivers whose contact record indicates that they had only one recorded violation. The purpose of this analysis was to see if officers record a greater number and severity of violations for members of minority groups due to bias rather than the actual driving behavior of those contacted. These multivariate statistical analyses reveal somewhat more evidence of potential bias in additional APAs, they do not indicate the existence of systematic bias in citing minorities who have a single violation recorded by the WSP. 29 Kennewick, Colville, and Vancouver. A higher proportion of APA 39 - Raymond). ). 24 Id., at 17. 25 Id., at 26. 26 Id., at 33 (Bellingham APA). Results should be treated with caution due to the large number of APAs in which there were too low a number of contacts with members of this group to allow for reliable statistical analyses. 27 Id., at 33 (Kelso, Ellensburg, Bellingham, Mount Vernon, and Everett (Central) APAs.) 28 Id., at 33 (Native Americans were significantly less likely to receive a citation in Yakima APA; African Americans were significantly less likely to receive a citation in Tacoma Freeway, Seattle North, Everett Central and Everett East APAs; Hispanics were significantly less likely to be issued citations in the Seattle North, Seattle East, Wenatchee, and Hoqiuam APAs). The reduction in citations issued to Native Americans in the Yakima APA may arise from Confederated Tribes of the Colville Reservation v. Washington, 938 F.2d 146 (1991), cert. denied, 503 U.S. 997 (1992). This case held that the State of Washington is not allowed to enforce its speeding laws, which are civil infractions, upon public roads within the Colville Reservation. 29 N.Lovrich, et.al, supra note 21, at 37 ( African American drivers who had only one recorded violation were not significantly more likely to be issued a citation in a single APA, and were significantly less likely to be issued a citation in the Tacoma Freeway and Spokane APAs. Native-Americans with a single recorded violation were not significantly more likely to be issued a citation in any APA, and were significantly less likely to be issued a citation in theyakima APA. Hispanics with a single violation were significantly more likely to be cited in the Sunnyside, Walla Walla, and Okanogan APAs, and were significantly less likely to be cited in Bellingham and Hoqiuam. East Indian drivers with a single recorded violation were significantly more likely to be cited in the Bellingham APA, while Asian drivers with a single violation were significantly more likely to be cited in the Ephrata, Bellingham, Mount Vernon, Oak Harbor and Port Angeles APAs. ). Page 7 of 41

A third multivariate analysis was conducted to examine whether officers were demonstrating bias by piling on violations, that is issuing a greater number of citations to members of minority groups than they do to Non-Hispanic Whites for the same type of offenses. This analysis indicated that there were no APAs where African American drivers, Native Americans, or East Indians were issued more citations. Hispanics were issued a greater number of citations in one APA, and significantly fewer citations in four APAs. Asians with more than recorded violation were issued 30 a greater number of citations in seven APAs. Despite these variances, there is no evidence of systematic racial bias on the part of the WSP at the level of which drivers are issued citations. 31 Searches resulting from traffic stops are highly infrequent. Only 3.3 percent of motorists 32 contacted by WSP between November 1, 2005, and September 30, 2006. Native Americans, Hispanics and African Americans are more likely to be searched than Whites, while Asians/Pacific 33 Islanders and East Indians are the least likely to be searched. The likelihood of finding contraband was equal for Whites, Blacks, and Native Americans when the search is a low discretion search. 34 The hit rate for Whites is greater than for minorities when the search is a high discretion 35 search. These results are essentially the same as in the 2003-2004 period analyzed in previous reports. The disproportionality in search rate is troubling, but whether it is the result of purposeful discrimination is unclear. Researchers who apply univariate descriptive statistics (e.g. frequencies and proportions) or bivariate analyses to these findings have concluded that the difference in search 30 Id., at 38 ( there were no APAs where African American drivers were issued a greater number of citations, and two (Bellingham and Everett East) in which they were issued significantly fewer citations. There was not a single APA in which Native-Americans were issued a greater number of citations, and one (Wenatchee) in which they were issued significantly fewer citations. Hispanics were issued a greater number of citations in Goldendale, and significantly fewer citations in Seattle East, Walla Walla, Wenatchee, and Ellensburg. East Indians were not issued more citations in a single APA, while Asians with more than one recorded violation were issued a greater number of citations in seven APAs (Thurston County, Seattle South, Kelso, Chehalis, Mount Vernon, and Everett Central). ). 31 Id. 32 Id., at 42-43. 33 Id., at 45. 34 A low discretion search is triggered by a preceding event. Low discretion searches include searches incident to arrest, impound or inventory searches, and warrant searches. Id., at 42. The hit rate in low discretion searches was.26 for White, Black, and Native American. The hit rate for other racial/ethnic groups were.17 for Asian/Pacific Islander,.20 for Hispanic,.10 for East Indian, and.21 for Other. Id., at 46. The number of low discretion searches, or at least the mix of low discretion searches, is likely to be impacted by relatively recent legislative enactments and case law. See generally Arizona v. Gant, 556 U.S., 129 S. Ct. 1710 (2009) (placing new restrictions on searches of vehicles incident to arrest); State v. Snapp, No. 84223-0, Wn.2d, P.3d (Apr. 5, 2012) (Const. art. I, 7 prohibits nearly all warrantless searches of vehicles incident to the arrest of an occupant); Laws of 2011, ch. 167 (mandatory 12-hour impound of vehicles when driver is arrested for DUI). 35 High discretion searches include consent searches, Terry searches or frisks, and K-9 searches. N.Lovrich, et al., supra note 21, at 42. The hit rate in high discretion searches is as follows: White.18%; Native American.17%; Black and Hispanic.15%; Other 13%; East Indian.11%; Asian/Pacific Islander.10%. Page 8 of 41

36 rate is not warranted by any legitimate policing purpose. Other researchers, citing to the case law standard that probable cause for a warrant and the reasonableness of a search are to be determined 37 by the totality of the circumstances, argue that even a multivariate analysis alone cannot prove or disprove bad purpose by police officers or get at other important but idiosyncratic explanatory variables such as citizen or officer demeanor. 38 A review of WSP use of force data for 2005, across the 270 incidents of use of force for which digital records were available indicated that there was no relationship between race/ethnicity 39 and frequency of use of different levels of force employed by WSP officers. An analysis of 2006-7 use of force data allowed researchers to examine whether there was a proper correspondence between 40 the suspect s behavior and the officer reaction. The data revealed no evidence of systemic bias in the application force vis-á-vis racial/ethnic minorities. 41 Drug Investigations Seattle has been the location of a number of investigations into whether race plays a role in arrests for drug offenses. In 2004, public defenders associated with Seattle s Racial Disparity Project commissioned Associate Professor Katherine Beckett to prepare a report analyzing the extent 42 and causes of racial disproportionality in Seattle drug delivery arrests. The data collected for this report and other research submitted to the King County Superior Court in State v. Johnson, et al., resulted in two articles. One focuses on drug possession arrests and the second article focuses on racial disproportionality in drug delivery arrests. 43 Utilizing a needle exchange survey and public drug treatment admission data, Professor Beckett opines that Whites are overrepresented among those who use methamphetamine, that Blacks are overrepresented among uses of cocaine, and that rates of drug use among Latinos are very close 44 to what would be predicted on the basis of Seattle demographic data. The racial/ethnic 36 See, e.g., Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington s Criminal Justice System at 16-17 (2011). 37 See, e.g., Illinois v. Gates, 462 U.S. 213 (1983). 38 See, e.g., J. Pickerill, C. Mosher, and T. Pratt, Search and Seizure, Racial Profiling, and Traffic Stops: A Disparate Impact Framework, 31 Law & Policy 1 (Jan. 2009). 39 N.Lovrich, et al, supra note 21, at 53. 40 Id., at 54. 41 Id., at 56. 42 See Muhammad Shabazz Farrakhan, et al., v. Christine Gregoire, et al., No. CV-96-076-RHW (U.S. Dist. E. Wash.), Katherine Beckett Declaration: Farrakhan v. Locke, at 1 (Filed 01/27/2006). 43 Id. 44 K. Beckett, et al., supra note 15, at 426. Page 9 of 41

composition of Seattle s marijuana and crack users cannot be determined with precision, so Professor Beckett estimated that one-half of those who use crack cocaine are White. 45 46 A comparison of drug arrest statistics from January 1999 through April 2001 a racial/ethnic 47 composition of arrestees that is different from the estimated composition of users of each drug. The comparisons suggest that Blacks are significantly overrepresented among marijuana, methamphetamine, and crack arrestees. Latinos are significantly overrepresented among heroin and 48 crack arrestees, and Whites are significantly underrepresented among crack arrestees. Since most drug arrests involved crack cocaine, the number of Black possession arrestees outnumbered White possession arrestees. 49 Why most possession arrests involved crack users is not clear. Because Professor Beckett 50 could not find a significant link between violence or deaths and crack cocaine, she examined two other race-neutral explanations for the emphasis on crack interdiction: greater frequency of crack transactions and differential access to private spaces. Seattle s drug market characteristics for four drugs (methamphetamine, powder cocaine, crack cocaine and heroin), and the location of drug transactions (indoors or outdoors) were 51 estimated using Arrestee Drug Abuse Monitoring (ADAM) Program data. According to the calculations, crack cocaine and heroin are each involved in approximately 33.3 percent of the outdoor drug transactions, nearly 23 percent of outdoor drug transactions involved powder cocaine, and methamphetamine is estimated to be involved in 10.7 percent of the outdoor drug transactions. 52 Actual arrest data differs significantly from the estimated characteristics, with 75.2% of the possession arrests involving crack cocaine. 53 Access to private space is differentially distributed across socio-economic (and, hence, racial) groups. More impoverished crack users might be more likely to obtain the drug outdoors. Thus, a greater proportion of arrests will occur at an outdoor venue than an indoor venue. The Seattle arrest 45 Id., at 426. This estimate is based upon averaging the results of the needle exchange survey and the public treatment data. This estimate is consistent with national data, which indicate that just over half of U.S. crack users are white and that just fewer than half are black. Id. 46 Id., at 423. 47 Id., at 426. 48 Id. At 428. 49 Id., at 429. 50 Id., at 433-34. 51 Id., at 424 and 431. 52 Id., at 430-32. 53 Id., at 432. Page 10 of 41

