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State v. Thorne

August 8, 1996


Appeal from Superior Court, Snohomish (94-1-00385-7) County; Honorable James Allendoerfer, Judge. Judgment Date: 12-16-94.

Guy, J., Durham, C.j., Dolliver, Smith, Alexander, Talmadge, J.j., Concurring. Madsen, J. (dissenting by separate opinion), Sanders, Johnson, J.j., Dissenting. Sanders, J. (dissenting by separate opinion).

The opinion of the court was delivered by: Guy


GUY, J.--


Defendant James M. Thorne challenges the constitutionality of the Persistent Offender Accountability Act, commonly known as the "three strikes and you're out" law. We find the law to be constitutional.

In November 1993, the voters of the state of Washington were asked in Initiative 593 to decide the question:

Shall criminals who are convicted of "most serious offenses" on three occasions be sentenced to life in prison without parole?

Seventy-six percent of the voters of this state answered "yes" to this question.

Initiative 593, titled the "Persistent Offender Accountability Act," amended sections of the Sentencing Reform Act of 1981 (SRA). RCW 9.94A. The new law added the following language to RCW 9.94A.120(4):

A persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death, notwithstanding the maximum sentence under any other law.

Initiative 593 defined the terms "persistent offender" and "most serious offense." A "persistent offender" is an offender who:

(a) Has been convicted in this state of any felony considered a most serious offense; and

(b) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted.

ROW 9.94A.030(27). "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended:

(a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;

(b) Assault in the second degree;

(c) Assault of a child in the second degree;

(d) Child molestation in the second degree;

(e) Controlled substance homicide;

(f) Extortion in the first degree;

(g) Incest when committed against a child under age fourteen;

(h) Indecent liberties;

(i) Kidnapping in the second degree;

(j) Leading organized crime;

(k) Manslaughter in the first degree;

(l) Manslaughter in the second degree;

(m) Promoting prostitution in the first degree;

(n) Rape in the third degree;

(o) Robbery in the second degree;

(p) Sexual exploitation;

(q) Vehicular assault;

(r) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

(s) Any other class B felony offense with a finding of sexual motivation, as "sexual motivation" is defined under this section;

(t) Any other felony with a deadly weapon verdict under RCW 9.94A.125;

(u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection.

RCW 9.94A.030(23). The law does not include juvenile offenses in the definition of "most serious offense." RCW 9.94A.030(23), (25), (27). The voters pamphlet explained that "most serious crimes" essentially consist of all class A felonies and all class B felonies involving harm or threats of harm to persons. 1993 Official Voters Pamphlet at 5 (2d ed.).

Under the new law, the Governor may pardon or grant clemency to an offender, but the legislature recommends that an offender with a life sentence not be released until the offender has reached the age of 60 years old and is Judged no longer a threat to society. The law mandates that the Governor provide twice yearly reports on any offender who has been released through executive action. RCW 9.94A.394.

"Three strikes and you're out" is the popular term used to describe recidivist legislation that calls for the incarceration of a criminal for life upon a third felony conviction. Many other states have enacted "three strikes" types of legislation. See Robert Heglin, Note, A Flurry of Recidivist Legislation Means: "Three Strikes and You're Out," 20 J. of Legis. 213 (1994); Mark W. Owens, California's Three Strikes Law: Desperate Times Require Desperate Measures--But Will It Work?, 26 P. L.J. 881 (1995); James Austin, Ph.D., "Three Strikes and You're Out": The Likely Consequences on the Courts, Prisons, and Crime in California and Washington State, 14 St. Louis U. Pub. L. Rev. 239 (1994). The federal violent crime control and law enforcement act of 1994 also has a "three strikes" section. 18 U.S.C. § 3559(c) (1994). The reason underlying the enactment of so many recidivist laws appears to be the heightened fear of increased violent crime and the public outrage caused by such crime. See Owens, (supra) , at 883-84; Peter J. Benekos & Alida V. Merlo, Three Strikes and You're Out!: The Political Sentencing Game, 59 Fed. Probation 3 (Mar. 1995); Daniel W. Stiller, Note, Initiative 593: Washington's Voters Go Down Swinging, 30 Gonz. L. Rev. 433, 438 (1994-95).


