Clark County Judge James Ladley couldn't seem to believe what he was hearing. Before him was John Letellier, a 47-year-old Navy veteran accused of what a former federal prosecutor would later call a "chippy robbery" of a Subway store, netting $107 and a $5 gift card.
Chippy or no, a conviction would send Letellier to prison for life under Washington's three-strikes law — and he wanted to plead guilty.
If he went to trial, the judge told Letellier, he might be acquitted or found guilty of a lesser crime or ...
Letellier, who committed the robbery while waiting for an opening at a Veterans Affairs addiction treatment center, cut him off. "The higher the expectation the greater the fall."
The judge pressed on. "Some people would conclude that life without parole is more onerous or worse than the death penalty. If I sentence you to life without parole, this file that I'm holding will get old, it will get dusty, it will get moldy, and you will still be sitting there."
Go away and think about it, he told Letellier. Eighteen days later, Letellier came back. He pleaded guilty, though he said he believed three strikes to be unconstitutional.
That was 1999. And sit in prison Letellier did, even after the Legislature in 2019 dropped second-degree robbery — the charge Letellier pleaded guilty to — from the list of strikeable offenses. Life in prison is too severe a punishment for the crime, which generally involves no weapon or physical injury, lawmakers decided, but they didn't make the change retroactive.
Yet, Letellier got out. He was released after 21 years in July 2020. He died of pancreatic cancer three weeks later, at 68.
He might never have been released but for a new willingness to question the tough-on-crime ethos of past decades. Among those asking questions: prosecutors, the very people who have enforced that ethos but are now dealing with a legacy that some believe violate what Snohomish County Prosecutor Adam Cornell calls "an evolving standard of decency," not to mention calls for racial equity.
The state Supreme Court is scheduled this week to discuss whether it will delve into this evolving standard, by accepting or declining to review a case that could potentially free dozens of three-strikes prisoners.
Following the law enforcement killing of George Floyd, policing has grabbed the lion's share of attention when it comes to reforming criminal justice. Yet, statistics reveal stark racial disparities in who goes to prison, and for how long.
In Washington, there is probably no greater example than the three-strikes law approved by voters in 1993 — the nation's first and an embodiment of the tough-on-crime era, designed to ensure "persistent offenders" would never be free to commit more crimes. Judges are required to hand down life sentences to repeat offenders of a wide array of crimes, from murder and rape to robbery and assault, and every year, more men and women are sentenced under the law.
While a majority of three-strikes prisoners are white, as was Letellier, Black people, representing about 4% of the state's population, account for 38% of 289 current three-strikes prisoners sentenced in Washington (including eight transferred to other states), according to the most comprehensive data released to date by the Department of Corrections (DOC), provided to The Seattle Times in December. An additional six of 16 people who died in prison while serving three-strikes sentences were Black.
Camara Banfield, chief criminal deputy of the Clark County Prosecutor's office, which petitioned a judge on Letellier's behalf, said her office now thinks carefully before it prosecutes a case that will trigger the three-strikes law. "People are really considering ... what is the harm that great that you actually should take someone's liberty away for the rest of their life?"
It's a matter of debate, as evident from what happened after the Legislature removed second-degree robbery from the strike list but didn't make the change retroactive. Legislators followed up with another law, which took effect last June, that allows prosecutors to seek resentencing when an original sentence "no longer advances the interests of justice."
Yet, prosecutors around the state don't agree on whether the resentencing law can or should apply to three-strikes cases — leading Rep. Roger Goodman, a Kirkland Democrat who chairs the House Public Safety Committee, to say he worries about "justice by geography."
Yakima County Prosecutor Joe Brusic opposes using the new law to get three-strikers out of prison. "They put themselves there. No one else," he said.
To renege on life sentences lessens accountability to victims and would be deeply unpopular with the voters who elected him, Brusic continued. "I guarantee you, people in Yakima County are not going to have a favorable response if we start resentencing persistent offenders."
Elected officials until recently have tended toward the same judgment about the state as a whole, which has been slower than many others to revisit three strikes. At least 29 states eased mandatory penalties by 2014, according to a Vera Institute of Justice report.
John Carlson, the conservative talk-radio host who co-sponsored the 1993 three-strikes initiative, is watching to see if Washington's Legislature goes further. One bill in the coming session, sponsored by Sen. Manka Dhingra, a Redmond Democrat, would give those with a second-degree robbery strike priority before an expanded state Clemency & Pardons Board, and another bill taking up retroactivity is expected.