reports establish that Whites composed a larger share of those arrested indoors (49.5 percent) than outside (38.5 percent.) Blacks compose a plurality of those arrested outdoors (49.9 percent) but 38.5 54 percent of those arrested indoors. With over 72 percent of the possession arrests occurring outdoors, socio-economic and racial differences in access to private spaces do appear to contribute to the overrepresentation of Blacks among drug possession arrestees. 55 Professor Beckett contends that police focus on outdoor venues is an inefficient policy choice 56 that is not a legal necessity. Buy-bust operations in Seattle yielded significantly smaller amounts 57 of narcotics then a search warrant arrest. Weapons were far more likely to be seized in the course 58 of search warrant operations than in connection with buy-bust operations. Professor Beckett further contends that deployment choices with respect to which outdoor markets merited attention were not 59 made in response to citizen complaints. Her concerns were apparently supported by a separate study conducted by Tal Klement and Elizabeth Siggins. 60 Ms. Klement and Ms. Siggins also contend that racial disproportionality in drug arrests are exacerbated by the focus on sellers vs. buyers. They acknowledge that sellers in many of the public drug markets are disproportionately people of color, while the clientele are more racially 61 diverse. Ms. Klement and Ms. Siggins contend that the moral culpability of sellers is not so clear as the line between users and dealers in the open street markets is an extremely fine one. 62 54 In a subsequent study, Professor Beckett contends that blacks arrested indoors outnumber whites by a ratio of more than 2 to 1". K. Beckett, K. Nyrop, and L. Pfingst, Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests, 44 Criminology 105, 123 (2006). 55 K. Beckett, et al., supra note 15, at 434-45. 56 It is much more difficult to enforce against private activity. It is more dangerous to police personnel to go into a house undercover and investigations into sales at private locations require more resources. See T. Klement and E. Siggins, A Window of Opportunity: Addressing the Complexities of the Relationship Between Drug Enforcement and Racial Disparity in Seattle, 1 Seattle Journal for Social Justice 165, 206 (2002) (quoting former Seattle Police Chief Chief Kerlikowske). 57 K. Beckett, et al., supra note 15, at 434 (buy bust operations yielded an average of.1 gram of narcotics; search warrant arrests yielded an average of 52 grams of illegal drugs). 58 Id., at 434 (52 weapons were seized in the course of warrant operations in 3 of the four precincts, while only two weapons were seized in conjunction with buy-bust operations). 59 Id., at 435. 60 See T. Klement and E. Siggins, A Window of Opportunity: Addressing the Complexities of the Relationship Between Drug Enforcement and Racial Disparity in Seattle, 1 Seattle Journal for Social Justice 165, 204 (2002) (the pattern of Narcotics Activity Reports (NAR), which are filed when a citizen calls to report narcotic activities, do not match the pattern of arrest levels). 61 Id., at 211. Professor Beckett contends that racial and ethnic patterns of involvement in drug delivery appear to vary significantly by drug. See K. Beckett, et al, supra note 54, at 116-18. 62 T. Klement and E. Siggins, supra note 54, at 190 and 213-14. Page 11 of 41

Former public defendant Robert Boruchowitz suggests that if the buyers [of drugs] were more afraid of getting caught, it would be a tougher market for the sellers. 63 The City of Seattle funded a research project to examine the concerns raised in Professor Beckett s studies. The research was conducted by Michael R. Smith, J.D., Ph.D., Chair, Department of Criminology and Criminal Justice, University of South Carolina, and by Robin S. Engel, Ph.D, Director, University of Cincinnati Policing Institute. Their findings and expert opinions are contained in a document entitled Race, Drugs and Policing in Seattle: A Reexamination of the Evidence. This document is unpublished, but is available from WAPA. The research protocols developed by Smith and Engel varied from those utilized in Beckett s studies. The 2003 observation study that was incorporated into Beckett s studies, relied upon field observations in two defined areas using an unidentified key informant and those involved in public venue transactions to help former substance abusers identify drug deals and the nature of the 64 drugs being sold. Smith and Engel s 2007 study used experienced narcotics officers from a neighboring city and criminal justice graduate students as the observers. The officers would alert 65 the graduate students to an identified drug transaction and both the officer and the graduate student independently recorded the race/ethnicity and gender of the participants in the transaction. 66 The 2007 observers recorded far fewer drug transactions than did the 2003 observers. The Beckett researchers claimed to have observed 686 individuals involved in drug delivery Downtown over 60 hours of observation. The Smith team observed only 78 persons selling drugs over 54 hours 67 of observation in the Downtown area. In the Capitol Hill observation, Beckett s researchers 68 reported 102 purchasers to Smith s researchers 13 transactions. 63 Id., at 214. 64 K. Beckett, et al, supra note 54 at 112-113; K. Beckett, et al., supra note 15, at 422-23. The protocol used in the observational studies is more fully set out in K. Nyrop, An Ethnographic Comparison of Public Venue Drug Markets in Two Seattle Neighborhoods, Unpublished Report (April 2003). at 6. 65 Officers utilized the Terry v. Ohio reasonable suspicion standard. M. Smith and R Engel, supra note 15, 66 Id. 67 Id., at 11. 68 Id., at 13. Page 12 of 41

The 2007 observers also recorded a significant difference in the racial/ethnic make up of sellers than that recorded by the 2003 observers: DOWNTOWN CAPITOL HILL Seller Race/Ethnicity Whites of non- Hispanic origin 69 70 71 72 2003 2007 2003 2007 39% 16.7% 95% 50% Black 38% 75.8% 20% Hispanic 16% 1.5% 20% Other 4% 3.0% 5% person of color Unknown 3.0% 10% 69 K. Nyrop, supra note 64, at 12. 70 M. Smith and R Engel, supra note 15, at 11 (Repeat sellers removed from the 2007 data.) 71 K. Nyrop, supra note 64, at 10-11. 72 M. Smith and R Engel, supra note 15, at 12 (Repeat sellers removed from the 2007 data.) Page 13 of 41

The 2007 observers also recorded a significant difference in the racial/ethnic make up of purchasers than that recorded by the 2003 observers: DOWNTOWN CAPITOL HILL Purchaser Race/Ethnicity Whites of non- Hispanic origin 73 74 75 76 2003 2007 2003 2007 44% 32.3% 95% 81.8% Black 39% 54.8% 9.1% Hispanic 12% 8.1% Asian 1.6% Other 3% 3.2% 5% person of color 9.1% Unknown/missing 1 Several reasons may explain the differences between the studies in both the number and racial composition of the dealers and buyers observed. First, the drug markets in the Downtown and Capitol Hill areas may have changed. The number of drug arrests and calls for service involving drug complaints in these two areas across the five year period suggests that this is unlikely. 77 Second, the differences in the findings across the two studies is most likely due to the differences in the observation methods employed. The observers in the 2003 study might have been better at identifying drug transactions than the narcotics officers who served as observers in the 2007 study. 78 Third, the purpose of the 2007 study was to estimate the racial composition of open air drug market sellers and buyers risk of criminal apprehension for comparison to drug arrests. The 2003 study focused on sellers and dealers who were attempting to avoid police detection. Whether the 73 K. Nyrop, supra note 64, at 12. 74 M. Smith and R Engel, supra note 15, at 12. 75 K. Nyrop, supra note 64, at 10-11. 76 M. Smith and R Engel, Race, supra note 15, at 13. 77 Id., at 13-14. 78 Id., at 14. Page 14 of 41

2003 or the 2007 study produced the most reliable benchmark for comparison to drug arrests is an 79 open question. The Smith and Engel study also examined calls for service data to see if Beckett s position that deployment choices did not match citizen requests. The Smith and Engel study considered 911 80 calls, while Beckett considered only Narcotics Activity Reports (NARs) in determining whether 81 officer were deployed in a manner consistent with citizen complaints. NARs make up less than 25 82 percent of all drug complaints in Seattle. In total, Smith and Engel examined 11,484 drug-related 911 calls that included a description of the suspect(s) race to determine the racial composition of drug suspects identified by callers. A similar analysis was made of the 911 calls for service from January 1, 2002 through December 31, 2002. 83 The Smith and Engel study relied upon statistical reporting areas (SRAs) as the unit of analysis. SRAs are small geographic areas used by the Seattle Police Department (SPD) for 84 reporting purposes. Most SRAs contain between one and court city blocks. Beckett s studies used Census tracts. 85 The Smith and Engel study revealed that drug-related citizen complaints are much more highly concentrated in the Downtown Pike/Pine Street Corridor than they are in the Capitol Hill area along Broadway. Contrary to Beckett s assertions, the pattern of 911 drug complaints suggests that 86 police enforcement activity ought to be concentrated more heavily in the Downtown area. At the SRA level, there is a moderately strong relationship between drug arrests and drug complaints. 87 There is some evidence, however, that SPD drug enforcement activity in the Downtown area is 88 somewhat higher than one might expect based on citizens requests for services. There are some 79 Id., at 14-15. 80 NARs are written complaints of drug activity that citizens in Seattle typically make at their local police precincts. These are generally non-emergency reports that can be initiated by citizens or police officers. According to Seattle officials, NARs are typically based on suspicious or unusual activity around residences or businesses. Id., at 28. 81 See K. Beckett, et al., supra note 54 at 126-127. 82 See Bob Scales August 12, 2005, letter to Ray Paternoster, Professor, Department of Criminology; M. Smith and R Engel, supra note 15, at 28-29 ( For example, between January 2004 and October 2007, SPD recorded only 4,305 NAR reports, as compared to 23,653 narcotics-related [911] calls for service. ). 83 M. Smith and R Engel, supra note 15, at 15-16. 84 Id., at 16-17. 85 See K. Beckett, et al, supra note 54, at 114, 117,and 122. 86 M. Smith and R Engel, supra note 15, at 17-18. 87 Id., at 37. 88 Id., at 38. Page 15 of 41

