Jurisprudence

Washington State Shows How a Truly Progressive Court Changes Everything

Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench.

Raquel Montoya-Lewis smiles, standing at a podium next to Jay Inslee as he announces her appointment at a formal ceremony.
Gov. Jay Inslee announces Raquel Montoya-Lewis’ appointment to the Washington State Supreme Court in December 2019. Office of the Governor

The Washington Supreme Court is on a roll. On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21—making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades. And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

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This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

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Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence. States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution. That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

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Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant. (In November, the state voted overwhelmingly to keep both women on the bench.) There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court. Inslee’s appointees created the most diverse high court in American history.

The Washington Supreme Court was far from conservative before these appointments. But less than three months into 2021, it is flexing its muscles as a progressive powerhouse. In Mancini v. Tacoma, for example, the court affirmed a jury’s award of $250,000 in damages to an innocent Black woman who was traumatized by police who raided her home, pointed guns at her, dragged her outside wearing nothing but a nightgown, and held her on the ground, handcuffed, for 15 minutes. The officers, through a combination of negligence and racial profiling, had raided the wrong apartment. The victim would have had little chance of winning damages in federal court thanks to qualified immunity. But the Washington Supreme Court allowed the jury’s verdict to stand, refusing to grant immunity to the officers or hold them to a lower standard because they claimed to be protecting public safety.

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Mancini was a modest victory for criminal justice reform, an affirmation that police who terrorize Black communities may not escape liability, but its impact pales in comparison to State v. Blake, a landmark ruling the court issued the following month that will change criminal justice in Washington forever. Blake challenged the state’s unique ban on drug possession. While every other state requires proof that the defendant knew they possessed drugs, Washington has no such requirement, so an individual who had no idea she possesses an illegal substance could still be prosecuted and imprisoned. The defendant in the case, Shannon Blake, was convicted of possessing a tiny amount of methamphetamine, which was found in the coin pocket of her jeans. She alleged that she had borrowed her friend’s jeans and did not know they held any drugs. And she asserted that, by punishing her for innocent conduct, the law violated her due process rights.

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In a sweeping 5–4 decision, the Washington Supreme Court agreed. (Montoya-Lewis, Whitener, Yu, and González joined Justice Sheryl Gordon McCloud’s opinion of the court.) The majority held that, under the state constitution’s due process clause, the Legislature lacks “the power to punish Blake for innocent conduct—or, more accurately, nonconduct—without proving any mental state at all.”

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As Crosscut’s David Kroman has explained, the decision had momentous consequences for current and former drug defendants. The decision didn’t just apply to the particular circumstances of Blake’s conviction. It also wiped the state’s existing possession law off the books entirely, legalizing drug possession throughout the state and forcing law enforcement to stop arresting and charging people caught with small amounts of illegal substances. The Washington Legislature will likely pass a new law once again prohibiting possession of drugs—but it cannot apply the revised statute retroactively thanks to the due process clause. Because the old law has been completely voided, past convictions for possession cannot stand. Thousands of people will now be able to clear their criminal records; thousands more will be resentenced, released from prison, or freed from parole. Defendants charged with fines and fees under the old law will have to be refunded. Washington residents thrown into removal proceedings due to a conviction under the nullified law may be able to avoid deportation.

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Too many decisions about criminal law tinker around the edges of a fundamentally broken system. Blake, by contrast, cuts to the heart of a grave injustice, and provides an immediate remedy to everyone who was wronged.

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In March, the same five justices who made up the Blake majority issued another blockbuster opinion, this time involving life without parole, or LWOP. SCOTUS has prohibited states from imposing mandatory LWOP on people who were under 18 at the time of their crime. That means a certain conviction—say, first-degree murder—can’t automatically trigger LWOP; instead, the judge must have discretion to hand down a lighter sentence. In 2018, the Washington Supreme Court imposed a stricter rule under the state constitution, barring all LWOP sentences for minors. (That means a juvenile defendant must always be able to petition for early release.) Neuroscientists, the court reasoned, have found that minors have diminished culpability because the part of the brain that inhibits impulsive and risky behavior does not fully develop until the age of 25. For the same reason, these defendants have greater capacity for rehabilitation. Thus, condemning a child to die behind bars is fundamentally cruel in violation of the Washington Constitution.

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On March 11, in two combined casesMonschke and Bartholomew—the court took this reasoning a step further, moving Washington ahead of every other state in the realm of juvenile justice. Neither defendant was legally a child when he committed his crime; one was 19, the other 20. Both were automatically sentenced to LWOP upon conviction of aggravated first-degree murder. If they had been a few years younger, they would both be eligible for resentencing under the court’s recent precedent. The court rejected this “arbitrary line drawing,” explaining that there is “no meaningful developmental difference” between the brains of 17-year-olds and those who are 20. Thus, the “constitutional guarantee of an individualized sentence—one that considers the mitigating qualities of youth—must apply to defendants” who were under 21. Every defendant in Washington state who was sentenced to LWOP for a crime committed before the age of 21 may now request early release at a resentencing hearing.

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Decisions like these will not always be politically popular. Safeguarding constitutional rights takes real courage, and in the federal judiciary, many Democratic appointees prefer to assume a defensive crouch rather than defend a robust conception of civil rights. To his credit, Biden appears to be looking for diverse judges with nontraditional career paths and proven progressive credentials. If he does not draw nominees directly from the Washington Supreme Court—and Inslee’s appointees would be grand slam choices—he should look for the kind of candidates who would fit comfortably on that bench. Democrats have spent far too long playing it safe with cautious, centrist nominees. If they want judges who serve as a serious intellectual counterbalance to Donald Trump’s Federalist Society heavyweights, they’ll need to think more like Jay Inslee.

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