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Posted: 4/8/2021 6:20:58 PM EDT
[Last Edit: 4/9/2021 4:44:13 PM EDT by stratfordwill]
It's been a long time since I've posted. Still kicking.  Sorry for the wall of text. I got a little annoyed.

tldr: skip to the bottom for a template letter to the legisliars about the utter hypocrisy of gun control legislation aimed at us while they are handing out cookies and milk to the violent predators.

With the latest silliness from the brave folks who are going to save us all from the scary black guns, I was motivated to throw this together.  It is likely that the proposed legislation in SHB1282, SB5285, and SHB1169 will not pass this session only because of the consequences of a loopy Supreme Court decision that is being dealt with, but they will be back with a vengeance next session, so we should absolutely stay on top of it.

Some of you may remember that I work in criminal justice here in WA and there's been a serious amount of silliness from our betters in Olympia lately. The Supreme Court wrote us a letter last year telling us that because of racial disparities, they were sort of going to do away with all those unnecessary legal doctrines like precedent and make some serious changes because we are all clearly racist assholes that won't stop racisting unless they make us.

First they killed the death penalty, a penalty that is actally imposeed incredibly rarely but that has been used to motivate seriously bad dudes not only to plead guilty, but also to reveal the locations of their victims. But whatever, who cares about victims when we can protect violent scum. It's one thing for the people to elect a legislature who changes the law, but the Supreme Court eliminated it because they think they are a super-legislature now.

Then they wrote "implicit bias" into the jury selection rules. "Implicit bias" is a concept that is universally accepted by the racist critical theorists (label corrected for accuracy) despite it being debunked by the authors of the fundamental study that is used to tout it. Basically, "implicit bias" means that we all treat people of other races differently, even though we don't consciously intend to. It sounds like common sense; it's hard to argue that it's possible or even likely. But it is quite possibly utter bullshit as there have been other studies that show that people bend over backwards not to treat people of other races differently. In any case, it's not sufficiently sound theory on which to change fundamental legal procedures like jury selection. To wit: now you can't remove a juror for sleeping through jury selection or because they say they hate cops if they are of a particular group.  So they are being explicitly racist in trying to not be implicitly racist. Never let anyone tell you that Justices are smart.

Next they unilaterally eliminated the ability to arrest juveniles for failing to appear for court through their rule-making authority. And the legislature prohibits us from arresting a juvenile for prostitution. For those of you that don't know, our juvenile justice system is not about punishment, the "best interests of the child" are at its core and it is almost entirely rehabilitative, as opposed to the adult system. So we never sent juvenile prostitutes to JRA and just locked them up. We arrested them to get them away from the street and the people abusing them. Similarly, with kids addicted to drugs, we use the system to get them into treatment not to punish them. With the new rules on warrants there is no ability to intervene and protect children from adult predators who will use them for sex and for drug distribution especially once it becomes widely known that we can't really touch them.

And then we get to the Insane National News Story that wasn't. Remember the amount of news coverage there was of the legalization of marijuana here and in Colorado. It was a huge story covered for months. Made national newscasts and local coverage everywhere.  But how much have you heard of the fact that the Washington Supreme Court, unilaterally decriminalized possession of every drug, including meth and heroin, in February. If you read the few headlines out there, it reads like a libertarian triumph. It isn't. The Seattle Times headline they ran with was "Washington Supreme Court strikes down law that makes unintentional possession of drugs a crime" which is again utter bullshit. One of the common defenses in drug cases is the "not my pants" defense. A druggie is found with drugs in their pocket; they look at the cop with wide eyes and say "these aren't my pants", quickly followed by "I don't remember my friend's name who gave me these pants" or "I just bought them at the thrift store, no I don't remember which one". The cop chuckles, and so does the jury when they hear it. Everyone knows that it's bullshit. Except the brain trust in Olympia.