Neither changing standards nor racial disproportionality has lessened Carlson's belief in three strikes, which he said punishes conduct not color. While he has occasionally supported releasing prisoners based on their behavior behind bars, including Letellier, he said he will run an even tougher three-strikes initiative should legislators weaken the existing law.
"It's already been drafted."
Evolution of the law
Ever since three strikes was enacted, people have argued about whether those it targets deserve their fate. And yet, it has been surprisingly hard to track what crimes they committed. The state stopped reporting the records of three-strikes prisoners after 2008 and only recently resumed.
But a Seattle Times analysis of DOC data for the 289 current three-strikes prisoners shows more than half, 155 people, received a life sentence after assault, burglary, robbery or drug-related convictions triggered the third and final strike.
Some previously committed more severe crimes. About half of current three-strikes prisoners have murder, manslaughter or sex crimes on their record.
For 56, almost one in five, their records consist entirely of lesser crimes, including assault, burglary, robbery or drug-related offenses.
As the Legislature considered dropping second-degree robbery from the strike list, the Washington Association of Sheriffs & and Police Chiefs objected, saying many three-strikes prisoners had originally been charged with more serious crimes and pleaded to lesser offenses.
Some had used a weapon, or threatened to, the association wrote in a letter to legislators. On a list of examples was Letellier.
When the tall, slender man with reddish brown hair walked into the Subway, intoxicated, he motioned to his jacket pocket and said he had a gun, according to police records. He was pretending, he told an officer.
A victim doesn't know that, said Brusic, the Yakima County prosecutor, and the trauma can be lasting.
Legislators, in a deal with the Washington Association of Prosecuting Attorneys, agreed to nix retroactivity, leaving 64 people with a second-degree robbery strike in prison.
In stepped Dhingra, who is a King County prosecutor as well as legislator. She successively pitched the bill to let prosecutors sift through cases and choose ones they believe appropriate for resentencing.
"That was absolutely the intent, to address the robbery two convictions," Dhingra said, though the bill was meant to apply to cases beyond three-strikes, too. "At that time, we weren't clear on how it would play out and what hurdles there would be."
The biggest, contend Cornell and some fellow prosecutors, is the law itself.
Cornell sympathizes with its intent, saying society has moved toward a greater focus on rehabilitation and mercy. Yet, he said Dhingra's bill didn't give explicit authority to undo mandatory sentences like three strikes. So he believes prosecutors and judges are bound by the law in effect when a crime was committed.
King County Prosecutor Dan Satterberg knows otherwise because he helped a three-strikes prisoner get resentenced — before Dhingra's bill took effect.
Long arguing justice needs to look backward as well as forward, Satterberg has for reviewed three-strikes cases with an eye toward supporting clemency. The board and Gov. Jay Inslee have been receptive in recent years, likely in part due to compelling petitions prepared by the Clemency Project's top lawyers, said Tip Wonhoff, the governor's deputy general counsel. By Wonhoff's count, Inslee has granted clemency to 36 three-strikes prisoners.
But clemency is a slow process, Satterberg said, and granting it a political risk. Going before a judge is more direct, and that's what he did in 2019 on behalf of a man who struck out in 1999 on second-degree robbery convictions after robbing two banks by passing notes to tellers.
Satterberg sidestepped the mandatory sentencing issue by persuading a judge to vacate the convictions and allow the man to plead guilty retrospectively to theft, which is not a strike.
The Clark County Prosecutor's Office essentially followed this creative approach when approached by Letellier's lawyer, former U.S. Attorney for Western Washington Mike McKay. Now in private practice, he had been asked to take on the case by the Seattle Clemency Project, which matches long-serving prisoners with top-flight lawyers.
"The removal of robbery in the second degree from the three-strikes law presents a dramatically different legal landscape than the one that existed when Mr. Letellier was sentenced in 1999," read a joint motion, asking that he be allowed to swap out his plea.
"If Mr. Letellier was facing the same charge today ... he would likely be sentenced in the range of 43 to 57 months in prison."
That range would take into account three previous robberies. In one, he hit a man with a wine bottle after a night of drinking and tied him to a bed with sheets and neckties.
Letellier had once been a quiet, smart kid who knew everything about sports, said his brother Jim Letellier, a retired electrician in Gig Harbor. But drugs were his undoing, and after roughly two years in the Navy, he was often homeless.
"I thought he'd be better off in jail," Jim Letellier recalled thinking after his brother's last arrest, though he called the life sentence "grossly unfair."
Jennifer Smith, a lawyer who co-founded the Seattle Clemency Project in 2016, said she thought: "We're going to go into prisons and meet people who have life sentences who are just, you know, totally depressed and have given up."
