What You’ll Read:
- Vacancies & Appointments: A leading voice on constitutional rights to retire from WA supreme court; PLUS: new vacancies on the WV and NE supreme courts; NH’s newest justice worries environmental advocates
- Sentencing: CA Justices Liu & Evans make the case against extreme sentences for young people; NH supreme court to decide if the state’s lone death sentence is unconstitutional
- Immigration: CT chief justice bans ICE from courthouses; WI supreme court to decide legality of “ICE detainers”
- Policing: MN supreme court limits police powers to stop & frisk
Vacancies & Appointments
“We Should Not Be Satisfied With The Status Quo”: Washington Supreme Court Justice Mary Yu, A Leading Voice On Constitutional Rights Against Extreme Punishment, Announces Retirement
Justice Mary Yu, a member of the Washington State Supreme Court for over a decade, will retire on December 31. When she joined in 2014, Yu was the court’s first Asian, the first Latina, and the first LGBTQ member. She also became a pioneer in state constitutional law, emerging as a leading voice on how state constitutions—independent of whatever the U.S. Supreme Court says about federal law—provide stronger civil rights against the excesses and abuses of our criminal legal systems. Yu helped put the Washington Supreme Court at the forefront of a legal movement to embrace state constitutionalism, and her dissents and concurring opinions leave a guide for how the court, and other state high courts around the country, should go further.
When deciding what is “cruel” punishment under Washington’s constitution (the federal 8th Amendment bars “cruel and unusual” punishment), Yu embraced the relevance of scientific and other empirical evidence about how severe criminal punishments work in practice—whether they are imposed on the most culpable, for example, or whether they have any deterrent value. She also championed rehabilitation and the potential for people to grow and change (“removing the possibility of redemption is the definition of cruel,” she wrote in 2019), and understood that cruelty and racial discrimination are intertwined—that discriminatory punishment, whether intentionally so or as the product of longstanding systemic discrimination—is cruel punishment.
In 2018, Yu joined the opinion that struck down the state’s death penalty based on statistical evidence of racial disparities. Since “the death penalty is imposed in an arbitrary and racially biased manner,” the court wrote in State v. Gregory, “it logically follows that the death penalty fails to serve any legitimate penological goals.” Decisions restricting life without the possibility of parole (more aptly known as “death by incarceration”) soon followed. A week after Gregory, the court held in State v. Bassett that all LWOP sentences for youth are cruel punishment given the brain science showing that younger people have both reduced culpability and a greater capacity to change. The court extended this ruling in 2021, first barring mandatory LWOP sentences for anyone under age 21 and then, in State v. Haag, applying Bassett’s youth LWOP ban to terms of years so long (in this case, 46 years) that they deprive children of a chance to ever meaningfully re-enter society. In all these cases, the court embraced rights that go beyond 8th Amendment protections.
A year later, though, the court retreated. In State v. Anderson, it narrowed Haag’s limits on de facto LWOP, saying they apply only to youth whose crimes “reflect youthful immaturity, impetuosity, or failure to appreciate risks and consequences.” Yu dissented. She found no principled reason to exclude some children from what are inherently youthful characteristics, and noted that the main difference between Haag and Anderson was the race of each person involved: “There can be no doubt that adultification is real and can lead to harsher sentences for children of color if care is not taken to consciously avoid biased outcomes,” she wrote. “The majority today fails to take such care, leading to a harsh result for a former juvenile offender who is Black, which is irreconcilable with more lenient results obtained by former juvenile offenders who are white.”
In what may turn out to be her most significant individual contributions, Yu also pushed the court to question death by incarceration for people of any age, particularly those sentenced under the state’s harsh three-strikes “persistent offender” law. In 2019, Yu cast a rare regressive vote that allowed prior youth convictions to count as “strikes” for sentencing purposes. But she wrote in a concurrence of her “growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender.” She went on:
“We should not be satisfied with the status quo; permanent incarceration has neither reduced crime nor increased confidence in our criminal justice system. The principles set forth in Gregory compel us to ask the same questions about a life sentence without the possibility of parole. Is it fairly applied? Is there a disproportionate impact on minority populations? Are there state constitutional limitations to such a sentence? I dare say that these questions are not just academic. They also reflect our values and beliefs about punishment and our criminal justice system. We should join the national movement favoring release upon a showing of rehabilitation and inject into our sentencing practices the exercise of mercy, compassion, and the fact that we know not a person’s capacity to change.”
