July 2, 2022

‘We’re not colorblind’: Two years after George Floyd, WA Supreme Court tries to chart a different path on race

OLYMPIA — Two years ago, as protests spurred by the murder of George Floyd gripped the nation, two Washington state Supreme Court justices bumped into each other in the parking lot.

Then-Chief Justice Debra Stephens was walking toward her car. Justice Mary Yu was driving out. She rolled down her window.

“All of us who work in the system felt a sense of heaviness about what was going on,” Yu recalled. Stephens had been thinking the court should say something. They talked about it in the parking lot. It was very casual.

“There was a level of spontaneity to it,” Yu said. “Everybody was feeling something, we can’t just sit here and be silent.”

Yu went home, wrote a draft and emailed it to her colleagues. They hashed out some edits over Zoom.

The end result, published June 4, 2020, was a letter signed by all nine members of the state Supreme Court.

The state Supreme Court, which normally only answers the legal questions presented to it, went out of its way to call on lawyers, judges and courts across the state to do more to address longstanding institutional racism.

“As judges, we must recognize the role we have played in devaluing black lives,” the justices wrote. “The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will.”

Just last week the court ruled that race, and law enforcement’s history of racial bias, must be taken into account when determining whether police stops and seizures are legal.

In the two years since their letter, the court has made efforts large and small, symbolic and concrete, trying to move toward a more just legal system. The court has overturned decades-old hateful precedents, with little public notice. It has thrown out laws, vacating tens of thousands of criminal convictions. It has ordered pay raises to thousands of immigrant farmworkers. In many cases, it has moved faster than both the state Legislature and the nation in barring practices that it considered unjust or racially discriminatory.

And the court has seen lawyers cite its own letter back to it in legal briefs, arguing for the court to go further in heeding its own clarion call.

Bias found across legal system

A report from Washington’s three law schools, issued last fall, found racial disparities at every level of the criminal legal system, from who gets stopped and searched by police, to who is arrested and convicted, to the length of sentences that are handed out.

The report did show some areas of improvement. The rate of Black people incarcerated in Washington fell by nearly half from 2005 to 2020, from about 2.5% of the Black population to about 1.3%. But a Black person in Washington is still 4.7 times more likely to be incarcerated than a white person.

“Race and racial bias continue to matter in ways that are not fair, that do not advance legitimate public safety objectives, that produce disparities in the criminal justice system, and that undermine public confidence in our legal system,” the report said.

Chief Justice Steven González said the court is not going out of its way to write about institutional racism, but rather is approaching cases cognizant of the role race has played and continues to play in the legal system and in America.

“We are not intentionally saying we’re going to write about race now,” González said. “We’re not colorblind. We are not pretending that race doesn’t exist. I don’t believe that ignoring it is the right approach. I don’t think it’s going to make it better. I don’t think it’s an equitable way.

“So we’re not going to turn a blind eye and ignore these things, we’re going to address them head on.”

A ‘longer trajectory’

The Washington state Supreme Court may be the most diverse high court in the country. Among the nine justices there is only one white man. There are seven women, four people of color, three Jewish justices, two lesbians, the court’s first Indigenous justice and a Black immigrant from Trinidad and Tobago.

Robert Chang, a law professor and director of the Korematsu Center for Law and Equality at Seattle University, pointed to the “longer trajectory of the court,” in citing significant changes toward racial equity, even if they happened before the court’s 2020 letter.

Justices cite the court’s decades-old commissions on gender justice, racial minorities and providing interpreters. They point to a court-created task force on race and justice from 2010, in the wake of comments from two former justices who said Black people “have a crime problem.”

“The court didn’t just all of a sudden change the way it does business,” González said. “It’s part of the fabric of what we do.”

The state Supreme Court in 2018 declared the death penalty unconstitutional, because, the court said, it was applied in “an arbitrary and racially biased manner.” Since then, the state Legislature has repeatedly sought to officially wipe the death penalty law from the books. It has not done so.

Also in 2018, the court made an unprecedented change to jury selection rules, putting Washington at the forefront of a national push for reform. For years, prosecutors and defense attorneys have been able to exclude a certain number of potential jurors for virtually any reason. They couldn’t exclude jurors explicitly because of race, but if a prosecutor moved to exclude a Black juror it was virtually impossible to prove that it was because of race.