race-neutral reasons for this, such as a need to reduce crime in high tourism areas. 89 The Smith and Engel study also revealed that the racial composition of reported drug suspects from calls for service varied significantly from Beckett s observational findings. In the Downtown area, Blacks comprised 38% of the dealers observed in Beckett s 2002 study, but almost 66% of the 911 complaints about drug sellers in 1006-2007. Whites and Hispanics were underrepresented in the 911 call data compared to the Beckett study. Similar differences between calls for service data and the 2002 observations existed in the Capitol Hill area. Specifically, Blacks comprised a much larger percentage of the caller-identified drug dealers in 2006-07 than reported in 2002 17.9% compared to 5% while White dealers were underrepresented when compared to the 2002 data. In the Capitol Hill area, Blacks and Hispanics comprised a larger percentage of the drug purchaserrelated 911 complaints than they did in the Beckett observation data, while Whites were underrepresented. 90 The difference in ethnic composition of the drug market as established by the 911 calls and by Beckett s observational study does not appear to be due to changes in the drug market in the Capitol Hill area. Changes in the Downtown area do not explain the differences between the two studies, as a comparison of 911 calls for service between Jan. 1, 2002 and Dec. 31, 2002, with the 2006-07 calls for service suggest that citizens were more likely to have complained about Black drug sellers and buyers in the Downtown area in 2002 than in 2006-07. Specifically, the percentage of complaints of drug selling involving Black sellers decreased from 83.5% of the calls in 2002 to 65.8% of the calls in 2006-07. Likewise, the percent of buyers identified as Black decreased from 61.8% of the calls for service in 2002 to 46.3% of the calls for service in 2006-07. 91 A comparison of drug arrest data for the 2006-07 period to the 2007 police officer observational data and the 2006-07 911 calls for service data. When the racial composition of arrests is compared to citizen complaints about drug-related activity and the direct on-site observations of drug activity, only slight differences emerge. None of the differences rise to the level 92 described by Beckett. The results are still troubling, as Blacks were arrested in the Downtown area at twice their expected rate based upon citizen complaints. This level of disproportionality is 93 reduced when compared to the observations of drug activity in the Downtown area. Ultimately, Smith and Engel concluded that the available evidence either mitigates against the existence of racial bias in SPD drug enforcement practices or, as to the Downtown area, is inconclusive. 94 89 Id., at 39. 90 Id., at 18-19. 91 Id., at 20-21. 92 Id., at 31-32. 93 Id., at 35. 94 Id., at 43. Page 16 of 41

Prosecution Decisions Prosecutors charging decisions and sentencing recommendations have an important impact on criminal justice outcomes. In Washington, charging decisions are guided by race-neutral statutory 95 96 standards and by office guidelines. Some of the legally relevant factors that guide prosecutor decision making, such as criminal history, are easily quantifiable, others, such as witness credibility, 97 are not. Washington State Minority and Justice Commission s 1995 Study The Washington State Minority and Justice Commission sponsored a 1995 study of prosecutor discretion in the King County Prosecuting Attorney s Office. Data for this study were obtained from the King County Prosecuting Attorney s automated database, 500 felony case files, 98 and interviews with 15 King County deputy prosecuting attorneys. While the study determined that the most important factors in the prosecution of felony cases in King County were legally relevant factors, some observable instances where racial and ethnic differences did appear in the handling of cases. 99 The major results of the multivariate analyses (analyses of race effects on processing when other relevant factors have been statistically taken into account) are: 1. The filing of felony charges by the King County Prosecutor s Office varies by the type of offense and by the race of the offender. Charges were filed in 67% of drug-related referrals, 64% of crimes against persons, and 58% of all other/property-related referrals. White offenders were the least likely to be charged (60%), compared to 65% of all minority offenders. Multivariate analyses show that those differences by race in the probability of filing persist, even after adjusting for the possible effects of other offender characteristics and of legally relevant factors. 95 See RCW 9.94A.401 and RCW 9.94A.411. 96 See, e.g., Russell Hauge, Kitsap County Prosecuting Attorney, Mission Statement And Standards and Guidelines (May 7, 2007), http://www.kitsapgov.com/pros/standardsguidelines2007.pdf (Last visited Apr. 3, 2012); Snohomish County Prosecuting Attorney s Office, Charging and Disposition Standards (July 1, 2011), http://www.co.snohomish.wa.us/documents/departments/prosecuting_attorney/charging&dispositionstandards-201 1.pdf (Last visited Apr. 3, 2012). 97 R. Crutchfield, J. Weis, R. Engen, and R. Gainey, note in Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County (November 1995), that Evidentiary requirements are likely, of course, to be the single most important determinant of any decision to file charges. The studies generally assume, however, that the quality of evidence available to prosecutors does not differ systematically by the offender s race. Id., at 30 n. 8. 98 Id., at 3. 99 Id., at 5. Page 17 of 41

Among offenders who were charged, most plead guilty (65%). There were few differences in dispositions by the race of the offender. African American offenders were less likely to plead guilty, and more likely to go to trial. While this did not affect the overall conviction rate for African American offenders, it could potentially result in African American offenders receiving, on average, slightly more severe sentencing recommendations and more severe sentences, independent of their offenses. 2. In general, the results show few disparities by race of the offender in the various recommendations of deputy prosecuting attorneys, as represented in the PROMIS data and the 500 sampled cases. Clearly, the strongest correlates of the various recommendations and actions of deputy prosecutors are legal characteristics of the offense (type and severity) and the criminal history of the defendant. Although race and other extra-legal factors were often shown in the bivariate analyses to be related to prosecutorial decisions, those associations were usually mediated by legal characteristics meaning that they were accounted for by the race differences in the offense or priors of the defendants that were related to the recommendations. A few exceptions to this pattern, however, should be noted. First, the effect of race, particularly African American, on bail was significant in most analyses. The effect was reduced once we controlled for detention recommendation by the police. While this measure may statistically capture [100] legal factors not identified in standard analyses, the variable may also indicate the operation of discretion at earlier stages in the criminal justice system that unknowingly flow into and affect the operations of the Prosecutor s office. Second, there were significant differences in the amount of confinement recommended for Black offenders and White offenders, and deputy prosecutors were less likely to recommend an alternative sentence conversion for Black offenders. Alternatively, Hispanics were less likely than others to receive community placement. Although there may be important variables omitted from these analyses, the findings are strong compared to those produced in other state-of-the-art studies that use traditional variables in their analyses. 3. The results of Judges sentences are consistent with the recommendations of the Prosecuting Attorney s Office. This is not surprising given that the vast majority of offenders plead guilty after negotiations between deputy prosecuting attorneys and defense counsel, and both deputy prosecutors and judges rely on state sentencing guidelines in their recommendations and orders. The primary finding is that legal variables, particularly seriousness 100 Relevant factors that were not captured in the bail recommendations included: (1) the number of prior failures to appear; (2) outstanding bench warrants; (3) ties to the community; (4) employment; (5) history of substance abuse; and (6) verified address and/or telephone. Id, at 37. Page 18 of 41

of the offense and the criminal history of the offender, are the most important factors associated with sentencing. However, controlling for legal factors, African Americans tend to receive higher sentences than Whites and are less likely to be provided an alternative sentence conversion. R. Crutchfield, J. Weis, T. Engen, and R. Gainey, Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County, at 4-5 (Nov. 1995). Ultimately, the researchers concluded that the few observed disparities did not reflect racially-based decisions by prosecutors. It seems much more likely that the disparities are related 101 to legal, economic, and social factors. The report ends with a recognition that the King County Prosecuting Attorney s staff exhibited a high level of commitment to fairness and justice, and an opinion that the most fruitful direction to pursue in obtaining a more just criminal justice system is to try to confront and modify law, legal practices, and policies that may disadvantage some 102 groups. Kitsap County s 1998 JOTS Study The Kitsap County Prosecutor s Office developed the Juvenile Offender Tracking System (JOTS) to examine whether the decision to prosecute/not prosecute was influenced by race, gender, 103 religion or creed of the suspect (or victim.) The JOTS program was implemented in a total of four counties Kitsap, Benton, Franklin and Yakima. Ninety-five percent of the cases included in JOTS were referred to the prosecutors offices between November 1996 and June 1997. The remaining five percent of the cases were referred before November 1996 but were still being processed in the juvenile system during the implementation of JOTS. 104 Tim Wadsworth and George Bridges examined the JOTS data in 1998 to determine the relationship between the race and ethnicity of the defendant and the likelihood of a case being declined, diverted or charged. After adjusting for the age of the defendant, the type of offense, the number of prior offenses on the defendant s juvenile record, and whether or not the defendant was thought to be a gang member, cases involving minority defendants are 12% more likely to be 105 declined than cases involving white defendants. Among those cases that are not declined, cases 101 Id., at 58. 102 Id. 103 T. Wadsworth and G. Bridges, Racial, Ethnic and Gender Disparity in Prosecutorial Charging Decisions, and Trends in the Duration of Juvenile Offender Proceedings: An Analysis of JOTS Information for Benton, Franklin, Kitsap and Yakima Counties, at vii and 1 (Nov. 1998). 104 Id., at 1-2. 105 Id., at 9 ( Across the entire sample, minority defendants are about 1.12 times as likely (or 12% morelikley) to have their cases declined as white defendants, after adjusting for differences in offense type, criminal histories, and other characteristics of the defendants. When each county was analyzed separately, minorities in Benton County are Page 19 of 41

