In State v. Jordan, a unanimous Washington Supreme Court ruled that a trial court properly increased a defendant’s prison sentence because he had been previously convicted of manslaughter in Texas, even though Washington has more forgiving self-defense laws than Texas. The court held that sentencing judges may properly consider the fact that a defendant was convicted in an out-of-state court, though due process requires further protections when the judge considers the circumstances underlying a prior conviction. The court next held that under Washington statute, sentencing judges may consider out-of-state convictions as long as they are roughly comparable to Washington offenses rather than precisely equivalent. While criminal law scholars might enjoy slogging through the different state self-defense doctrines that make up the quilt of American justice, the court would rather stay out of it.
Similarly, in State v. Olsen, the Washington Supreme Court ruled that sentencing judges may consider out-of-state convictions for criminal offenses that are broader than Washington’s, if the defendant was convicted of or admitted to facts that are also criminalized by the Washington statute. Though the U.S. Supreme Court issued an opinion last year in Descamps v. U.S. that was skeptical of this so-called “modified categorical approach” in some federal contexts, the state court affirmed that Washington will still use this approach to decide whether to consider out-of-state convictions during sentencing. Here, the Supreme Court determined the trial court properly considered the defendant’s California conviction for making terrorist threats during sentencing. While the California statute penalizes a broader range of conduct than Washington’s felony harassment offense, the defendant admitted to committing harassment as part of his no contest plea. Therefore, the specific conviction was comparable to a Washington conviction. Sometimes a terrorist is also a harrasser.
Taken together, the two cases instruct that a sentencing judge may consider an out-of-state conviction as comparable to a Washington conviction in sentencing a defendant without further analysis when the elements of the crime are substantially similar, even where affirmative defenses differ between the states. If the out-of-state offense is broader than Washington’s, the sentencing judge must dig deeper to determine whether the defendant was charged with facts that would have supported a conviction in Washington and then was convicted or plead guilty to those facts. In either case, the sentencing judge is not overstepping constitutional or statutory bounds because the court is only looking at the fact of a general conviction or the fact of a specific plea or finding in a general conviction.