Democratic Gov. Bob Ferguson will appoint a new interim justice and the 2026 general election will include a race to complete the remainder of Justice Yu’s term, which expires on December 31, 2028. [Washington State Standard]
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- Despite objections from environmental advocates and concerns about judicial independence, New Hampshire’s Executive Council confirmed corporate lawyer Bryan Gould to the state supreme court. Gould, who also represented conservative political leaders, including Republican Gov. Kelly Ayotte, pledged to recuse himself from any case involving his longtime client Casella Waste Systems, which is currently appealing the state’s denial of a landfill permit. New Hampshire’s five-member high court consists entirely of Republican appointees.
- West Virginia State Supreme Court Justice Tim Armstead, a previous Republican speaker of the state House of Delegates, died in August. Applications to fill this seat on an interim basis are due October 6.
- Nebraska State Supreme Court Justice Lindsey Miller-Lerman, who represents Douglas County (each seat on the court has its own district and nominating commission) will retire on October 31. Applications for this Omaha-based seat are due this Thursday, September 25.
Sentencing
- California Justices “Liu and Evans drive surge in Supreme Court dissents over criminal review denials.” The Daily Journal reports that Justices Goodwin Liu and Kelli Evans have repeatedly dissented from the courts’ denial to review cases, raising “objections … over the length of sentences for younger [people],” and “argu[ing] that minority prospective jurors have been improperly excluded.” [More from Behind The Bench: Two California Justices Fight Extreme Punishment]
- Is New Hampshire’s lone death sentence cruel or unusual? In 2019, the New Hampshire legislature abolished the death penalty, but did not apply the change retroactively to the one person already on the state’s death row. The state supreme court last week agreed to decide whether, in light of this prospective reform, Michael Addison’s death sentence now violates the state constitution’s ban on “cruel or unusual” punishment. In 2015, the Connecticut Supreme Court struck down the state’s death penalty on similar grounds, finding that “following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.” New Hampshire has not executed anyone since 1939.
Immigration
- Connecticut Supreme Court Chief Justice Raheem L. Mullins announced a new state policy that prohibits warrantless immigration enforcement inside courthouses and requires agents to unmask. “The policy I issue today is directed at keeping our courthouses safe,” Mullins said. “Judges, staff, litigants, members of the public—they all must be able to conduct their business in our courthouses without fear of disruption.” [New Haven Register]
- The ACLU of Wisconsin last week filed a petition directly in the state supreme court challenging county sheriffs’ practice of arresting and jailing people based solely on requests from ICE. Wisconsin law “not only provides no state law basis for civil immigration arrests,” the petition says, “it expressly prohibits them.” Yet this year ICE has sent more than 700 requests to local jails across Wisconsin, asking them to hold someone for an additional 48 hours after that person was set to be released—and most sheriffs have chosen to comply. [Wisconsin Public Radio]
Policing
Minnesota Supreme Court Limits Police Power To Frisk. While the U.S. Supreme Court allows police officers to indiscriminately stop people to run warrant checks, and to stop and detain people for immigration enforcement based in part on racial profiling, the Minnesota Supreme Court last month issued a ruling under both the federal and state constitutions that carefully circumscribes police power to stop and frisk. In In re Welfare of CTB, a unanimous court held that mere proximity to a suspect in a shooting incident does not create the “reasonable and articulable suspicion” required to authorize an officer pat down under Terry v. Ohio. As one defense lawyer wrote, “for Minnesotans, this means that your constitutional rights protecting you from invalid searches do not disappear simply because you are in the wrong place at the wrong time.” [Minnesota Lawyer | Full Opinion]