106 involving white defendants have a higher likelihood of being diverted while cases involving 107 minority defendants have a higher likelihood of having charges filed. Significant correlations between the declination reasons given and the race of the defendant emerge. Prosecutors are more likely to include Insufficient Evidence Connecting Suspect to Crime, Defendant Under 12', Co-Defendant Statement, DeMinimus, and Witness Reliability as factors influencing declination in cases involving minority defndants than in cases involving white 108 defendants. In contrast, Victim Request, Insufficient Evidence, Mutual Combat and No Crime are more likely to be listed as factors for declination in cases involving white defendants than 109 for cases involving minority defendants. Ultimately, the reasons given for declination do not explain the disproportionate likelihood that cases involving minorities will be declined. 110 A limitation of the present study, and the JOTS data, is the incomplete nature of the 111 information on the offense seriousness for those cases in which charges are not filed. This about.85 times as likely (or 15% less likely) as whites to have their cases declined. Similarly, minorities in Franklin County are about.98 times as likely (or 2% less likely) as white defendants to have their cases declined. In contrast, in Kitsap County minority defendants are about 1.19 times as likely (or 19% more likely) as whites to have their cases declined, and in Yakima County, minorities are about 1.38 times as likely (or 38% more likely) as whites to have their cases declined. ). 106 Prosecutors in Washington State do not exercise much discretion over the process of diversion decisions. RCW 13.40.070 specifies which categories of offenses are eligible for diversion, and under what conditions a case must be diverted. 107 T. Wadsworth and G. Bridges, supra note 103, at 13and 15-16(Nov. 1998) ( Across the entire sample, minority defendants are about.85 times as likely (or 15% less likely) to have their cases diverted as white defendants, after adjusting for offense type, length of criminal histories and other characteristics of the defendant. When we analyze each county separately, minority defendants in Benton County are about.81 times as likely (or 19% less likely) as white defendants to have their case diverted. In Franklin County, minority defendants are about.97 times as likely (or 3% less likely) as white defendants to have their case diverted. Cases involving minority defendants in Kitsap County are about.90 times as likely (or 10% less likely) as cases involving white defendants to have their case diverted. Minority defendants in Yakima County are about.85 times as likely (or about 15% less likely) as white defendants to have their cases diverted. ; Across the whole sample, charges are 1.29 times as likely (or 29% more likely) to be filed in cases involving minority defendants than in cases involving white defendants. In Benton County charges are about 1.62 times as likely (or 62% more likely) to be filed in cases involving minority defendants as in cases involving white defendants. In cases involving minority defendants in Franklin County charges are about 1.39 times as likely (or 39% more likely) to be filed as in cases involving white defendants. In Kitsap County, charges are about 1.07 times as likely (or 7% more likely) to be filed in cases involving minority defendants as in cases involving white defendants. In Yakima County, charges in cases involving minority defendants are about 1.22 times as likely (or 22% more likely) to be filed as in cases involving white defendants. ). 108 Id., at 17. 109 Id., at 18. 110 Id., at 19. 111 Id., at 10-11, 15 (Nov. 1998) ( JOTS data only include measures of offense seriousness, or offense classification, for cases in which charges are filed, and do not include information concerning the seriousness or recency of the alleged offender s criminal record ; As in the analysis of diversion, since JOTS does not include information Page 20 of 41

limitation complicates the analyses of those factors affecting race and ethnicity in case disposition. Washington State Minority and Justice Commission s 1999 Study The Washington State Minority and Justice Commission sponsored a 1999 study to examine the case processing and sentencing of felony drug offenders in three counties in Washington State. The study addresses whether, and how, offenders race or ethnicity is related to charging decisions, and how those decisions, as well as offenders race or ethnicity, may affects courts use of sentencing 112 options for drug offenders. King, Pierce and Yakima counties were chosen for this study because, collectively, they sentence roughly have of the felony drug offenders in the state and because those counties sentence nearly three-fourths of the African American and Hispanic drug offenders sentenced in Washington. 113 Two types of data were used to answer the question. First, in-depth interviews were conducted with court officials involved in the case processing of felony drug offenders: judges, prosecutors and public defenders. Second, information from prosecutors case files on characteristics of offenders, their actual offending behavior, and processing decisions from arrest 114 through sentencing was collected. The data from the case files includes information not available in Sentencing Guidelines Commission data, including the quantity of drug and reasons for arrest. 115 Most judges, public defenders, and prosecutors agreed that racial and ethnic groups were not treated differently throughout case processing. In fact, prosecutor rarely knew the race of the 116 defendant when they were making charging decisions or even sentencing recommendations. concerning the classification and seriousness of offenses for cases in which the charges are not filed, we are not able to adjust for these factors in our analysis. ). 112 R. Engen, R. Gainey, and S. Steen, The Impact of Race and Ethnicity on Charging and Sentencing Processes for Drug Offenders in Three Counties of Washington State, at 5 (Dec. 1999). 113 Id., at 19. There are vast differences in the racial/ethnic composition of drug offenders in the three counties. In King County, drug offenders were mostly African American (54%) with about equal proportions of non-hispanic whites (25%) and Hispanics (25%). Most drug offenders in Yakima County are Hispanic (53%) with a sizable proportion white (41%), but very few African Americans (7%). In Pierce County most of the drug offenders are white (70%), but with a sizeable proportion of African American (25%) and a very small proportion Hispanic (5%). Id. At 52-53. 114 Id., at 5-6. 115 Id., at 6. The quantity of drugs did not vary significantly across counties; most arrests were for relatively small amounts. Id., at 53. Buy/bust operations and officer observations were the key forces behind arrests in King County (44% and 24%, respectively), while routine stop and search cases were the most common types of arrests in Yakima (41%) and Pierce counties (40%). 116 Id., at 38. Page 21 of 41

A few individuals thought that social class could impact a case, as the prosecutor is likely to 117 perceive the more well-heeled individual as someone the jury is more likely to believe. One judge expressed concern that the attitude of the defendant can affect the decisions he makes about sentencing, and the suspicion many African-American s display toward the criminal justice system can trigger a desire to protect the community from further malicious acts by this particular 118 defendant. Many individuals perceived citizenship status as an important contributor to ethnic differences in charging and sentencing. The likelihood of deportation will result in fewer guilty pleas, resulting in greater charges and harsher sentences. 119 Judges, public defenders and prosecutors did see differences between white and minority defendants in offending behavior. In terms of drug use, offenders apprehended with methamphetamine and marijuana were typically white, African-Americans were most often 120 apprehended with cocaine (crack), and Hispanics with heroin. In terms of offenses, street level deliveries are generally perceived to be minority offenses, manufacture cases are generally perceived to be white offenses, and possessions are perceived as being committed equally by white and minority offenders. 121 A majority of the judges, public defenders and prosecutors who were interviewed believed that, while race and ethnicity do not matter in case processing stages such as charging and sentencing, they do matter in arrest decisions. Specifically, arrest patterns generally affect racial and ethnic minorities disproportionately harshly due to the differential visibility of offending behavior. 122 A few individuals asserted that differential law enforcement occurs because of racial profiling by police. 123 The quantitative data analysis confirmed the views of the interviewees, finding that the small differences in charging decisions did not consistently advantage or disadvantage any particular group of offenders. In short, the date provided no evidence that race and ethnicity are important factors affecting charging decisions for drug offenders. 124 117 Id., at 43-44. 118 Id., at 44. 119 Id., at 45. 120 Id., at 39. 121 Id., at 39-40. 122 Id., at 40-41. 123 Id., at 42. 124 Id., at 2. Page 22 of 41

Differences in the types and quantities of drugs, and the strategies by which the suspect was 125 arrested, emerged across race/ethnic groups. In light of these differences, Whites were far more likely to be arrested for possession (63%), while African American and Hispanic offenders were 126 more likely to be arrested for delivery type offenses (72% and 58% respectively). At charging, the percentages changed slightly with Whites still most likely to be charged with possession, but with more African American and Hispanic offenders moving into that lesser charge of possession (45% 127 and 53%, respectively. Whites were the most likely to be charged with multiple counts (36%), Hispanics were next most likely (25%), and African Americans were the least likely to be charged with multiple counts (15%). 128 The offense initially charged was often reduced at conviction. Defendants charged initially with drug possession were virtually all convicted of possession (94%). Defendants where were initially charged with delivery were convicted of less serious crimes, either anticipatory delivery or 129 simple possession, in 63% of cases. The small differences that emerge by race/ethnicity in the 130 pattern of reductions are not statistically significant. The strongest predictor of the seriousness of the primary conviction charge appears to be whether the defendants plead guilty or are convicted at trial, with the latter group much more likely to be convicted of the most serious charges. 131 The only statistically significant findings involved the filing of multiple charges and the likelihood of a drug delivery conviction. Whites were both more likely than African Americans or 125 Id., at 54-55 ( Most white offenders were involved with methamphetamine (58%), with a substantial minority involved with cocaine (30%) and marijuana (21%). The vast majority of African-American offenders were involved with cocaine (84%), but there was some heroin involvement (11%). The majority of Hispanics were also involved with cocaine (71%), with a sizable proportion involved with heroin (31%). A majority of all offenders were arrested with small amounts of drugs, with Hispanics being most likely to have medium or large amounts (22% as compared to 15% of whites and 10% of African-Americans). The reasons for arrest also varied significantly across groups. Whites were most likely to have been arrested in routine stops (41%), African Americans in buy-bust operations (38%), and Hispanics in active investigations (28%) or routine stop and searches (26%). These arrest differences largely reflect the differences across counties in minority representation and in the types of arrests that are most common in those counties. ). 126 Id., at 55. 127 Id., at 55. 128 Id., at 55. 129 Id., at 56-57. 130 Id., at 57 ( Among those arrested for delivery offenses (see Table 5), 74% of African American defendants were charged initially with a delivery offense, compared to 82% of White and Hispanic offenders. These small differences by race increase slightly again from the initial charge to the offense of conviction, but remain statistically non-significant. Among those arrested initially for delivery offenses, 47% of White defendants were also convicted of delivery offenses, compared to 29% of African American and 36% of Hispanic defendants. Conversely, White defendants were slightly less likely (18) to be convicted of an anticipatory delivery offense than were African American (37%) or Hispanic defendants (30%). ). 131 Id.. At 63. Page 23 of 41