Washington has a quirk of the law, that while its repeatedly been upheld by the Supreme Court against every challenge, a good libertarain might find flaws. The State has to prove every element of a crime against a person beyond a reasonable doubt, generally speaking. But for certain strict liability crimes, knowledge of certain facts is not an element of the crime. For instance, if the girl is 13, the State doesn't have to prove that the defendant knew her age when he had sex with her. A lot of the hunting and fishing regs are also strict liability. If you shoot an elk in deer season, it doesn't matter that you made a mistake, it's still a crime. Strict liability is rarely used, but it is necessary for some crimes. Drug possession is not strict liability despite what some headlines might say. While knowledge is not an element of the crime of drug possession, and while the state does not have to prove beyond a reasonable doubt that you knew the small baggie of white crystals in your pocket was meth, you do have a defense called unwitting possession. The law shifts the burden from the state to the defendant to prove, by only a preponderance of the evidence (more likely than not), that you did not know they were drugs. It is a reasonable compromise between strict liability, and between the state having to prove knowledge beyond a reasonable doubt. And it has been upheld repeatedly by the Supreme Court. Until now.

Now the Supreme Court has invented a new doctrine of "passively" carrying an illegal substance. They have pretended to buy the "not my pants" defense completely. And in doing so they have eviscerated the last 40 years of convictions in the State of Washington, not just for drug possession, but for every criminal who has ever been convicted of a drug possession charge. In doing so they rejected a compromise proposed by one Justice that was consistent with past decisions and would have changed the law going forward, but not disturbed previous convictions. They rejected reasonable compromise and chose to declare our drug possession law unconstitutional and void. The consequences of this decision are disastrous. Washington has had a score based system for sentencing for decades. Every sentence of a felon in Washington is based on their prior felonies. The Supreme Court decision on drugs is retroactive, so every sentence of every offender that included points for drug convictions is now void, and they must be resentenced. Hundreds of felons were released from jails and prisons already. Murderers and rapists who entered plea agreements that were based on their criminal history at the time, and were sold to victims based on the duration of those sentences will be resentenced. And the story barely made a blip in local media, and went completely unnoticed nationally. This is the biggest story in Washington criminal justice in years. And people barely know about it. There is currently a motion for reconsideration pending at the Supreme Court, and there is hope that it will be overturned, but as it stands, we are going to be dealing with this for months and releasing many violent felons earlier than their plea bargains agreed.

So what the hell has all that got to do with gun control? Well, our lovely legislators, not to be outdone by the stodgy old Supreme Court, have just got to pass anything that says "criminal justice reform" on the cover, so these three bills are what they have come up with: SHB1282, SB5285, and SHB1169. Together they cover a lot of ground, but the most egregious abrogation of the will of the people of the State of Washington is the effective repeal of the 1995 Initiative "Hard Time for Armed Crime". The Initiative created some of the best and harshest gun crime laws in the US. Felons who commit crimes with firearms and their accomplices are subject to lengthy enhancements to their sentences for each crime, each firearm, and each victim. And they can't get early release on those enhancements. Most felons in Washington only serve 2/3 of their sentences because of "good time" early release. Only serious violent offenses and firearm enhancements are not subject to the good felon discount. Serious violent felonies (only a few of the most serious crimes like murder and some rapes and assaults) get a 10% discount, Firearm enhencements get no good time at all. Additionally, all firearm enhancements must be served consecutively, not concurrently. If you want to curb "gun violence" you'd be hard pressed to find a more narrowly tailored law that punished only people who committed felonies while armed with a firearm. So here comes the hypocrisy.

While our fearless leader in DC is out fearmongering about "ghost guns" and pistol braces, that are featured in somewhere between zero and negative two actual gun crimes, the legislature of Washington has decided that they want to repeal Hard Time for Armed Crime. SHB1282 and SHB1169 combined give early release time to felons convicted of serious violent crime and to felons convicted of firearm enhancements, and they allow concurrent sentences for firearm enhancements.

Example: Johnnie Dirtbag gets his Glock and his friend Jimmy Methhead and they decide to rip off their drug dealer. Jimmy brings his Lorcin .380 (barely a firearm, I know). They meet Frank Dopedealer at the park and Frank is accompanied by his brother Ed. Johnnie shows Frank and Ed his gun and takes Frank's drugs and wallet.

