State v Deborah Freitag :: 127 Wn2d 141
Category: Sentencing Guidelines
This is a test of the Sentencing Reform Act of 1981 (SRA). The trial court, in recognition of Ms. Freitag’s concern for others and her lack of criminal history reduced the minimum sentence from ninety days confinement to the equivalent of 89 eight-hour days of community service. One might wonder, however, if she was truly concerned for others, why was she driving under the influence and jeopardizing other peoples’ lives?
The Supreme Court majority wrote that “it is the function of the judiciary to impose sentences consistent with legislative enactments.” [at 144]. They explain that the Legislature “specifically considered criminal history when establishing standard sentencing ranges.” [at 144]. Quoting from State v Rogers, 112 Wn2d 180, 183 (1989): “Because criminal history is one of the components used to compute the presumptive range for an offense, it may not be used as a mitigating factor.” [at 144]. In other words, the Legislature established minimum standards for sentencing within the Sentencing Reform Act. They already took into account minimum standards for people with minimum records. Therefore, the courts are not free to mitigate downward from these standards.
Furthermore, the Court rejected an activist view of the SRA and upheld the separation of powers. They wrote, “While the trial court may feel frustrated in having to impose a sentence within the sentencing guidelines, the Legislature has exercised its prerogative.” [at 145].
Barbara Madsen, however, counters the constructionist holding of the majority with her activist pen. “The majority’s handwringing over being boxed into its result by the Sentencing Reform Act of 1981 inspires my dissent. It is the majority of this court, not the SRA, that has closed the door on the exercise of trial court discretion [Ed.--activism].” She deplores case law that has established departures upward of the SRA and lists over a page of examples. Then she chastises the Court for not being creative enough to depart downward. “When examining departures downward, this court has not undertaken its duty to create common law with the same vigor.” [at 147].
She continues: “One is left with the nagging question of why upward departures are different from those downward.” [at 148]. This writer can answer that: Because the Legislature has set MINIMUM, not maximum standards with the Sentencing Reform Act. If you wish to reform the law, take off your judicial robes and run for a legislative office.
Rating the Usual Suspects:
| pass | Wise, Donna | |
| fail | Johnson, Charles | |
| fail | Kennedy, Faye | |
| fail | Lasnik, Robert | |
| fail | Lobsenz, James | |
| fail | Madsen, Barbara | |
| fail | Utter, Robert | |
| fail | VanEss, Barbara J | |
| fail | Webster, Walter |