132 Hispanics, to face multiple charges at the onset and to be convicted of multiple counts. White defendants were significantly more likely than African American and Hispanic defendants to be 133 convicted of drug delivery. No explanation is offered for these differences, but the study authors indicated that they are compelling and may warrant further study. 134 With respect to sentences, it appears on average prosecutors recommend, and judges sentence, African American offenders to longer periods of incarceration than they do whites, but this can be entirely explained by the types of drug offenses that offenders are convicted of, their prior criminal history, and the guidelines recommended by the State of Washington. Once legal factors are controlled, the only extra-legal factors affecting prosecutor s recommended sentence length is 135 whether the case was convicted at trial. There is no significant direct effect of a trial vs. pleading guilty on judges decisions regarding sentence length. 136 Bail and Pre-Trial Detention The Washington State Minority and Justice Commission sponsored a study on the extensiveness and causes of racial and ethnic disparities in the bail and pre-trial release decisions of superior courts in the State of Washington. The researchers, however, limited their analysis to data related to King County felony matters. This limitation was driven by the fact that only King County was the only county that routinely collects and maintains automated information of the subjective assessments and recommendations of pre-trial services officers. 137 The study ultimately reviewed 1,658 cases drawn from the population of all defendants 138 charges with felony offenses in King County between 1994 and 1996. The superior court released 132 Id., at 58 ( Among White defendants initially charged with delivery offenses, prosecutors filed multiple counts in 54% of cases, compared to 20% of similarly situated African American defendants and 36% of Hispanic defendants. Among those charged with delivery, this difference is statistically significant the probability of finding a difference of this magnitude, if none existed in the population from which we drew our sample, is less than 1% (p<.01). By conviction, however, most of these additional counts were either dismissed or removed through an amended information. Ultimately, only 13 defendants were convicted of multiple counts. The difference by race remained, though, and remained statistically significant, with conviction of multiple counts being more common among White defendants (23%), than among African American (2%) or Hispanic defendants (8%). ). 133 Id., at 63. 134 Id.., at 69. 135 Id., at 67. 136 Id., at 66. 137 G. Bridges, A Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention Practices in Washington, at 4-5, 32-38 (Oct. 1997). Report is available at http://www.courts.wa.gov/committee/pdf/1997_researchstudy.pdf (last visited Apri. 4, 2012). 138 Id., at 6, 42-43. Page 24 of 41

approximately 54 percent of the sample defendants pre-trial, typically with some supervision conditions. The court set bail/bond in fifty percent of the sample. Bail/bond amounts ranged from $500 to $1,000,000, with a median of $10,000. Approximately 64 percent of the defendants in the sample were able to meet the conditions of release either by accepting and complying with the provisions of supervision or by paying the specified amount of bail. The remaining 36 percent were not able to meet the court s conditions of release and remained in custody pending disposition of their case. 139 The prosecuting attorney s recommendation and the severity of the offense consistently were associated with the court s pre-trial release and bail decisions. The court typically released defendants in the sample on personal recognizance when the prosecuting attorney favored release 140 and granted bail in amounts quite similar to that recommended by the prosecutor. The courts, moreover, were least likely to release defendants on their own recognizance and very likely to set high amounts of bail if the offense was serious and involved domestic violence. 141 Even after adjusting for differences among defendants in the severity of their crimes, prior criminal records, ties to the community and the prosecuting attorney s recommendation, minority defendants and men were less likely to be released on their own recognizance than other 142 defendants. A detailed comparison of a sub-sample of cases included in the study suggests that some of the racial and ethnic disparities in pre-trial release and bail decisions are caused by significant qualitative differences between the offenses and the personal circumstances of nonwhite or minority defendants and white defendants. To the extent that these types of differences contribute to disparities reported in the analyses, any interpretation of the disparities as solely the result of racial bias in the courts would be erroneous. 143 Sentencing Disparity in sentencing is defined as differing treatment of offenders with the same current offense and criminal history. Since the enactment of the Sentencing Reform Act (SRA), Washington State adopted a system of presumptive sentencing guidelines. Adults who commit criminal offences are subject to standard terms according to a sentencing grid or to a variety of sentencing alternatives. Standard ranges limit but do not eliminate the possibility of disparate treatment. Disparity in sentencing can arise in the placement within the standard ranges, the incarceration decision, and the alternative sentencing rates among different gender and racial/ethnic groups. 139 Id., at 6, 47-48. 140 Id., at 59-64. 141 Id., at 7, 59-64. 142 Id., at 7, 62. 143 Id., at 8, 66-73. Page 25 of 41

The Sentencing Guidelines Commission ( SGC ) has produced a number of reports related 144 to adult disparity and disproportionality and juvenile disparity and disproportionality. These reports summarize sentencing data. Some limitations of the data used include lack of information 145 covering all eligibility criteria for alternatives, missing race and ethnicity on significant portion 146 of the judgement and sentences, and the absence of detailed offense information that could review the existence of legally relevant factors that could cause a judge to apply a longer term or to reject a sentencing alternative. 147 Adult The data from the available Disproportionality and Disparity in Adult Felony Sentencing Reports reveal the following: Terms of Confinement People of color receive longer sentences than Caucasians and males longer sentences than females. Overall, African Americans and Asian/Pacific Islanders receive confinement terms approximately six months longer than Caucasians. Some of the 148 disparity arises from differing rates in the use of weapons, differing seriousness 149 150 levels of the crime of conviction, and differing offender scores. 144 The reports are available at the Washington State Caseload Forecast Council s website, http://www.cfc.wa.gov/sentencingpublication.htm (Last visited Feb. 29, 2012). 145 See, e.g., Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 2 n. 4 (December 2005). 146 See Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 1 (April 2008) (2,098 sentences were excluded because gender, race, and/or ethnicity were not provided; figures based upon the 27,097 sentences that provided this information). 147 See Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 18 (Dec. 2003). 148 See, e.g., Sentencing Guidelines Commission, Disproportionality and Disparity in Adult Felony Sentencing (2003), at 11 (December 2003) (The longer terms for Asians and Pacific Islanders for murder and manslaughter result from weapon enhancements and a mix of offenses ranked slightly higher on the sentencing grid. Over half of murder/manslaughter sentences for Asian/Pacific Islanders include a weapon enhancement, compared to just 18% for Caucasians). Id., at 15 ( On average, Native Americans receive the longest property sentences, due to a slightly higher seriousness level ). 149 See, e.g., Sentencing Guidelines Commission, Disproportionality and Disparity in Adult Felony Sentencing (2003), at 15 (December 2003) ( On average, Native Americans receive the longest property sentences, due to a slightly higher seriousness level ). 150 See, e.g., Sentencing Guidelines Commission, Disproportionality and Disparity in Adult Felony Sentencing (2003), at 16 (December 2003) ( On average, African Americans receive drug sentences that are 7½ months longer than Caucasians, however they were sentenced relatively low in the range (27.9%), compared to Caucasians (34.9%) and Hispanics (34%). The longer sentences result from offenses with higher seriousness levels and offender scores. ). Page 26 of 41

All racial and ethnic groups receive sentences, on average, within the lower half of the range specified by the sentencing grid. Sentences for all groups are at or near 151 35% of the range. When sufficient sample sizes exist to compare Caucasians to one or more other race/ethnicities, Caucasians have the highest placement in at least 152 half of the groups. Approximately eight to ten percent of offenders whose sentences fell within low ranges of the grid of 1 month or less received non-confinement sentences. 153 Asian/Pacific Islanders consistently received non-confinement sentences at the 154 highest rate among racial/ethnic groups, while Native Americans and Hispanics consistently received the lowest rates of non-confinement sentences. 155 151 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 9 (Dec. 2003); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 3 (December 2005); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008). 152 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 3 (December 2005) ( There were sufficient sample sizes in 23 cells to compare Caucasians to one or more other race/ethnicities. Caucasians had the highest placement in 14 of the 23 cells compared.... African Americans had the highest placement in 6 of 23 grid cells compared and placement differed by as much as 4% higher. In standard ranges than Caucasians. Hispanics had the highest placement in 3 of the 6 grid cells where a comparison was possible. Placement differed by as much as 6% higher. Native Americans received the second highest placement in 2 of the 4 possible cell comparisons. Asian/Pacific Islanders had the lowest placement in the 1 grid cell whereh comparison was possible. Placement was 6% lower than other groups within the range. ); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008) ( There were sufficient sample sizes in 28 cells to compare Caucasians to one or more other race/ethnicities. Caucasians had the highest placement in 14 of the 28 cells compared. African Americans had the highest placement in 11 of 28 grid cells compared and placement differec by as much as 0.3% lower in standard ranges than Caucasians. Hispanics had the highest placement in 1 of the 4 grid cells where a comparison was possible. Placement differed by as much as 3.4% higher. Native Americans received the highest placement in 1 of the 4 possible cell comparisons. Asian/Pacific Islanders had the highest placement in the 1 of the 3 grid cells where comparison was possible. Placement was 2.9% higher in standard ranges than Caucasians. ). 153 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 19 (Dec. 2003); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 3 (December 2005); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008). 154 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 19 (Dec. 2003) (19.3% of eligible Asians received non-incarceration sentences); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 3 (December 2005) (19.1% of eligible Asians received non-incarceration sentences); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008) (16% of eligible Asians received non-incarceration sentences). 155 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 19 (Dec. 2003) (3.62% of eligible Hispanic offenders and 6.59% of eligible Native American offenders received non-incarceration sentences); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 3 (December 2005) (5.2% of eligible Hispanic offenders and 7.5% of eligible Native American offenders received non-incarceration sentences); Disproportionality and Disparity Page 27 of 41

An exceptional sentence outside the standard range is allowed if the court finds substantial and compelling reasons. The facts supporting an exceptional sentence 156 above the standard range must, since 2004, be found by a jury. Caucasians received aggravated sentences at the highest rate in one study, Hispanics received aggravated sentences at the highest rate in a second study, and Native Americans 157 received aggravated sentences at the highest rate in a third study. Hispanics received the highest rate of mitigated sentences in two studies, while African Americans received the highest rate of mitigated sentences in a third study. 158 Sentencing Alternatives The Sentencing Reform Act contains a number of alternatives for sentencing outside the grid. Judicial discretion in applying these alternatives are limited by eligibility criteria set by statute. 159 These criteria have not remained static, but have undergone a number of changes. The reports prepared by the SGC determine eligibility for an alternative sentence based solely on the components of the sentence itself. The SGC does not take into account any issues that may 160 make an offender ineligible for the alternative outside of the sentence components. The reports in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008) (3.4% of eligible Hispanic offenders and 5.0% of eligible Native American offenders received non-incarceration sentences). 156 See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). 157 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 24 (Dec. 2003) (aggravated sentences were received by 3.41% of Hispanics, 2.50% of African Americans, 2.48% of Caucasians, 1.67% of Asians, and 1.66% of Native Americans); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 4 (December 2005) (aggravated sentences were received by 1.45% of Caucasians, 1.19% of African Americans,.91% of Asians,.90% of Hispanics, and.70% of Native Americans); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 4 (April 2008) (aggravated sentences were received by 1.50% of Native Americans, 1.27% of Hispanics, 1.21% of African Americans, 1.19% of Caucasians, and.70% of Asians). 158 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 24 (Dec. 2003) (mitigated sentences were received by 3.70% of African Americans; 2.82% of Hispanics, 1.83% of Asians, 1.81% of Native Americans, and 1.42% of Caucasians); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 4 (December 2005) (mitigated sentences were received by 3.24% of Hispanics, 1.96% of Native Americans, 1.78% of African Americans, 1.64% of Caucasians, and 1.21% of Asians); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 4 (April 2008) (mitigated sentences were received by 4.92% of Hispanics, 3.13% of Native Americans, 1.77% of Caucasians, 1.60% of African Americans, and 1.04% of Asians). 159 See, e.g., L. Berliner, Washington State Institute for Public Policy, Sex Offender Sentencing Options: Views of Child Victims and Their Parents, at 2-5 and 25-26 (August 2007) (detailing the evolution in the law regarding SSOSA); Washington State Institute for Public Policy, Washington s Drug Offender Sentencing Alternative: An Update on Recidivism Findings at 2 (December 2006) (comparing the 1995, 1999, and 2005 DOSA Legislation). 160 Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 47 (Dec. 2010). Page 28 of 41

