Issue 12: The Washington Supreme Court Kicks Police Out of Fare Enforcement

May 1, 2023 By Kyle C. Barry

For the Brennan Center’s new State Court ReportI covered the State Supreme Court of Washington’s latest effort to root out racism in the criminal legal system—this time wielding the state constitution to limit police officers’ role in fare enforcement on public transit. In State v. Meredith the court held 5-4 “that armed sheriff’s deputies violated state law when,” without any particular suspicion, “they demanded proof of payment from a bus passenger and then detained and investigated him when he failed to produce it.”

Unlike the U.S. Supreme Court, Washington’s high court acknowledges the reality that constitutional rights, if they are to be effective, must respond to racism in all forms. Not just intentional discrimination against a particular person in a particular case (something that is nearly impossible to prove in all but the most flagrant cases), but also systemic racism and implicit racial bias that infect decisions from arrests through sentencing and manifests in gaping racial disparities

That reality is one reason why “[f]our justices found that deploying armed police to check fares, particularly while cornering people on a moving bus, is a needlessly coercive enforcement method that violates the state constitution,” with a fifth justice joining on statutory grounds. From the State Court Report:

“Our holding is necessary both to preserve the constitutional privacy rights of transit passengers and to mitigate the known, racially disproportionate impact of such fare enforcement practices,” the court concluded. It noted the “coercive effect that a weapon can have in a police encounter, which is known to disproportionately affect Black, Indigenous, Latinx, and Pacific Islanders based on reasonable fear[s] of how an officer with a gun will react to them.”

But this is also a case about how state constitutions and their versions of the Fourth Amendment can curtail needless and dangerous police encounters, ultimately reducing our reliance on policing. 

Any interaction with law enforcement, even those that ostensibly begin over minor issues, can cause lasting trauma and quickly escalate to violence. In 2021, Brooklyn Center police stopped Daunte Wright for expired tags before they shot him dead; in Texas, Sandra Bland’s suspicious death in a county jail began with a traffic stop for failing to signal a lane change. And “crackdowns” on transit fare evasion, the latest trend in broken-windows policing, have led to police tasing and pummeling unarmed people on city subway systems. 

As the Meredith court recognized, such risk of violence is one reason why a growing number of cities are shifting to unarmed civilian enforcement, whether of transit fares, traffic violations, or other minor infractions. If the inherent violence posed by traditional policing is unnecessary, the court said, then perhaps it is also unconstitutional. 

The dissent in Meredith argues that the decision proves too much—that if fare enforcement is out of bounds then all “encounters with law enforcement officers are inherently coercive,” and police officers simply cannot conduct “noninvestigatory government functions consistent with the constitutional rights of the individuals they encounter.” But if a clear-eyed view of the racism and violence endemic to American policing yields this result, it’s not clear why that is wrong as a matter of constitutional law or undesirable as a matter of policy, especially as civilian enforcement and non-law enforcement first responder programs have proven both popular and effective.

In any case, as policymakers consider narrowing the scope of policing and banning the sort of low-level, often pretextual enforcement that proved fatal for Wright and Bland, Meredith lights another path through state constitutional law for lawyers and judges to reach the same result. 

Related: Law professor Robert L. Tsai has this thread on how Washington’s path to death penalty abolition followed the state supreme court rejecting McCleskey v. Kemp and holding that system-wide racial discrimination rendered capital punishment unconstitutional. As Tsai points out, it was a state constitutional ruling with potentially wide implications, setting the framework for “systemic risk” challenges of all kinds—whether based on race, geography, intellectual disability, or other factors that show the arbitrary and discriminatory nature of criminal punishments. 

This broader view of systemic-risk claims, one that would apply when reviewing any potentially excessive sentence, has yet to fully take root in the court’s jurisprudence. But some of the court’s justices have suggested it should. In a 2021 case involving a challenge to Washington’s “persistent offender” three strikes law, for example, Justice Mary Yu wrote that “our elimination of the death penalty based on consideration of racial disproportionality should compel us to ask the same questions here,” and specifically to ask “whether a mandatory life sentence without the possibility of release”–the end result of “three strikes”–“comports with contemporary standards of decency.”