On April 14, 1994, the Snohomish County Prosecutor charged James M. Thorne with first degree robbery, RCW 9A.56.200(1)(b), and kidnapping in the first degree, RCW 9A.40.020(1)(b). In the Affidavit of Probable Cause (filed March 15, 1994), the prosecutor stated that the Defendant had prior convictions for second degree robbery in 1980 and first degree robbery in 1988, and that, if convicted of the current charges, he would face a mandatory sentence of life without possibility of parole. The Defendant waived his right to a jury trial and the case was tried to the court.

Following the trial, the court entered findings of fact and Conclusions of law. The court found that the Defendant entered the gift shop at Stevens Memorial Hospital in Snohomish County and pointed what appeared to be a firearm at the gift shop volunteer. He demanded money from the cash register and he threatened to shoot the volunteer if she sounded an alarm. After he took the money, the Defendant told the volunteer that she was leaving with him. With his hand on her neck, the Defendant walked her out of the hospital. Several times the Defendant made threats to shoot the volunteer. After leaving the hospital he asked if she had a car. When she replied she did not, the Defendant walked her down a public sidewalk near the hospital. Two Edmonds police officers, responding to a report of the robbery and abduction, saw the two and the officers apprehended the Defendant. During the search incident to the arrest, the police found $209 and a bb gun which looked like a real pistol in the Defendant's pockets.

The court found the Defendant guilty of robbery in the first degree and kidnapping in the first degree as charged. At sentencing, the State sought to introduce evidence that the Defendant was a "persistent offender" under the Persistent Offender Accountability Act.

The defense moved to: (1) require the prosecuting attorney to consider mitigating information about the Defendant and exercise discretion in determining whether to seek to have the Defendant sentenced as a persistent offender; (2) require the prosecutor to provide timely notice of any decision to have the Defendant sentenced as a persistent offender; (3) hold a trial to determine whether the Defendant was a persistent offender; (4) set the trial on the issue of persistent offender status before a jury unless the Defendant requested a bench trial; (5) require the prosecutor to disclose all evidence he intended to present at the trial to determine if the Defendant was a persistent offender; and (6) set the standard by which proof must be made that the Defendant is a persistent offender at proof beyond a reasonable doubt. The defense argued that the Persistent Offender Accountability Act was so similar to the habitual criminals statute, RCW 9.92.090, that the procedures mandated by the case law which applied to the prior statute applied also to the newer law.

The Snohomish County Prosecutor replied that: (1) the prosecutor cannot exercise discretion in the application of the persistent offender law in that the prosecutor does not "decide" to seek a persistent offender sentence, as it is an automatic consequence of having the requisite prior convictions; (2) there is no formal notice or charging requirement; (3) the SRA contemplates that sentencing for a persistent offender is a sentencing procedure and no independent trial is authorized; (4) there is no right to a jury in a sentencing procedure; (5) timely provision of documents would be made concerning the Defendant's prior convictions; and (6) the standard of proof required to establish the qualification of the Defendant as a persistent offender is set out in RCW 9.94A.110 as a preponderance of the evidence that the Defendant has the required criminal history.

The court denied the Defendant's motion for a jury trial on the sentencing issue and held that the proof required was a preponderance of the evidence standard set by RCW 9.94A.110. The court held that the Persistent Offender Accountability Act sought certainty in sentencing and that the prosecutor did not have discretion to decide whether a person who is convicted of his third most serious offense will, or will not, be sentenced under the new law.