prepared by the SGC only discuss three of the alternatives: (1) First Time Offender Waiver; (2) Drug Offender Sentencing Alternative (DOSA); and (3) Special Sex Offender Sentencing Alternative (SSOSA). An offender may choose not to seek out a sentence alternative because of the associated community custody. An offender may not be able to pay for the treatment required by an 161 alternative. An offender may have been held in confinement prior to sentencing for a length of 162 time that exceeds the confinement that would be imposed under the alternative. A non-citizen 163 offender may reject a sentencing alternative in favor of early deportation. One study noted that more than one-half of eligible offenders did not seek a SSOSA. 164 A judge may deny a sentencing alternative to a non-citizen offender of any racial group if the 165 offender's possible deportation could render the sentencing alternative unworkable. A judge may 166 deny a SSOSA to an offender if the victim objects if the offender did not have a pre-existing 167 168 relationship with the offender, or if the offense resulted in substantial bodily harm to the victim. 161 Id. 162 Since 2000, non-violent prison sentences received an average of almost four months of credit, and non-violent jail sentences average slightly more than 30 days. Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 47-48 (Dec. 2010). 163 RCW 9.94A.685 allows an alien offender to be released for deportation at any time prior to the expiration of the offender s term of confinement. This early release option is available to any offender who is not serving a sentence for a violent offense or a sex offense. 164 Lucy Berliner, supra note 159, at 10. 165 See State v. Osman, 157 Wn.2d 474, 139 P.3d 334 (2006). By statute, an offender who is subject to a deportation order is ineligible for a DOSA sentence. See RCW 9.94A.660(1)(e). 166 RCW 9.94A.670(4) provides that The court shall give great weight to the victim's opinion whether the offender should receive a treatment disposition under this section. If the sentence imposed is contrary to the victim's opinion, the court shall enter written findings stating its reasons for imposing the treatment disposition. 167 RCW 9.94A.670(2)(e) ( An offender is eligible for the special sex offender sentencing alternative if:... The offender had an established relationship with, or connection to, the victim such that the sole connection with the victim was not the commission of the crime; ). 168 RCW 9.94A.670(2)(d) ( An offender is eligible for the special sex offender sentencing alternative if:... (d) The offense did not result in substantial bodily harm to the victim;). Page 29 of 41

169 Use of the First Time Waiver Option has decreased over time. The rate at which waivers are granted to people of color has historically been lower than for Caucasians. Hispanic offenders historically receive the waiver at the lowest rate. 170 171 The number of DOSA sentences have also decreased over time. The SGC historically determined eligibility for this sentencing alternative solely based upon criminal history, crime of conviction, and standard range. Statutory eligibility factors such as amount of drug, immigration status, and chemical dependency screening are 172 not included in the data that SGC receives from sentencing courts. Although the 173 SGC produced reports in 2003, 2005, and 2008 that purportedly indicated the number of eligible DOSA offenders, the SGC acknowledged in 2010 that it is 169 In 1989, over one-third of offenders who were eligible First Time Waiver offenders received a First Time Waiver sentence. By 2008, only 16 percent of eligible offenders received a First Time Waiver. Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 47 (Dec. 2010). 170 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 20 (Dec. 2003) (First Time Offender Waivers were granted to 21.24% of eligible Caucasians, 19.89% of eligible Native Americans, 13.4% of eligible Asians, to 12.75% of eligible African Americans, and to 10.92 % of eligible Hispanics); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 3 (December 2005) (First Time Offender Waivers were granted to 16.4% of eligible Caucasians, 13.4% of eligible Asians, 12.7% of eligible African Americans, 9.7% of eligible Native Americans, and to 8.6% of eligible Hispanics); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008) (First Time Offender Waivers were granted to 17.2% of eligible Native Americans, 16.2% of eligible Caucasians, 14.1% of eligible African Americans, 13.5% of eligible Hispanics, and 12.1% of eligible Asians). 171 In 2002, DOSA sentences were granted to 36% of eligible offenders. Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 21-22 (Dec. 2003). In later years, DOSA sentences were imposed in approximately a fifth of eligible cases. Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 4 (December 2005) (approximately 22% of offenders eligible for a DOSA sentence received one); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 3 (April 2008) ( approximately 17.6% of offenders eligible for a DOSA sentence received one). 172 Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 47 (Dec. 2010); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 2 n. 4 (December 2005); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 2 n.4 (April 2008). 173 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 22 (Dec. 2003) (DOSA sentences were granted to 51.8% of eligible African Americans, 36.94% of eligible Native Americans, 33.57% of eligible Caucasians, 30.21 % of eligible Asians, and 21.27% of eligible Hispanics); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 4 (December 2005) (DOSA sentences were granted to 23.7% of eligible Caucasians, 22.1% of eligible African Americans, 14.7% of eligible Asians, 14.5% of eligible Native Americans, and 5.3% of eligible Hispanics); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 4 (April 2008) (DOSA sentences were granted to25.9% of eligible Native Americans, 19.7% of eligible African Americans, 17.97% of eligible Caucasians, 17.7 % of eligible Asians, and 5.0% of eligible Hispanics). Page 30 of 41

174 unable to provide reliable eligibility estimates for DOSA sentences. Although the number of individuals who might be eligible for SSOSA sentences has remained fairly constant over time, the percentage of offenders actually receiving a 175 SSOSA has declined. Caucasians receive SSOSA sentences at one of the highest 176 rates, while Hispanics were sentenced under SSOSA at the lowest rates. These results must, however, be viewed with caution as the SGC s eligibility calculation does not take into account the victim s position on SSOSA, the offender s amenability to treatment, or the offender s immigration status. 177 Legal Financial Obligations Legal financial obligations (LFOs) include fees, fines and restitution orders assessed by judges at the time of criminal conviction. The imposition of some LFOs are discretionary, while 178 others are mandatory. All felony offenses include a mandatory crime victim assessment. The Legislature has also mandated certain crime-related assessments, many of which are associated with 179 drug offenses. A sentencing court may require an offender to repay the cost of an appointed attorney, medical expenses, witness fees, and other expenses specially incurred by the state in 180 prosecuting the defendant. 174 Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 47 (Dec. 2010). 175 Id., at 47 (Dec. 2010) (over half of SSOSA eligible offenders received SSOSA sentences in 1989, but only 17 % in 2008). 176 Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing 2003, at 22 (Dec. 2003) (SSOSA sentences were granted to 29.07% of eligible Caucasians, 25% of eligible Asians, 21.7% of eligible Native Americans, 11.8 % of eligible Hispanics, and 4.62A% of eligible African Americans); Sentencing Guidelines Commission of Washington, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005, at 4 (December 2005) (SSOSA sentences were granted to 25% of eligible Native Americans, 22.3% of eligible Caucasians, 16.7% of eligible Asians, 11.8% of eligible African Americans, and 5.4% of eligible Hispanics); Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007, at 4 (April 2008) (SSOSA sentences were granted to 21.4% of eligible Asians, 19.4% of eligible Caucasians, 12.2% of eligible African Americans, 6.6 % of eligible Hispanic, and none of the 11 eligible Native Americans); Washington State Institute for Public Policy, Sex Offender Sentencing in Washington State: Initial Sentencing Decision, at 5-6 (Sept. 16, 2005) (There is a statistically significant relationship between race or ethnicity and SSOSA sentences versus a prison sentence. The relationship favors SSOSA for European Americans and favors the imposition of a prison sentence for African Americans and Hispanics.) 177 See note 35 supra. 178 See RCW 7.68.035. 179 See, e.g., RCW 43.43.690 (crime laboratory analysis fee); RCW 46.61.5054 (state toxicologist fee); RCW 43.43.7541 (DNA collection fee); RCW 69.50.401(2)(b) (methamphetamine clean-up fee). 180 RCW 10.01.160. Page 31 of 41

Drug cases are assessed significantly higher fees and fines than violent crimes. Cases sentenced in counties with smaller populations are assessed significantly higher fees and fines. Cases sentenced in counties with higher violent crime rates and higher drug arrest rates are also assessed significantly higher fees and fines. Finally, cases sentenced in counties that spend smaller fractions of their budget on law and justice are assessed significantly higher legal fees and fines. 181 [R]egression analysis shows that ethnicity, and specifically, Hispanicity, influences the 182 assessment of LFOs. Precisely why Hispanics were assessed significantly higher fees and fines than white defendants, is not known. There is no evidence, however, that the documented variation in the assessment of LFOs is the result of legally impermissible discretion. 183 Offender Programs and Treatment The Department of Corrections (DOC) offer a wide variety of offender programs and services in its facilities. Data suggests that there are some racial disproportionality in most offender programs and services. The disparities may have explanations besides simple ethnic breakdown, but periodic review of policy and practices to ensure fairness and proportionality in how DOC treats offenders is planned. 184 All of the ethnic groups were more likely to participate in the Adult Basic Education 185 program, which consists of basic reading, writing and mathematics, than were Caucasians. African American offenders were 88% more likely; Hispanic offenders were 87% more likely, and Other offenders were 38% more likely than Caucasian 186 187 offenders. The numbers may reflect differing rates of need for this training. 181 Washington State Minority and Justice Commission, The Assessment and Consequences of Legal Financial Obligations in Washington State, at 29-30 (August 2008). 182 Id., at 31. 183 Id., at 33. 184 Department of Corrections, Policy Review: Racial Disparity, at 1-2 (Sept. 28, 2010), http://www.doc.wa.gov/aboutdoc/measuresstatistics/docs/racialdisparityexecutivesummary.pdf (last visited Mar. 23, 2012). 185 State of Washington Department of Corrections, Correctional Education: Providing Basic Education to Offenders (Nov. 2008), http://www.doc.wa.gov/aboutdoc/docs/p351ecorreducationsinglesheet.pdf. 186 Department of Corrections, Policy Review: Racial Disparity, at 1 (Sept. 28, 2010), http://www.doc.wa.gov/aboutdoc/measuresstatistics/docs/racialdisparityexecutivesummary.pdf (last visited Mar. 23, 2012). 187 Annual drop out rates are, regrettably, substantially higher for African Americans, Hispanics, and certain other minorities. See, e.g., Superintendent of Public Instruction, Graduation and Dropout Statistics for Washington in 2009-10, at 13-16 (2011), http://www.k12.wa.us/dataadmin/pubdocs/graddropout/09-10/graduationdropout Washington2009-10.pdf (last visited Mar. 23, 2012). Page 32 of 41