Indiana Chief Justice laments “justice by geography” in drug cases. In the death penalty context, geographic disparities are often traced to the few especially deadly prosecutors who are most likely to bring capital charges. But Indiana Chief Justice Loretta Rush recently argued that “justice by geography” also leads to arbitrarily excessive sentences for people suffering from addiction. 

In a dissent and subsequent interview with local media, Rush said that the court should have reduced the 16-year prison sentence given to Joseph Kellams, who after an accident developed an addiction to pain medication that was later fueled by dealing methamphetamine. In some Indiana counties, specialized “problem-solving courts” allow people with drug charges to receive treatment while remaining in their communities, maintaining employment, and staying connected to family. But that option didn’t exist for Kellams, who instead received the statutory maximum sentence. “This case highlights the disparity among Indiana counties with respect to meaningful sentencing alternatives for those suffering from a substance use disorder,” Rush wrote, and “this disparity perpetuates a justice-by-geography anomaly that disadvantages individuals like Kellams.”

Rush’s dissent also emphasized the Indiana Supreme Court’s “constitutional authority to revise a sentence” based on reduced culpability, and in particular culpability for conduct that is put “in perspective” by a substance use disorder. The court should ensure that statutory maximum penalties are reserved for the “worst offenders,” she wrote, and Kellams is not one of them. 

Decision Roundup

The Alaska Supreme Court ruled last week that partisan gerrymandering violates the state constitution’s equal protection guarantee. In doing so, the court explained that “Alaska’s fair  representation  standard  is  stricter  than  the  federal  standard  because Alaska’s  equal  protection  clause  requires  a  more  demanding  review  than  its  federal analog.”

The Alaska Daily News has more context for the litigation:

The decision follows a contentious recent reapportionment cycle: The Alaska Redistricting Board was twice found by the state’s highest court of having unconstitutionally gerrymandered the state’s political maps by attempting to give solidly Republican Eagle River more political representation with two Senate seats. Following a court order, the board approved an interim map last year for November’s general election that kept Eagle River intact in one Senate district. The court ruled Friday that the redistricting board would have 90 days to appear before a Superior Court judge and show cause why the interim political map should not be used until the 2032 general election. A board meeting hasn’t been scheduled yet to discuss the court’s decision, but that could happen as soon as next week.

The North Carolina Supreme Court, on the other hand, went hard the other way, issuing three anti-voting rights decisions on Friday that Justice Anita Earls said are bound for “the annals of this Court’s darkest moments.” The court’s new GOP majority overturned two of the court’s own decisions decided just last year: It rejected a partisan gerrymandering challenge to a congressional district map that favored Republicans, and allowed the state’s 2018 voter ID law—which the court previously struck down as racially discriminatory—to take effect.   

In a third decision, the court upheld the state’s felony disenfranchisement laws and overturned a superior court ruling that had restored voting rights to over 50,000 people serving probation or parole. Each case was decided 5-2 with the court’s only two Democrats in dissent. 

Each dissent is important and worth reading, but I’ll close here with Justice Earls in the felony disenfranchisement case, observing how the court—which peppered its opinion with references to “the plaintiff-felons”—thoroughly dehumanized anyone with a felony conviction:

the majority interprets the North Carolina Constitution to reduce the humanity of individuals convicted of felony offenses to the point of cruelty: People who are convicted of felony offenses are no longer people, they are felons. The majority believes that, as felons, they are not free even after their sentences are complete, they are merely felons for the rest of their lives. At about the same time that the state constitution was amended to disenfranchise all Blacks, both those who were slaves and those who were free, this Court held that “[t]he power of the master must be absolute to render the submission of the slave perfect.” The Court found that proposition to be inherent in the institution of slavery and professed no power to “chang[e] the relation in which these parts of our people stand to each other.” Today, the Court again consigns a portion of the state’s population to a less than free status, unable to participate in the fundamental exercise of self-governance upon which democracy is based.

And Finally . . . 

Longtime corporate lawyer and former New York Solicitor General Caitlin Halligan has replaced former Chief Judge Janet DiFiore on New York’s highest court (technically, Halligan took Judge Rowan Wilson’s seat, and Wilson was elevated to Chief Judge); is this the start of a new progressive era for the closely-divided court that in recent years has been a good friend to police and prosecutorsMaybe, writes Daniel Nichanian in Bolts Mag