Johnnie and Jimmy are charged with 1 count of Robbery 1 and 2 counts of Assault 2 with two firearm enhancements on each charge since both defendants were armed. Johnnie is charged with Unlawful Possession of a Firearm in the 2nd degree since he has 2 prior felonies. This is Jimmy's first felony.

Current Law:Johnnie: Offender score: 7 on the Robbery 1, 8 on each Assault 2, and 5 on the Unlawful Possession of a Firearm. The robbery is the longest range and the sentences for assault 2 and the gun charge run concurrently with it. His range on the Robbery is 87-116 months. Firearm enhancements: 22 years: 5 years for each gun on the Robbery, 3 years for each gun on each Assault 2, no enhancement for the gun charge. 10% early release time on the Robbery.  

Johnnie's actual range after early release: ~28 to ~31 years

Jimmy: Offender score: 4 on the Robbery 1, 5 on the Assault 2. Same enhancements.

Jimmy's actual range after early release: ~26 to ~27 years.

After SHB1282, SB5285, and SHB1169

Johnnie's actual range after early release: ~8.5 to ~10 years
Jimmy's actual range after early release: ~6.5 to ~7.5 years

Under current law both Jimmy and Johnnie have a hell of a lot of motivation to plea bargain for a lesser sentence and to cooperate against each other. If you commit a gun crime in Washington you currently face very stiff penalties. As a rule of thumb for plea bargains, it is often the case that plea bargains are to half or less of the potential range depending on the ranges and the strength of the charges. And with firearm enhancements rarely do we apply every enhancement that we could. But it creates leverage that forces violent felons to consider lengthy sentences in a plea bargain. Plea bargains reduce the trauma to victims and drastically reduce lengthy appeals and the possibility of retrials. Under current law, I would expect a plea bargain in the range of 10 years for Johnnie and 5 or 6 for Jimmy. After SHB1282, SB5285, and SHB1169 we would be lucky to get a plea bargain of more than 4 or 5 years for either defendant. They gut the State's leverage for plea bargaining.
So while your elected representatives are eagerly trying to prevent you from lawfully exercising your 2nd Amendment rights, they are also planning on drastically reducing the consequences of felons committing violent crimes with guns. The hypocrisy is outrageous.

Well that went a bit long. Apologies if you read all that.

Here is a draft letter for you to send to your elected reps to attempt to remind them who they represent:

Dear ______________,

It has come to my attention that in SHB1282, SB5285, and SHB1169 of the 2021 legislative session, it is proposed that you eviscerate the 1995 initiative "Hard Time for Armed Crime" by removing restrictions on early release for and allowing concurrent firearm enhancements. This is outrageous. At a time when the gun rights of law abiding citizens are being attacked across the nation, the Legislature of our state is considering reducing the penalties for violent felons who choose to use guns to terrorize, assault, and murder innocent victims.

This is rank hypocrisy. Criminal Justice reform is very in vogue right now, but not everything labeled reform is just. Because of the "Hard Time for Armed Crime" initiative, Washington has some of the stiffest penalties for gun crime in the nation, and one of the lowest firearm murder rates. These laws work.
Enacting SHB1282, SB5285, and SHB1169 would drastically reduce the ability of prosecutors to reach plea bargains with violent offenders that protect our communities and reduce the trauma to victims of violent crime.

If you are serious about reducing gun violence, punishing violent felons who use guns to victimize the innocent is a far more effective remedy than reducing access to firearms by law abiding citizens. I expect you to represent all the citizens of Washington, most of whom do not commit felonies with guns and who expect that those who do will be held to account.

Oppose these outrageous bills that seek to undo the will of the people as expressed by a statewide Initiative. Oppose these outrageous bills that tell violent felons that we aren't going to hold them accountable for using guns to hurt people. Oppose these outrageous bills that make the citizens of Washington less safe, and expose the rank hypocrisy of advocates of firearm restrictions that only affect the law abiding citizen.

A Disgusted and Outraged Voter

Link Posted: 4/8/2021 7:47:22 PM EDT
Thank you for the excellent post.  I read every word.  Thank you for including a sample letter, too.

I will definitely be keeping my eye on these three bills, especially next session.
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