A New Supreme Court Justice Could Swing Criminal Justice Decisions in Washington

What newly-appointed G. Helen Whitener does next will shape whether Washington State moves in a more progressive direction.

Kyle C. Barry   |    April 23, 2020

G. Helen Whitener

This article originally appeared on The Appeal, which hosted The Political Report project.

What G. Helen Whitener does next will shape whether Washington State moves in a more progressive direction.

Governor Jay Inslee made his third appointment to the Washington Supreme Court last week, elevating G. Helen Whitener, a judge on the Pierce County Superior Court. 

In joining a supreme court that has recently driven major criminal justice reform, and that is generally progressive but often divided, Whitener could determine how boldly it proceeds in years ahead. 

Whitener replaces Justice Charles Wiggins, who retired last month. To keep the seat, she has to run in the November general election and then again in 2022, when Wiggins’s term would have ended. Three other justices are up for re-election this fall as well.

Her appointment has drawn attention for boosting the representation of marginalized groups. She is a Black, gay, and disabled immigrant from Trinidad. With her appointment, Washington’s Supreme Court is the most diverse appellate court in the country.

Whitener also adds range in terms of professional experience. She had been a trial court judge since 2015, and before that served as both a prosecutor and a criminal defense lawyer, including as a public defender in Pierce County’s Department of Assigned Counsel. The judiciary, including both state and federal courts, is littered with former prosecutors. Former defense lawyers, and public defenders in particular, are significantly underrepresented.

Mary Kay High, the chief deputy in that Pierce County office, noted that criminal defense is “not the typical path to the bench.” She believes Whitener’s diverse professional background will play a crucial role on a court with justices regarded as liberal but fiercely independent. 

As a superior court judge who previously represented people harmed by prosecutions, Whitener recognized how the criminal legal system’s punitive aspects can be unjust and counterproductive, setting people up to fail and remain trapped in the system. 

Last year, for instance, she said the fines and fees attached to criminal convictions “have accumulated at a ridiculous rate.” She stressed that judges have broad discretion over most fines and fees and should only impose such obligations when people can afford to pay, taking into account a person’s income and other financial obligations. “We can’t on one side say we’re helping people who are leaving our prison system, and then burden them with all of these fines,” she said.

In that same interview, she also advocated against incarcerating youth offenders for so-called status offenses, which only apply to children — like skipping school, running away from home, and underage drinking — echoing state advocates’ calls to treat kids like kids. She added,  “these children are experiencing trauma of some sort, and incarceration is not the answer for dealing with that situation.” Washington, which had an exceptionally punitive system with regard to status offense detentions, adopted a law restricting them in 2019. 

Whitener brings this sensibility to a court that has been repeatedly at the forefront of criminal justice reform over the last decade—though often without unanimity, and with room to go further, creating opportunity for a new justice to push the court in an even more progressive direction. 

It’s an “interesting time on the Supreme Court,” High said. “There are some close splits and we can’t predict votes. The more voices with diverse backgrounds, the more thorough the deliberations and the better the decisions.”

In 2018, the court unanimously struck down Washington’s death penalty statute as unconstitutionally “cruel.” But it did so because the punishment had been applied in an arbitrary and racially biased way, not because it is inherently unconstitutional, giving lawmakers the chance to revive capital punishment in the future. “We leave open the possibility that the Legislature may enact a ‘carefully drafted statute,’” the court’s controlling opinion said. “But it cannot create a system that offends constitutional rights.” 

Other recent decisions, including those involving punishments for youth offenders, racism in jury selection, and how to reduce arrests and incarceration in response COVID-19, show how some of the court’s landmark rulings remain fragile, and where reform advocates have space to push the court further. 

In 2018, the court burnished its progressive reputation when it prohibited sentencing people under age 18 to life without the possibility of parole or early release. But that decision was 5-4, with Justice Wiggins, Whitener’s predecessor, in the narrow majority. (One of the dissenters, Justice Mary Fairhurst, was replaced this year by Justice Raquel Montoya-Lewis, whom Inslee appointed in January). 

Also in 2018, the court adopted a new rule — the first of its kind in the country — designed to root out “implicit, institutional, and unconscious” racial and ethnic bias in jury selection. Although the U.S. Supreme Court has prohibited intentional race discrimination in selecting juries, that rule is nearly impossible to enforce, with discrimination too often smuggled in through “race neutral” explanations that play on racial stereotypes or disproportionately apply to nonwhite communities. Prosecutors can still follow that prohibition while constructing all-white juries by excluding people who, for example, live in high-crime neighborhoods, or believe that police officers racially profile, or know people who have been arrested. 

Under the rule adopted by the Washington Supreme Court, these explanations are presumptively invalid, and potential jurors cannot be struck if an “objective observer” could view race or ethnicity as a factor in the decision to remove them. 

But here, too, the court fell short of the bolder vision of some of its members. 

In a 2013 case, the  justices agreed “that racial discrimination remains rampant in jury selection,” but not on what to do about it. At the time, Justice Steven Gonzalez, who is still on the court, wanted to go further than what the court eventually adopted in 2018. Gonzalez said prosecutors and defense lawyers should never be allowed to exclude jurors without a legal justification to do so, a proposal that mirrors what U.S. Supreme Court Justice Thurgood Marshall wrote decades ago, and that would prohibit entirely “peremptory challenges” — which allow lawyers to strike jurors without cause. Their use “contributes to the historical and ongoing underrepresentation of minority groups on juries, Gonzalez wrote. 

On March 20, the court divided 5-4 over how far it would go to prevent unnecessary arrests and release people from jail to prevent the spread of COVID-19. The majority ordered judges not to issue bench warrants when someone fails to appear (absent a determination that there is an “immediate” public safety threat). But that left courts free to issue warrants for other reasons, including for people who allegedly violate conditions of release —  conduct ranging from failing a drug test to missing curfew to traveling without permission. The dissent urged the court to go further and include those circumstances in its warrant ban. 

Wiggins, the retiring justice, sided with the majority and its narrower ruling in this case; the four dissenting justices were the court’s four newest members.   

Along with her potential impact on criminal justice issues, Whitener adds to the court’s unprecedented diversity, which has been a clear priority for Inslee, the state’s Democratic governor since 2013. Montoya-Lewis, whom Inslee appointed earlier this year, is a Jewish Native American jurist who previously served on tribal courts. Justice Mary Yu, whom he appointed in 2014, is an Asian-American, Latinx, and lesbian jurist. With Whitener’s addition, the court has seven women and four non-white justices among its 9 members. 

Last year, a Brennan Center for Justice report found that most states’ high courts are “overwhelmingly white and male,” including 24 all-white state supreme courts, and 13 states that have “never seated a person of color as a justice.” 

Whitener, who also serves as co-chair of the Washington State Minority and Justice Commission, has often explained that a diverse judiciary — one that fully reflects the population it serves — is essential to maintaining trust and confidence in the rule of law.  

“I believe as a marginalized individual, being a Black, gay, female, immigrant, disabled judge, that my perspective is a little different,” she said in February. “So I try to make sure that everyone that comes into this courtroom feels welcome, feels safe, and feels like they’ll get a fair hearing.”