April 21, 2001

The Hon. Richard B. Sanders

Thank you for inviting me back once again. As a nonpartisan office holder I have spoken to the Republican and Democrat conventions as well. However, the message is always the same no matter the audience. I’m here to talk about ideas, especially the ideas of the Founders, which I think are perhaps more important today than when originally spoken in history.

As you know I was first elected to the Washington Supreme Court in 1995, and reelected to a full six-year term in 1998. My term will therefore expire in 2004, when I will scramble to keep my government job for another six years.

There are nine of us on the Supreme Court. Our terms are staggered. This means there are three positions up for election every two years. Last year we elected two newcomers to the court, Justices Chambers and Owens. In 2002 Justices Bridge and Johnson will run for reelection and Justice Smith will retire. That means there will be at least one spirited contest for that open seat and you owe it to yourselves to be informed and active in that election.

Today’s topic is "The Criminal Justice System as a Bulwark of Liberty." Last year I talked about our state and federal constitution in general terms. That speech is available at my website on

I suggest we begin by looking at our justice system in a larger context—what is government for, and how is it structured to accomplish that purpose?

Last year I pointed out it that it all began with the Declaration of Independence. The Declaration states in so many words that the purpose of government is secure our rights—not violate them.

Last year we talked about the consent of the governed—not a blank check consent—but consent limited by the duties and responsibilities we delegate to government in that written contract we call our Constitution.

We talked about how limited government is our first guarantee of liberty and the separation of powers between the executive, legislative, and judicial branches helps to ensure our liberty by playing off one governmental power against another.

Today I will focus on the criminal law and talk about its purpose and its future. My thesis is the criminal law is there not only to separate the guilty from the innocent but also—most importantly—to protect our liberty.

When we study criminal law in law school, or decide a criminal case in the Supreme Court, we are largely talking about process and procedure. Facts are determined at trial. The elements of a crime are never a matter of much discussion in the courts because the legislature generally takes it upon itself to pass criminal statutes, define the elements of a crime, and expects the court to apply those statutes against individuals. This is more or less the traditional role of the legislature. However in modern times the legislature has also taken a very active role in doing other things which traditionally were reserved for the courts.

For example, in the beginning, the legislature set maximum prison sentences with the understanding the courts would impose the actual sentence within that maximum so the sentence would fit not only the crime but the individual criminal as well. But now the legislature, and the people through the initiative process, have taken on a much bigger role at the expense of the judiciary. Not only has the legislature defined many more crimes, but it has taken it upon itself to legislate procedures and set not only maximum but minimum sentences as well.

This legislative activism has been promoted to achieve greater social control over our fellow citizens, eliminate some procedural rights of those accused of a crime, and impose sentences by legislative fiat at the expense of judicial discretion. This, we are told, is to "get tough on crime," "get the softy judges out of the equation," and "promote uniformity."

At the same time the legislature has actively expanded the scope of the criminal law by burdening the system with many more crimes, it has refused to fund the costs caused by that expansion. Presently our prisons are running at 150 percent capacity. Recently enacted mandatory sentencing laws will push it way above that, with few new prisons coming on line. At the same time the legislature has actively involved itself in making up more crimes and putting more people on trial, it has refused to increase payments to jurors beyond $10 a day, making it relatively impossible for working members of the private sector to participate as jurors. Thus, jury pools are skewed in favor of the government, large private corporations, retired persons, and welfare recipients. This session the legislature has eliminated prison law libraries and, of course, has continued to be most miserly in the compensation of appointed defense lawyers and court personnel.

As you might guess, I think we have a problem here.

But whatever the problems we still have the best criminal justice system in the world and one that is remarkably resilient to these adverse forces, mainly due to the persistence of an independent judiciary. In sum, I believe the criminal law is still a bulwark to protect us not only from crime, but from government which would destroy our liberties in the pursuit of that crime. But we can’t take it for granted it will always be that way.

Let us take that last point first: The criminal law as a protector of liberty.

If you read the Bill of Rights of the United States Constitution and count the words you may be surprised to find that a majority of them deal with criminal investigation, process, and punishment.