The opportunity for African American offenders to participate in Vocational Programs was not significantly different from Caucasian offenders. Hispanic offenders, however, were 60% less likely to participate than Caucasian offenders. Other offenders were 26% less likely to participate than Caucasian offenders. 188 The Offender Change Programs, which include Moral Recognition Therapy, Relapse Education Program, Stress and Anger Management, Job Hunter, Partners In Parenting, Long Distance Dads, Nurturing Fathers, and Getting It Right, have basically equivalent participation rates for Caucasian and African American offenders. There are significant differences for Hispanic and Other offenders, with Hispanic offenders being 63% less likely and Other offenders 39% less likely to participate in Offender Change Programs than Caucasians. Language barriers may inhibit Hispanics or other groups from participating in these programs. 189 Hispanics were 64% less likely and other Offenders were 41% less likely than Caucasian offenders to receive Chemical Dependency Treatment. Black offenders also had a 31% less of a chance than Caucasians offenders at participating in Chemical Dependency Treatment. The statistics do not take into account which treatment was court ordered or agency sanctioned. There is, however, no evidence of racial disparities between offenders who participated in residential dependency 190 treatment in the community during fiscal year 2008. There are some racial disparities in some offender work programs. The disproportionality is smaller between Caucasian and African American offenders. Language and education may present barriers to jobs or vocational programs for some groups. 191 There is no evidence of significant racial disparities among offenders who committed violent infractions during FY08. Hispanic offenders, however, commit violent infractions at twice their population. Security Threat Group affiliation and related 188 Department of Corrections, Policy Review: Racial Disparity, at 1 (Sept. 28, 2010), http://www.doc.wa.gov/aboutdoc/measuresstatistics/docs/racialdisparityexecutivesummary.pdf (last visited Mar. 23, 2012). 189 Department of Corrections, Policy Review: Racial Disparity, at 1 (Sept. 28, 2010), http://www.doc.wa.gov/aboutdoc/measuresstatistics/docs/racialdisparityexecutivesummary.pdf (last visited Mar. 23, 2012); Department of Corrections, Offender Life - Offender Change Programs, http://www.doc.wa.gov/family/offenderlife/programs.asp (last visited Mar. 23, 2012). 190 Department of Corrections, Policy Review: Racial Disparity, at 1-2 (Sept. 28, 2010), http://www.doc.wa.gov/aboutdoc/measuresstatistics/docs/racialdisparityexecutivesummary.pdf (last visited Mar. 23, 2012). 191 Id., at 2. Page 33 of 41

behavior may be a factor in this higher rate. 192 African American offenders received a disproportionate number of detainer and warrant hearings than other groups. They were also significantly more likely to be released past their earned early release date than were offenders of other ethnic or racial groups. 193 Juveniles The data from the available disproportionality and disparity in juvenile system reports reveal the following: African Americans are the most overrepresented racial group in the juvenile offender 194 population. 195 Asian/Pacific Islanders are the most underrepresented racial group. There has been a gradual increase in over-representation in juvenile sentencing for Hispanic, African and Native American youth. 196 The date relied upon by the SGC in the reports describing the rate with which eligible offenders received standard range dispositions or alternative sentences is limited to current offense, 192 Id. 193 Id. 194 Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2005, at 1 (December 2005) ( African Americans comprise 3.89% of the juvenile population in Washington but received 13.14% of all juvenile dispositions, and where the most over-represented racial groups with a 3.38 ratio. ); Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 1-2 (May 2008) ( African Americans comprise 4.34% of the juvenile population in Washington but received 15.65% of all juvenile dispositions, and were the most over-represented racial group with a 3.64 ratio. ); N. Lee, Sentencing Guidelines Commission, Juvenile Offenders: A Study of Disproportionality and Recidivism, at 5 (2001) ( African American males disposition ratio was 3.1 times greater than Caucasian males.... African American females disposition ratio was 4 times greater than Caucasian females.). 195 Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2005, at 1-2 (December 2005) ( Asian/Pacific Islanders account for over 6% of the juvenile population but had the lowest ratio, 0.48. ); Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 2 (May 2008) ( Asian/Pacific Islanders account for over 7% of the juvenile population but had the lowest ratio, 0.41. ); N. Lee, supra note 19, at 5 ( Statewide, Asian/Pacific Islanders, male and female, were under-represented in dispositions. ). 196 Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 2 (May 2008). Page 34 of 41

197 offense history, and offender score. The SGC database does not contain information cover other 198 199 statutory eligibility factors or details about the facts of the offenses. Information on the offenders parent s marital status, current living arrangements, parent s employment, number of siblings and educational status was not available to the researchers. Because of these limitations, the reports can establish that disproportionality exist, but not why. 200 The SGC reports identify disproportionality between races and ethnic groups, but generally do not provide any basis for determining whether the disproportionality is based upon appropriate factors such as the crime of conviction. While African American youth received 25.5% of all 201 remands to JRA in fiscal year 2007, such a disposition may be objectively appropriate depending upon the offense category and/or the youth s history of prior adjudications. The one exception appears in the 2001 report prepared by Dr. Nella Lee. In this report, an 202 analysis was performed of Theft 3 disposition lengths in 38 of the 39 counties. Theft in the third degree is a level D offense that requires a local sanction disposition ranging from 0 to 30 days of confinement and/or 0-12 months of community supervision and/or 0-150 hours of community service and/or $0-$500 fine. Judicial discretion is permitted within these ranges. Even controlling for the offender score, it appears that extra-legal factors such as race, gender and county/region 203 197 Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2005, at 2 n. 5 and 4 (December 2005); Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 2 n.5 and 4 (May 2008). 198 The Special Sex Offender Disposition Alternative, RCW 13.40.162, requires that the offender be amenable to treatment and requires the court to consider the victim s position regarding this sentencing alternative. The Chemical Dependency Disposition Alternative, RCW13.40.165, requires that the offender be chemically dependent or substance abusing, and be amenable to treatment. 199 The facts of the offense are relevant to a court s decision to impose a mitigated or aggravated disposition. See, e.g., State v. N.B., 127 Wn. App. 776, 112 P.3d 579 (2005). The facts of the offense are also relevant to a court s discretionary decision to decline juvenile jurisdiction. See, e.g., State v. Holland, 98 Wn.2d 507, 515-16, 656 P.2d 1056 (1983). The need for rehabilitation may also impact a court s disposition. See, e.g., State v. J.V., 132 Wn. App. 533, 132 P.3d 1116 (2006). 200 N. Lee, supra note 19, at 4. 201 Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 3(May 2008). and 4. 202 Data from the King County Superior Court s Juvenile Department are omitted. N. Lee, supra note 19, at 1 203 The United States Supreme Court has rejected any constitutional "geographic uniformity" requirement. See generally Salsburg v. Maryland, 346 U.S. 545 (1954) ("We find little substance to appellant's claim that distinctions based on county areas are necessarily so unreasonable as to deprive him of the equal protection of the laws guaranteed by the Federal Constitution."). See also McGowan v. Maryland, 366 U.S. 420 (1961). The Washington Court of Appeals did the same with respect to habitual criminal proceedings. See State v. Ragan, 22 Wn. App. 591, 593 P.2d 815 (1979). Page 35 of 41

204 may influence the length of confinement. Death Penalty One way to avoid all sentencing disparities in capital cases, at least in theory, is to eliminate sentencing discretion and have mandatory sentencing. After the Supreme Court s 1972 Furman decision, many states, including Washington, understood that mandatory sentencing was required 205 and proceeded to enact such laws. Four years later, the Supreme Court struck these laws down as well, holding that individualized, discretionary sentencing is not only permitted in capital cases, it is required. See Woodson v. North Carolina, 428 U. S. 280 (1976). The Supreme Court s requirement of individualized sentencing is a requirement that sentencers discriminate on the basis of legitimate factors that distinguish the more culpable murderers from those that are less so. When the legitimate factors happen to correlate with illegitimate factors, the raw data on demographics tell us nothing. Studies in this area attempt to cope with this problem by examining case files for the legitimate factors and developing mathematical models to adjust for them. The problem is that the legitimate factors cannot be fully known from the case files, and the studies never include all the legitimate factors even when they are discernable. For example, the model from the Baldus Georgia study primarily used by the petitioner in the McCleskey case was held to be invalid by the Federal District Court because (among other deficiencies) it failed to account for the strength of the 206 prosecution s case for guilt. Prosecutors certainly should be more reluctant to seek the death penalty when the case for guilt is less than airtight, and juries certainly should be more reluctant to impose it when they have lingering doubt. By far, the type of potential discrimination of greatest concern is discrimination against racial minority defendants on the basis of their race. This form alone, of all the disparities commonly discussed, would, if true, mean that people are on death row who do not deserve to be there. Discrimination against black defendants was the great concern looming in the background when the Supreme Court threw out the then-existing death penalty laws in 1972. 207 204 N. Lee, supra note 19, at 10-14 and 75-82. 205 In Washington, Initiative Measure No. 316, imposed a mandatory death penalty for Aggravated Murder in the First Degree, that is, first degree murder in the presence of statutorily defined aggravating circumstances. See 1975-76 Wash. Laws 2d Ex. Sess. 17. 206 See McCleskey v. Kemp, 580 F. Supp. 338, 367-368 (ND Ga. 1984). 207 See Graham v. Collins, 506 U. S. 461, 479, 484 (1992) (Thomas, J., concurring). Page 36 of 41