In Washington, jurors were excluded for nebulous reasons like bad body language or a problematic attitude.

In 2018, the state Supreme Court changed the rules to ban any juror challenges based on “implicit, institutional, and unconscious” racial bias. If an “objective observer” could see race as a factor, the juror challenge should not be allowed.

At least 13 other states have since made similar changes or are considering them.

And on Thursday, the court used its standard on jury selection to apply to police seizures, ruling that an objective observer considering the legality of a seizure must be aware of law enforcement’s history of bias and discrimination against people of color.

“Today, we formally recognize what has always been true: in interactions with law enforcement, race and ethnicity matter,” Yu wrote for the unanimous court.

Restoring ‘A little bit of faith’

Jack Fiander had been appealing for racial justice in the legal system long before the court’s 2020 call to arms.

Fiander, a member of the Yakama Nation and self-described “small town country lawyer” who works out of the trunk of his car, started appealing to the courts to get unjust precedents overturned two decades ago.

He began with the case of Jim Wallahee, a Yakama tribal member who was convicted of hunting crimes in 1924. Wallahee appealed his conviction, citing the 1855 treaties that allowed tribal members to hunt on open and unclaimed land. But the state Supreme Court, in 1927, ruled that tribes in Washington forfeited their treaty rights after Washington became a state in 1889.

When Fiander tried to have the conviction overturned, a Kittitas County judge told him he didn’t have the authority to do anything.

In 2014, the Legislature passed a law explicitly giving judges the power to overturn old Indian fishing and hunting convictions that contradicted treaty agreements. So, in 2015, Fiander tried again.

He helped vacate a 1920 conviction of a Yakama tribal member who was fishing at his family’s traditional site near the Prosser Dam. But a companion case proved trickier. It had gone to the state Supreme Court.

In 1916, the court ruled that the fishing conviction of Alec Towessnute should be upheld. The decision referred to the Yakama as “savage,” said Native people were “a dangerous child” who had been allowed to “squander vast areas of fertile land,” and it rejected the premise of Indian sovereignty.

Fiander said he felt ill when he first read the decision.

But a century later, following years of appeal from Fiander, who’d gotten the state attorney general on his side, the state Supreme Court cited its own letter in overturning the case.

“We cannot forget our own history, and we cannot change it,” the court wrote in 2020. “We can, however, forge a new path forward, committing to justice as we do so.”

A few months later, the court used a footnote in a case about a Tim Eyman car tab initiative as an opportunity to overturn a 60-year-old precedent. The old decision included an impassioned defense of “the right of segregation” as it upheld a Seattle cemetery’s right to bar a Black family from burying their young son.

The connection between the Eyman case and the cemetery case was clear only to legal observers: Both cases were about laws that allegedly concerned two subjects.

Chief Justice González said he has a list of “the worst cases ever decided in Washington” and was just waiting for an appropriate opportunity to address the cemetery case.

“This was a time for us to say they got the law wrong,” he said. “But in addition to that, the language that they used in getting there was really offensive. And we need to point out that we disavow that language.”

And earlier this year, the court again tried to “forge a new path forward” without forgetting history. The court ruled that obsolete racist covenants in property deeds — intended to bar people of color from buying a house — can be struck from the chain of title but must remain elsewhere in the public record.

“Although the covenants are morally repugnant, they are part of a documented history of disenfranchisement of a people,” the unanimous court wrote. “It is our history.”

In all these cases, the court’s actions had little practical effect — many of the principles were long deceased and the racist covenants are null and unenforceable. In the cemetery case, some surviving family members saw little value in the court’s action and were offended that the court didn’t even contact them.

But Fiander sees the decisions differently. They’re not just symbolic. Each move to right a past wrong, he said, boosts the trust of Native people for a legal system that has never treated them fairly.

The first two people he shared the Towessnute decision with openly wept.

“To this day tribal people don’t have a great deal of faith in the state judiciary; they just assume we will be convicted of something, or our children will be taken away,” Fiander said. “When they take these steps, each time it restores a little bit of faith of the tribal people in the state court system.”