The Fourth Amendment protects us from unreasonable and warrantless searches and seizures and, even more importantly, defines the limited circumstances under which a search warrant may be issued.

The Fifth Amendment requires an indictment and prohibits double jeopardy—that is trying one for the same crime twice, or punishing one twice for the same crime—and it also guarantees our right against self-incrimination.

The Sixth Amendment ensures a speedy trial, proper notice of the accusation, confrontation of witnesses, and assistance of counsel.

The Seventh Amendment reserves the right to trial by jury.

And the Eighth Amendment prohibits excessive fines and cruel punishments.

Why do we have these rights? Is it to catch, and convict, and punish the guilty? Or is it something quite different? I submit if the Founders were only interested in identifying and punishing the guilty, we would not restrict police searches with burdensome warrant requirements and certainly we would encourage, not discourage, police to exact confessions in coercive interrogations.

If we only wanted to find and punish the guilty, we would put O.J. on trial once again—and this time we would use the photos of his Italian Bruno Magli shoes—photos which were not located until after his criminal trial ended in acquittal.

And if we really wanted to set an example to discourage crime, we would use the marvels of modern technology to devise punishments so unimaginably painful and prolonged that all of us would live a life of terror that we’d be convicted of a crime and then subjected to that terrible punishment.

No, I submit, the Founders were not primarily interested in finding and punishing the guilty, they were interested in protecting us from the awesome power of government, a power they thought most apt to be abused against individuals in the context of criminal investigation, prosecution, and punishment.

So what is the reason for our criminal justice system? Privacy is the reason, individual integrity is the reason, human decency is the reason, mercy is the reason, freedom is the reason. We had better not forget it, or we’ll lose it.

How are we doing?

First, I think legislative activism has gone a long way to weaken the judiciary and judicial acquiescence has gone a long way to let it happen.

Every time a traditional judicial function is coopted by the legislature, the judicial power is compromised by that extent—and then we have that much less of a check on the executive and legislative branches from that third branch, the judiciary. It weakens the separation of powers, and thus, defeats that institutional protection for our liberty.

For example, criminal sentencing has been taken over by the legislature. No longer can the sentence fit the individual criminal. Now it is often imposed based solely upon the category of crime and criminal history factors which can be numerically reduced to a matrix. Aleksandr I. Solzhenitsyn criticized a similar system used in the Soviet Union in his book, The Gulag Archipelago. He said in the Communist system the punishment fits the crime but praised the West because here it is to fit the individual criminal as well.

Our three strikes law sentences an individual to life without possibility of parole for conduct as little as stealing a loaf of bread and pushing the clerk out of the way. Recall in Les Miserables the sentence was 19 years. By comparison, they were soft on crime. It has now been amended to two strikes for sex offenders. And we have mandatory minimum sentencing laws for possession of fire arms, as well.

In terms of process and procedure, the legislature has undermined traditional rules of evidence by allowing child hearsay. This means allowing unsworn, out-of-court declarations into evidence often at the expense of the right of cross examination. One decision I wrote based on this statute upheld the criminal conviction of a dad who allegedly molested his daughter based upon a hearsay declaration of the daughter to a social worker even when there was no other evidence of the crime and the daughter later recanted, under oath, in open court. See State v. Clark, 139 Wn.2d 152, 985 P.2d 377 (1999). The so-called rape shield laws restrict admission of relevant evidence about the accuser. The rules of evidence were traditionally the prerogative of the courts. But less so now.

Both our state and federal constitutions make special mention of the writ of habeas corpus. That is the post-conviction remedy called The Great Writ of Antiquity, because it dates from the Magna Carta, and is designed to guard against unlawful incarceration. Newly discovered evidence—DNA for example—or ineffective counsel are usual grounds asserted in such a writ. Yet the legislature has restricted the availability of the writ to a petition filed one year after final conviction absent narrowly defined exceptions. And additional procedural bars are raised against successive writs, even where meritorious. Ordinarily counsel are not appointed to assist prisoners with writ applications. They are expected to do it on their own from the prison law library. But now the legislature has eliminated prison law libraries.

