Research Working Group of the Task Force on Race and the Criminal Justice System
87 Wash. L. Rev.  1

Executive Summary

In 1980, of all states, Washington had the highest rate of disproportionate minority representation in its prisons. Today, minority racial and ethnic groups remain disproportionately represented in Washington State’s court, prison, and jail populations, relative to their share of the state’s general population. The fact of racial and ethnic disproportionality in our criminal justice system is indisputable.

Our research focused on trying to answer why these disproportionalities exist. We examined differential commission rates, facially neutral policies with disparate impacts, and bias as possible contributing causes.

We found that the assertion attributed to then-Justice Sanders of the Supreme Court of Washington that “African-Americans are overrepresented in the prison population because they commit a disproportionate number of crimes,” is a gross oversimplification. Studies of particular Washington State criminal justice practices and institutions find that race and ethnicity influence criminal justice outcomes over and above commission rates. Moreover, global assertions about differential crime commission rates are difficult to substantiate. Most crime victims do not report crimes and most criminal offenders are never arrested. We never truly know exact commission rates. Even if arrest rates are used as a proxy for underlying commission rates, 2009 data show that 45% of Washington’s imprisonment disproportionality cannot be accounted for by disproportionality at arrest.

We reviewed research that focused on particular areas of Washington’s criminal justice system and conclude that much of the disproportionality is explained by facially neutral policies that have racially disparate effects. For the areas, agencies, and time periods that were studied, the following disparities were found:

• Youth of color in the juvenile justice system face harsher sentencing outcomes than similarly situated white youth, as well as disparate treatment by probation officers.
• Defendants of color were significantly less likely than similarly situated white defendants to receive sentences that fell below the standard range.
• Among felony drug offenders, black defendants were 62% more likely to be sentenced to prison than similarly situated white defendants.
• With regard to legal financial obligations, similarly situated Latino defendants receive significantly greater legal financial obligations than their white counterparts.
• Disparate treatment exists in the context of pretrial release decisions, which systematically disfavors minority defendants.
• In Seattle, the black arrest rate for delivery of a drug other than marijuana is twenty-one times higher than the white arrest rate for that offense, one of the highest levels of disparity found across the country. Research suggests that this disparity does not primarily reflect different levels of involvement with illicit drugs.
• Minority drivers are more likely to be searched by the Washington State Patrol than white motorists, although the rate at which searches result in seizures is highest for whites.

In all of these areas, facially neutral policies result in disparate treatment of minorities over time.

Implicit and explicit racial bias also contributes to this disproportionality by influencing decision-making within the criminal justice system. Race and racial stereotypes play a role in the judgments and decision-making of human actors within the criminal justice system. The influence of such bias is subtle and often undetectable in any given case, but its effects are significant, cumulative, and observable over time. When policymakers determine policy, when official actors exercise discretion, and when citizens proffer testimony or jury service, bias often plays a role.

To summarize:

• We find the assertion that the overrepresentation of black people in the Washington State prison system is due solely to differential crime commission rates inaccurate.
• We find that facially race-neutral policies that have a disparate impact on people of color contribute significantly to disparities in the criminal justice system.
• We find that racial and ethnic bias distorts decision-making at various stages in the criminal justice system, contributing to disparities.
• We find that race and racial bias 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.

Cara H. Drinan
87 Wash. L. Rev.  51

In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham,including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? This Article endeavors to answer these and other pressing questions that confront judges and legislators today. Part I briefly describes the Graham opinion and surveys what scholars to date have identified as salient aspects of the decision. Part II seeks to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, it argues that: (1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a juvenile non-homicide crime; (2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; (3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and (4) long-term legislative and executive action are necessary in order to make Graham’s promise a reality. Finally, Part III situates Graham in the context of our nation’s ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.

Mary D. Fan
87 Wash. L. Rev.  93

Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police—and the groups threatening to sue the police—are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This Article argues, however, that bargaining in the shadow of law and outside the courthouse may yield smarter and farther-reaching reforms and remedies based on data-driven surveillance than could be achieved through litigation and judicial decision.

This Article argues that the remedies being fashioned “off the books”—that is, outside the doctrine in the case law reporters—offer important insights for the future of police governance and reform. The primary engine of police regulation—the exclusionary rule, which deters rights violations through the remedy of exclusion of improperly obtained evidence—is increasingly eroding and becoming the last resort rather than first instinct. The question becomes: what regulatory and remedial model should arise to fill the vacuum? The Article contends that a promising paradigm being refined by structural reform bargaining is regulation by data-driven surveillance—what this Article dubs “panopticism for police.” Panopticism is efficient internalized regulation by surveillance. The term comes from the metaphor of Jeremy Bentham’s Panopticon, in which prisoners in a state of perfect visibility positioned around an opaque watch tower self-regulate because at any time the guard may be watching. The goal of police panopticism is leveraging data-driven surveillance from multiple institutional vantages. The state of “conscious and permanent visibility” reduces monitoring and remedial costs and triggers self-regulation and institutional culture change.