Concrete changes

The court has also issued a number of rulings with real-world, concrete impact.

Many of those decisions do not directly address race. But, in making significant changes to a legal system that has historically treated people of color more harshly, they inevitably have had broad racial impact.

In a landmark 2021 decision, a split 5-4 state Supreme Court struck down Washington’s decades-old drug possession law as unconstitutional. The court ruled that making drug possession a felony, even if a person didn’t realize they were carrying drugs, violated due process clauses of the state and federal constitutions.

The Blake decision, as it’s been called, was not based on issues of race, but the court noted in its decision that the drug law it was throwing out, had “hit young men of color especially hard.”

The impacts have been profound. The day of the court’s decision, police stopped making arrests for drug possession. Courts across the state are sifting through and throwing out as many as 150,000 old drug possession convictions.

The Legislature responded within weeks, passing a law to make drug possession a misdemeanor.

In 2020, a split Supreme Court ruled 5-4 in favor of two Yakima County farmworkers, finding that state laws that made dairy workers ineligible for overtime pay were unconstitutional.

Like in Blake, the court’s decision was not based on race. But it had the practical impact of raising the pay of thousands of Latino farmworkers.

In a concurring opinion, González made the subtext explicit, writing that 99% of Washington’s farmworkers are Latino, that they have been “subjugated to second-class worker status” and that “it is no coincidence the law continues to disfavor them.”

A few months later, the Legislature again followed the court. They passed a law extending the overtime protections to all farmworkers, not just dairy workers.

President Joe Biden congratulated the state Legislature and called for a similar federal law to guarantee overtime pay for farmworkers.

González characterized the back and forth with the Legislature as a conversation.

“Conversation is a give and take,” he said. “And the conversations we have, they often never end because they’re about what the Constitution means in the context of a new law or changes in society.”

Citing the letter

Appellate attorneys have cited the court’s 2020 letter on racial injustice in legal briefs to the state Supreme Court, and continue to, in cases that will help define the court’s ongoing path on race.

The Supreme Court is currently considering a case, State v. Bagby, in which a Black defendant alleges the prosecutor injected racial stereotypes into the trial by repeatedly using the word “nationality” to distinguish the defendant from white witnesses. The defendant is from California.

“The government subtly employed bias at Mr. Bagby’s trial,” the appellate attorneys wrote, citing the court’s own letter back to it. “The government continuously inserted race into his trial to prove his identity.”

Kim Ambrose, teaching professor and director of the Race and Justice Clinic at the University of Washington School of Law, said the justices almost surely knew their letter would be used in future arguments before them.

“It was really a big deal, there’s a lot of appellate lawyers who have cited that in our briefs, like ‘by the way, remember that letter?’” Ambrose said. “I think they invited that. And good for them.”

In another currently pending case, State v. Butler, a Black defendant, accused of assaulting two transit security officers, was identified in court by a white eyewitness. The defendant argues that the trial court erred by not instructing the jury that cross-racial identifications (IDs of a suspect by a witness of another race) can be notoriously unreliable.

The defense, again, cited the court’s own letter.

“Scientific research confirms that people have difficulty making cross-racial identifications,” the Washington Innocence Project wrote in an amicus brief. “Requiring a cross-race identification instruction would allow the Court to go toward heeding its call for actors within the criminal legal system to address and remedy the impact of racism.”

Another pending case, State v. Zamora, strikes similar themes of potential racial stereotypes in the courtroom. In that case, the defendant charges that prosecutors asked potential jurors about their views on border security and their fears of becoming crime victims of undocumented immigrants, in a trial where the defendant had a Hispanic name.

“The repeated questioning based on racial bias and stereotypes violated and undermined” the defendant’s right to an impartial jury, the lawyers wrote.

Stephens said that it’s appropriate for lawyers to cite the justices’ own words back to them, that the letter and the court’s decisions have helped pull arguments away from legal technicalities and toward broader understandings of the law’s impact.

“Too often lawyers think everything that’s not the legal theory is noise,” she said. “I think we have appropriately demonstrated, through those decisions, that the real world impacts of the law and our decisions matter.”