In one such case argued before me and my colleagues a man was sent to a mental hospital for the rest of his life based upon his plea of not guilty by reason of insanity to a first degree assault charge. The prosecution admitted that his constitutional rights were violated because his trial counsel neglected to advise him that such a plea would potentially subject him to life imprisoned in a mental hospital as opposed to the usual seven or eight years had he been convicted of the crime.

Seventeen years later the man petitioned for a new trial, but his writ was denied on a five to four vote because he did not petition within one year of the enactment of the legislative time bar, notwithstanding he had received no notice of the change in the law and was presumably too crazy to do anything about it if he had known. See In re Matter of Well, 133 Wn.2d 433, 946 P.2d 750 (1997).

These are significant problems, but they pale in comparison to simply redefining criminal punishment as civil rather than criminal. It began by calling a traffic ticket a civil infraction rather than a crime. By doing this, the right of confrontation was eliminated and the state didn’t need to prove its case beyond a reasonable doubt. Now the traffic judge may also be the prosecutor as well.

Then came so-called "civil" forfeiture. A man may lose his car, his bank account, his home in one proceeding and then be subject to a second proceeding wherein he is charged with a crime for the same conduct which led to the prior forfeiture of his property. But the courts have said the prohibition against double jeopardy does not apply because we are told stripping a man of his assets is not a criminal punishment, and is not punitive, and is therefore beyond the protection of the double jeopardy clause which bars only successive criminal prosecutions. Nor do we say so-called civil forfeitures can be cruel and unusual punishment—they are not now considered criminal punishments at all—they are said to be remedial.

One of our most popular laws, and one of my most unpopular views, concerns the so-called sex predator act. That statute says a man may be incarcerated civilly, indefinitely, maybe forever, if it is determined he is likely to commit a sex crime as a result of a mental abnormality or personality defect. Having attended your function last evening, I must admit having formed a well founded suspicion about many of the personalities in this audience, including my own.

In practice, a man who is within one or two days of completing a long prison sentence is served with this sex predator petition. He is then taken to a special commitment center which is more restrictive and harsher than the prison he just left. But it is said he is confined "civilly," like he is sick, not like he is criminal, although we all know that is the real reason he’s getting locked up. But by calling this "civil" rather than "criminal," all the constitutional guarantees benefiting those accused of a crime simply do not apply. Double jeopardy doesn’t apply. Ex post facto prohibitions don’t apply. Cruel punishment doesn’t apply—remember, he isn’t being "punished," just locked up.

We are taught in law school that there are two elements to be proved to convict one of any crime: actus reus and mens rea. This means the prosecution must prove a criminal act and a criminal mental state. However under the sex predator law, since it is not a criminal law, the state need not prove that the individual has committed a criminal act, only that he is likely to do so in the future, and of course, the state is excused from any obligation to prove criminal intent.

Many of my conservative friends who are prime supporters of the sex predator act criticize the modern criminal justice system for its failure to hold individuals accountable for the crimes they commit and for conjuring up childhood excuses to justify willful, criminal misconduct. But, I ask you, what does the sex predator act do? I attempted to summarize it in my dissenting opinion in one such case, Detention of Campbell, 139 Wn.2d 341, 373 (1999). Quoting myself is, after all, a privilege of my office:

So what is next? Burglars and car thieves often engage in recidivist conduct at a higher rate than treated sex offenders upon their release. Shall we therefore consider them sick and their conduct not criminal?

And how about political dissidents? Did not the Soviet Union incarcerate and "treat" in mental hospitals those who were crazy enough to question the ultimate power of the state and wisdom of its apparatchik?

Yes, I believe the criminal law is a bulwark against deprivations of our liberty; however, the Maginot Line was also said to be a bulwark against any German invasion into France. I submit to you the bulwark is still there, if not weakened. However, it does not take a rocket scientist like Werner von Braun to do an end run. Any corporal can figure that one out.

Therefore, in conclusion, I ask you to stand with me to help safeguard an independent judiciary and the constitutional guarantees of criminal process and procedure which were so hard won but are now so easily forgotten. I can promise you this, so long as the spirit of liberty lives, we will not give up without a fight.