After a sentencing proceeding, the court found the State had proven, beyond a reasonable doubt, that the Defendant had a prior 1980 conviction in King County for second degree robbery and a prior 1988 conviction for first degree robbery in Pierce County. *fn1 The court also found, beyond a reasonable doubt, that the prior convictions were of the same James Thorne who had been convicted of the present offenses. The court therefore sentenced the Defendant to life in prison without the possibility of parole pursuant to the persistent offender accountability section of the SRA. RCW 9.94A.120(4). Although the court did recognize that the Defendant had suffered from chronic schizophrenia, substance abuse and an antisocial personality disorder, the court found he also had a history of chronic criminal activity and held that the intent of the Persistent Offender Accountability Act was to impose life imprisonment without the possibility of parole on offenders like the Defendant.

The Defendant did not challenge his convictions. The Defendant appealed his sentence and we accepted direct review. The Defendant challenges the Persistent Offender Accountability Act under a number of statutory and constitutional theories.


(1) Was Initiative 593 enacted in violation of Article II, Section 37 of the Washington State Constitution?

(2) Was the Initiative enacted in violation of Article II, Section 19 of the Washington State Constitution?

(3) Does the Persistent Offender Accountability Act violate the Bill of Attainder Clause of the federal constitution, Article I, Section 10, or Article I, Section 23 of the state constitution?

(4) Was the life sentence imposed without statutory authority?

(5) Does the Persistent Offender Accountability Act violate the separation of powers doctrine?

(6) Is the Act unconstitutionally vague or does it violate equal protection guarantees?

(7) Is the life sentence cruel under Article I, Section 14 of the Washington State Constitution, or cruel and unusual under the Eighth Amendment to the United States Constitution?

(8) Did the procedures employed by Snohomish County violate due process by not affording formal notice of the "charge," a jury trial at the sentencing proceeding, and proof beyond a reasonable doubt of the fact of the Defendant's prior convictions?

Article II, Section 37

The Defendant argues that Initiative 593 is void because it unconstitutionally amended other existing statutes without setting forth those laws in full, as required by Article II, Section 37 of the Washington State Constitution.

Article II, Section 37 provides:

No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.

Our first inquiry is whether the requirements of Article II, Section 37 apply to initiatives as well as to statutes. In Yelle v. Kramer, 83 Wash. 2d 464, 472, 520 P.2d 927 (1974), this court stated that all laws enacted by either the people or the legislature must be governed by the provisions of the constitution in force at that time, and that the people in their legislative capacity are not superior to the constitution. The court specifically rejected the contention that appropriate constitutional provisions do not apply to initiatives. More recently, in Washington Fed'n of State Employees v. State, 127 Wash. 2d 544, 901 P.2d 1028 (1995); we considered whether Article II, Section 19 applies to initiatives. The court reasoned that Amendment VII, which established the initiative right, was an amendment to Article II, which concerns legislative authority and, therefore, the provisions of Article II are applicable to both the legislative and initiative process. Washington Fed'n of State Employees, 127 Wash. 2d at 551-52. This same reasoning leads us to the Conclusion that Article II, Section 37 also applies to the initiative process. Furthermore, the purposes underlying this constitutional provision apply equally to initiatives and to statutes.

The purpose of Article II, Section 37 is to disclose the effect of the new legislation and its impact on existing laws. Washington Educ. Ass'n v. State, 93 Wash. 2d 37, 39, 604 P.2d 950 (1980). Article II, Section 37 sought to remedy the practice of amending or revising laws by additions or alteration which, without the presence of the original law, were usually unintelligible. Yelle v. Bishop, 55 Wash. 2d 286, 299, 347 P.2d 1081 (1959).

Initiative 593 did set out the entire text of RCW 9.94A.120 and .030 which were actually amended by the Initiative. Voters Pamphlet, (supra) at 14-22. However, the Defendant argues that all statutes which may, in certain cases, be affected by the new law (including the statutes which set forth the maximum sentences for individual crimes) also should have been set forth in full in the voters pamphlet. Specifically, the Defendant argues that because the new law would ...

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