Fortunately, nearly all the studies of post-1972 capital sentencing show no evidence of 208 race-of-defendant bias. This result is particularly striking given that many of the studies are conducted or sponsored by opponents of capital punishment for the specific purpose of attacking it. While a study result that supports a sponsor s argument should be regarded with suspicion, a result that contradicts the sponsor s argument conversely warrants special confidence. The authors of the best known of these studies, the Baldus study in Georgia, noted, What is most striking about these 209 results is the total absence of any race-of-defendant effect. This result has been repeated many times in many jurisdictions, including Connecticut, 210 211 212 213 214 New Jersey, Maryland, Nebraska, Virginia, and the federal system. Overall, though, this result is sufficiently consistent that even a prominent death penalty opponent concedes, It s not the race of the defendant that is the major factor, and I don t think there are many studies that claim 215 that. The Washington Supreme Court has twice considered whether the death penalty is imposed in Washington in a racially discriminatory manner. In State v. Gentry, 125 Wn.2d 570, 655 (1995), the Court stated that a review of the first degree aggravated murder cases in Washington does not reveal a pattern of imposition of the death penalty based upon the race of the defendant or the 216 victim. Six years later, the Court reaffirmed again found that there is insufficient data to support 208 As in any field of study, there are some outliers. The Baldus study in Philadelphia is an outlier, finding a race-of-defendant effect. See Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998). 209 D. Baldus, G. Woodworth, & C. Pulaski, Equal Justice and the Death Penalty 44 (1990). 210 N. Weiner, P. Allison, & G. Livingston, The Connecticut Study of Capital Case Charging, Executive Summary (2003). (2001). 211 D. Baime, Report to the Supreme Court Systemic Proportionality Review Project, 2000-2001 Term, p. 61 212 R. Paternoster et al., An Empirical Analysis of Maryland Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction 26 (2003). 213 Baldus, Woodworth, Grosso, & Christ, Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999), 81 Neb. L. Rev. 486, 661 (2002). 214 Klein, Berk, & Hickman, Race and the Decision to Seek the Death Penalty in Federal Cases 125-126 (2006), http://www.ncjrs.gov/pdffiles1/nij/grants/214730.pdf. 215 Virginia Sloan, President of the Constitution Project, on PBS Newshour, Supreme Court Renews Death Penalty Debate (Nov. 7, 2007), http://www.pbs.org/newshour/insider/social_issues/july-dec07/deathpenalty_1107.html. 216 Ever since the Baldus study in Georgia in the 1980s, the primary discrimination claim has been that the death penalty is imposed less often when the victim is black. Even if that were true, it would not mean that a single person is on death row who does not deserve to be there. The claim is not valid, though. Time after time, when the data are properly analyzed and confounding factors properly controlled, the claimed race-of-victim bias has vanished into the statistical grass. See generally McCleskey v. Zant, 580 F. Supp. 338, 367-368 (ND Ga. 1984) (original Baldus study did Page 37 of 41

a conclusion that race played a part in the defendant s death sentence. See State v. Woods, 143 Wn.2d 561, 620-21 (2001). Sentencing Reform Act RESPONSES TO RACIAL DISPROPORTIONALITY In 1984, Washington State implemented its Sentencing Reform Act (SRA), which established 217 specific rules for the sentencing of persons convicted of felony crimes in Washington State. The SRA provides a determinate sentencing model, with presumptive ranges determined by the Offense Seriousness Level and the Offender Score, which represents both prior and concurrent convictions. The Legislature gave high priority to the equal application of the sentencing guidelines. It provided that [t]he sentencing guidelines and the prosecuting standards apply equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant. RCW 9.94A.340. Studies in 1987, 1997, 1999, and 2000 have consistently found that there were no significant differences in sentences imposed within the guidelines for those convicted of the same crime with the same offender score. Fallen, Statistical Summary, Washington Sentencing Guidelines Commission (1987); Statistical Summary of Adult Felony Sentencing, Washington Sentencing Guidelines Commission (1997); Engen, Gainey & Steen, Racial and Ethnic Disparities in Sentencing Outcomes for Drug Offenders in Washington State (1999); The Sentencing Reform Act at Century s End, Washington Sentencing Guidelines Commission (2000). Restructured Drug Sentences In 2002, the Legislature dramatically restructured drug sentences. The elimination of triple scoring provisions for most drug offenders and the reduction of seriousness level for the Manufacture, Deliver, possession with Intent to Deliver Heroin or Cocaine was expected to decrease the average sentence for drug offenders overall, but particularly for African Americans and Hispanics. 218 not establish that the race of the defendant or the race of the victim has any statistically significant effect on the jury s decision to impose the death penalty or on the prosecutor s decision to seek a death sentence); Klein & Rolph, Relationship of Offender and Victim Race to Death Penalty Sentences in California, 32 Jurimetrics J. 33, 44 (1991); Klein, Berk, & Hickman, Race and the Decision to Seek the Death Penalty in Federal Cases 125 (2006), http://www.ncjrs.gov/pdffiles1/nij/grants/214730.pdf.; R. Paternoster et al., An Empirical Analysis of Maryland Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction 34-35 (2003); Baldus, Woodworth, Grosso, & Christ, Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999), 81 Neb. L. Rev. 486, 661 (2002). 217 See generally Chapter 9.94A RCW. 218 Sentencing Guideline Commission, Disproportionality and Disparity in Adult Felony Sentencing (2003), at 16 (Dec. 2003). Page 38 of 41

Juvenile Detention Alternatives Initiative Washington State established formal partnerships with Annie E. Casey Foundation in 2003 to launch five Juvenile Detention Alternatives Initiative (JDAI) sites. The first sites were initially plaed in Pierce County Juvenile Court, King County Juvenile Court, Yakima County Juvenile Court, Spokane County Juvenile Court, and Whatcom County Juvenile Court. Two new courts, Skagit 219 County and Mason County Juvenile Courts, were subsequently added. Each county participating in JDAI utilizes a three-tiered model for reducing disproportionate minority confinement and detention overcrowding: 1. Utilization of a risked-based detention screening tool to ensure only youth who meet certain criteria are admitted to detention; 2. Youth who qualify for detention alternative programs continue to participate in evidence based programs funded through JRA, such as Aggression Replacement Training (ART), Functional Family Therapy (FFT), Multisystemic Therapy (MST), Consolidated Juvenile Services (CJS) At-Risk interventions for youth with minimal criminal history, and recent training on Dialectical Behavioral Treatment (DBT). 3. Expansion of the warrant reduction program to include at specific sites, reminder phone calls, mail reminders, eligible youth with warrants having their hearing rescheduled instead of being detained. 220 JDAI has reduced the detention population in the participating counties by 39.1%. A corresponding decrease in minority youth confinement has also occurred. 221 Models for Change Grant In September of 2008, the Juvenile Rehabilitation Administration (JRA) received a one-year planning grant from the MacArthur Foundation s Models of Change (MfC) Initiative to develop a two-year work plan for implementing strategies addressing Disproportional Minority Contact in JRA. The work performed under that grant identified strategies for addressing six goals: (1) public awareness of Disproportional Minority Contact; (2) policies, procedures and treatment model that 219 Juvenile Rehabilitation Administration, Division of Treatment and Intergovernmental Programs, Report to the Legislature: Racial Disproportionality in the Juvenile Justice System, at 5 and 6 (Dec. 2009). 220 Beverly G. Grant, Pierce County Superior Court Judge, Pierce County Is on the Move Towards Taking on the Challenge of Face, Disproportionality & Disparity (2001), http://www.co.pierce.wa.us/xml/abtus/ourorg/supct/disproportionality%20by%20judge%20grant.pdf (last visited Mar. 23, 2012) (FTA admissions were reduced for African American males from 130 in 2007 to 74 in 2009 by sending text reminders of court hearings to youth). 221 Juvenile Rehabilitation Administration, Division of Treatment and Intergovernmental Programs, Report to the Legislature: Racial Disproportionality in the Juvenile Justice System, at 7 (Dec. 2009). Page 39 of 41

will not exacerbate Disproportional Minority Contact; (3) establish baseline data; (4) engage JRA youth, families, and community stakeholders in the care and rehabilitation of JRA youth; (5) incorporate culturally responsive practices into treatment protocol and interactions with JRA youth and families; and (6) increased use of disposition alternatives for youth of color. 222 Curtailed Felon Disenfranchisement Law Washington's constitution denies the right to vote to "[a]ll persons convicted of infamous crime unless restored to their civil rights." Wash. Const. art. VI, 3. An "infamous crime" is one that's "punishable by death... or imprisonment in a state correctional facility." RCW 29A.04.079. Washington has disenfranchised felons since 1866, four years before the Fifteenth Amendment was ratified. Territorial Law of 1866, Rem. & Bal. Code 4755. A number of convicted felons challenged Washington s felon disenfranchisement law, claiming that it violated section 2 of the Voting Rights Act ("VRA") because the law "results in a denial or abridgement of the right... to vote on account of race." 42 U.S.C. 1973(a). The felons lost their action in the federal courts because their claim was predicated solely upon statistical evidence that there are racial disparities in Washington's criminal justice system rather than evidence that Washington s criminal justice system is infected by intentional discrimination. 223 While the action was pending in the federal courts, the Washington Legislature amended the felon disenfranchisement laws to restore the vote to felons at such time as those convicted under Washington state law are no longer under the authority of the Washington Department of 224 Corrections. The ability to serve on a jury accompanies the restoration of the right to vote. Expanded Drug Court Eligibility. One recommendation for reducing racial disproportionality is to expand drug court eligibility 225 to certain levels of dealers. Many counties have expanded eligibility of their drug courts to low level, unarmed dealers. Pre-Trial Release In 2002, both CrR 3.2 and CrRLJ 3.2 were both amended to require the court to consider the accused s financial resources for the purposes of setting bond. The rules also required the court to consider the accused s enrollment in an educational training program, participation in a counseling or treatment program, performance of volunteer work, or receipt of financial assistance from the 222 Juvenile Rehabilitation Administration, Division of Treatment and Intergovernmental Programs, Report to the Legislature: Racial Disproportionality in the Juvenile Justice System, at 9-11 (Dec. 2009). 223 See Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010). 224 Laws 2009, ch. 325 (codified at RCW 9.92.066, 9.94A.637, 9.94A.885, 9.96.050, 10.64.140, 29A.08.520). 225 See T. Klement and E. Siggins, supra note 54, at 221. Page 40 of 41

226 government in determining the likelihood that the accused would appear in the future. 226 See 146 Wn.2d 1112 and1126 (2002). Page 41 of 41