"That's not what we've seen." Many people "find something in themselves and say, 'Even if I'm here for life, I'm going to make something of my life.' "
Letellier, in prison, became active in Alcoholics Anonymous. He joined a group called the Redemption Project and was asked to serve as a facilitator for a restorative justice program. He took up drawing cartoons, hundreds of them, lightly making fun of inmates and guards.
In the end, he got so sick McKay didn't think Letellier could make it to court for resentencing. The lawyer called the Clark County prosecutor's office, which agreed to bypass a hearing and simply dismiss the robbery charge. Lettellier was in a hospice room overlooking downtown Spokane by 5 p.m. that day, McKay said.
Open to consideration
The limitations some prosecutors see in the resentencing law do not necessarily mean they are unwilling to review cases.
In August, Cornell told the state Supreme Court he would not fight a petition for release made by Lawrence Fillion, who struck out on a second-degree robbery conviction that involved stealing beer and cigarettes. Fillion argued that his life sentence, in light of the removal of the crime as a strike, constitutes cruel and unusual punishment and violates the constitutional right to equal protection.
Cornell said he agrees, and the concession means there's no opposition. If the court agrees to accept the case, scheduled to be discussed Thursday, and sees the issue the same way, it could effectively free all prisoners with a second-degree robbery strike.
Cornell and other prosecutors are also following Satterberg's lead by supporting three-strikes clemency petitions.
Pierce County Prosecutor Mary Robnett said she began a review of 89 cases after taking office in 2019, finding 23 with second-degree robbery strikes. "It concerned me," she said.
Some also had committed more serious crimes, including murder; Robnett is not interested in advocating for their release. With several others, she is.
At a Sept. 10 hearing of the Clemency & Pardons Board, which makes recommendations to the governor, prosecutors from Robnett's office spoke in support of Marcus Price and Kenneth Donald.
Both were sentenced in the early years of three strikes, and had recently gotten the attention of the Seattle Clemency Project. Their cases before that had been largely forgotten and both spent decades in prison without a visit from anyone.
"This was my burden to carry," the 52-year-old Price said in a phone interview from prison, explaining why he didn't ask his three daughters to come.
Price described his younger self as "very immature and very stupid." At 17, he and an AWOL soldier robbed a video store at gunpoint. It later counted as a strike even though three strikes wasn't enacted until nine years later and he was a juvenile when he committed the crime. A lawsuit brought by another three-strikes prisoner, before the state appeals court, challenges the constitutionality of such juvenile strikes.
In his 20s, Price was convicted of robbing and attempting to rob a deli and grocery.
He said he was numb when he was received a life sentence in 1995, but "had to figure out a way to make myself a person I could live with." He took classes offered though a community college, became a dedicated welder and devoted himself to Islam.
Price and his supporters — including Assistant Chief Criminal Deputy Brooke Burbank of Robnett's office, who called Price's rehabilitation "extraordinary" and cited his young age when committing his first strike — outlined much of this to the board. It voted unanimously to recommend clemency.
It voted the same for Donald, a Vietnam veteran who committed a string of robberies while addicted to cocaine. Now 70 and diagnosed with Parkinson's disease, he has spent more than two decades in prison working diligently, the board noted, including as a janitor, fabric cutter and sewing machine operator.
Advocates for incarcerated individuals have been encouraging Inslee to act on clemency recommendations while COVID-19 spreads rapidly through prisons. The governor commuted Donald's sentence in December but has yet to decide about Price, who got the virus and has since recovered.
Wonhoff, of the governor's office, said he knows of three former three-strikes prisoners granted clemency by Washington governors who have been charged with new crimes. That's a much lower recidivism rate than for the general prison population.
But one of those crimes cast a particularly dark shadow: a drug-related murder allegedly committed by Stonney Rivers after being granted clemency by Gov. Christine Gregoire. Rivers is in jail awaiting trial, scheduled to begin Jan. 11.
Other released three-strikes prisoners appear to be building new, law-abiding lives. They work for a lumber yard, a warehouse, a car dealership, local government.
In 2014, Orlando Ames — who struck out on an assault conviction after an argument on a bus and would have served roughly two years if not for three strikes — was granted clemency by Inslee. He'd served 25 years.
He said he was ready, having spent much of his time in prison in classes. He now supports others leaving prison as the re-entry director for the Freedom Project. He's married to a kindergarten teacher he met after his release.
"I'm very happy," he said, delighting even in the ability to get in his car and turn on music.
From time to time, Ames also appears before the Clemency & Pardons Board, testifying on behalf of others seeking freedom.
"I'm not a unicorn. There are many like me," he said. "I'd love to see others come home."
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