Robert J. Smith
87 Wash. L. Rev.  139

This Article examines the constitutional nature of the right of a prisoner to receive post-conviction relief based solely on the claim that he is innocent. Part I explores innocence protection as an animating value of constitutional criminal procedure (Part I.A) and describes how developments in the way that crimes are investigated, proved, and re-examined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Part I.B). Part II explores how realigning the importance of innocence protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Part II.A provides an overview of how the U.S. Supreme Court has treated innocence claims to date. First, it considers gateway innocence claims—those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial. It also considers freestanding innocence claims—those in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial. Part II.B articulates a three-tiered framework—conviction relief, execution relief, gateway innocence—for adjudicating such claims.

Duncan Kennedy
87 Wash. L. Rev.  205

African extreme poverty is probably a function (although not solely) of the balkanized post-colonial geopolitics of Africa. It is also probably a function (although not solely) of the income distribution generated by a typically perverse African political economy, through its effect on the allocation of resources to development. As between these two causes, the second is probably much the more important. This reinterpretation puts considerably more of the blame for African poverty on the Western great powers than does the “poverty trap” analytic that is a common contemporary way of thinking about the African economic situation.

M Michelle Dunning
87 Wash. L. Rev.  237

Under Washington State’s historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a “less number.” The Washington Legislature reversed this presumption in 1972. Washington’s civil jury now consists of six persons, unless one of the parties files a specific demand for twelve. It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey’s results and explores what they might mean, positing seven considerations that may explain litigants’ shared preference for traditional juries. I hope that the survey and accompanying exploration will remind us of the “great purposes that gave rise to the jury in the first place.”

Jeremy Gelms
87 Wash. L. Rev.  249

Workplace harassment has traditionally occurred within the “four walls” of the workplace. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee’s work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title VII hostile work environment claim. This Comment argues that to determine whether social media harassment evidence should be considered as part of the totality of the circumstances, courts should examine whether the employer derived a “substantial benefit” from the social media forum. If the employer derived a “substantial benefit” from the social media forum where the harassment occurred, then a court may logically consider the social media platform to be an extension of the employee’s work environment and thus part of the totality of the circumstances. This framework is consistent with the traditional workplace harassment analysis under Title VII, recognizes evolving technology in the modern workplace, and would provide employers with guidance on how to maintain an affirmative defense to harassment allegations in the social media age.

Isham M. Reavis
87 Wash. L. Rev.  281

The Armed Career Criminal Act (ACCA), a federal “three-strikes” recidivist statute, applies a mandatory enhancement to sentences of criminal defendants previously convicted of three qualifying predicate crimes. In Sykes v. United States the U.S. Supreme Court held that a conviction for fleeing police by car counted as a predicate under ACCA’s residual provision for crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.” ACCA’s residual provision has produced a confusing series of U.S. Supreme Court decisions, each applying a different method for determining its scope. Though Sykes borrows methods from each of these prior cases, this Comment argues that only the narrowest of its bases—a finding of risk based on the statutory features of the state crime—controlled its outcome. This basis suffices to explain Sykes’ outcome, and best comports with the Court’s own precedent mandating a categorical approach when interpreting ACCA. Under the categorical approach, a court may consider only the elements of a crime, not the particulars of its commission by an individual defendant, to determine whether it qualifies as a predicate offense under ACCA. Applying this interpretation of Sykes in future cases, only vehicle-flight convictions that either (1) require risk of physical injury to another as an element themselves or (2) share the same punishment as a comparable offense containing this element will qualify under ACCA’s residual provision. However, in Sykes’ wake most federal courts have read Sykes broadly, employing reasoning this Comment argues is inconsistent with faithful application of the categorical approach.

P. Andrew Rorholm Zellers
87 Wash. L. Rev.  331

Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied the U.S. Supreme Court’s Equal Protection analysis to article I, section 12. In the mid-1980s, the Washington State Supreme Court began to question this practice. In 2006, the Court divided on when and how to independently analyze article I, section 12. Justice James Johnson would have the Court independently analyze article I, section 12 in every case; Chief Justice Barbara Madsen would have the Court independently analyze article I, section 12 only where the law grants a privilege to a minority class; and Justice Mary Fairhurst would have the Court independently analyze article I, section 12 only where the state constitution provides greater protection to the right at issue than the Equal Protection Clause.This Comment argues that the Court should abandon the approaches advanced by Chief Justice Madsen and Justice Fairhurst and adopt Justice Johnson’s approach to interpreting and applying article I, section 12. Justice Johnson’s approach is consistent with the clause’s original intent, plain language, and the Court’s early decisions interpreting and applying it. Unlike the other approaches, Justice Johnson’s approach does not put judicial efficiency, finality, and the dignity of Washington courts and the state constitution at risk.