Category Archives: Legislation

Midterm Elections Bring Criminal Justice Reforms

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Excellent article from the Sentencing Project describes how voters in a number of states considered ballot measures during yesterday’s Midterm Election. Criminal justice reform measures ranged from voting rights to sentencing reform.

Colorado – Abolishing Involuntary Servitude as Punishment

Coloradans approved Amendment A with 65% support; the measure removes language from the state Constitution that allows slavery and involuntary servitude to be used as punishment for the conviction of a crime. Abolish Slavery Colorado organized a broad coalition in support of the constitutional change. Supporters included faith groups and civil rights organizations.

Florida – Expanding the Vote

State residents expanded voting rights to as many as  1.4 million Floridians with a felony conviction by approving Amendment 4 with 64% support; support from 60% of voters was required to approve the ballot measure. Justice involved residents now automatically have the right to vote once they complete their prison, probation or parole sentence; persons convicted of homicide and sex offenses are excluded from the measure.

The state’s lifetime felony voting ban was among the most restrictive in the country, along with Iowa, Kentucky and Virginia which maintain lifetime voting bans for all felonies unless the governor takes action. The Florida Rights Restoration Coalition, which organized broad support for the measure, was led by directly impacted residents and garnered more than 800,000 signatures to qualify Amendment 4 for the ballot.

Florida – Retroactivity & Sentencing

Also in Florida, voters approved Amendment 11 with 62% support, a measure that allows sentencing reforms to be retroactive. The amendment repeals language from the state’s ‘Savings Clause’ in the constitution that blocks the legislature from retroactively applying reductions in criminal penalties to those previously sentenced. Statutory law changes are not automatically retroactive; the legislature still has to authorize retroactivity for a particular sentencing reform measure.

Louisiana – Requiring Unanimous Jury Consideration

Louisianans approved Amendment 2, a constitutional change requiring unanimous juries for all felony convictions.  In all other states, except Oregon, a unanimous jury vote is required to convict people for serious crimes; Louisiana was the only state where a person could be convicted of murder without a unanimous jury. Advocacy for Amendment 2 was supported by a broad coalition that advanced criminal justice reforms in recent years. The state’s Democratic and Republican parties endorsed Amendment 2, as well as community groups including Voice of the Experienced, and Americans for Prosperity.

Michigan – Authorized Marijuana Possession

Michiganders approved Proposal 1, a measure that legalizes marijuana for adult recreational use. The change means residents over age 21 will be able to possess up to 2.5 ounces of marijuana on their person and up to 10 ounces in their home. The newly elected governor has signaled support to pardon justice involved residents with prior marijuana convictions and legislation is pending to require judges to expunge misdemeanor marijuana convictions.

Ohio – Rejected Felony Reclassification Measure

Ohio residents rejected Issue 1, a measure that would have reclassified certain drug offenses as misdemeanors and prohibited incarceration for a first and second offense. The measure failed with 65% voting against the sentencing reform. In recent years, voters in California and Oklahoma approved similar ballot initiatives to reclassify certain felonies as misdemeanors with a goal of state prison population reduction.

Washington – Strengthening Police Accountability

Voters passed Initiative 940 and repealed a provision in state law that made it difficult to bring criminal charges against police for deadly force. The Washington law required prosecutors to prove “evil intent” or “malice” when filing charges like manslaughter against police officers. Washingtonians approved the measure with 60% support. I-940 also requires training in de-escalation and mental health for law enforcement officers; requires police to provide first aid to victims of deadly force; and requires independent investigations into the use of deadly force.

My opinion? State initiatives provide an opportunity to civically engage communities on criminal justice policies and build momentum to challenge mass incarceration.

Midterm voters across the nation have spoken. For the most part, their decisions are a step in the right direction. We see an end to involuntary servitude in prison, granting voting rights to some convicted felons, jury unanimity, the legalization of marijuana and the strengthening of police accountability. Good.

Please contact my office of you, a friend or family member face criminal charges. It’s extremely important to hire competent and proactive defense attorney who is knowledgeable of the law.

Federal Legislation to End Cash Bail

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Excellent news article by  of The Intercept discusses how Senator Bernie Sanders introduced legislation to end money bail on the federal level and create incentives for states to follow suit.

According to  , The No Money Bail Act is the latest example of the push from the Democrats to tackle criminal justice reform. It would prohibit money bail in federal criminal cases, provide grants to states that wish to implement alternate pretrial systems, and withhold grant funding from states that continue using cash bail systems.

Additionally, the bail reform “requires a study three years after implementation to ensure the new alternate systems are also not leading to disparate detentions rates,” according to a summary of the bill provided by Sanders’s office.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” the summary reads. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell. And this disproportionately affects minorities — fifty percent of all pretrial detainees are Black or Latino.”

In a statement accompanying the release of his bill, Sanders said the following:

“Poverty is not a crime and hundreds of thousands of Americans, convicted of nothing, should not be in jail today because they cannot afford cash bail. In the year 2018, in the United States, we should not continue having a ‘debtor prison’ system. Our destructive and unjust cash bail process is part of our broken criminal justice system – and must be ended.”

Also according to , the idea of eliminating money bail is controversial, even among Democrats, so it is unlikely that the legislation will soon be enacted into law. Indeed, Rep. Ted Lieu, D-Calif., introduced a similar measure in the House in 2016 and 2017, but his bills gained little traction. Last year, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced a measure to encourage states to reform bail practices, though they did not go as far as calling to eliminate cash bail on the federal level.

Still, these efforts represent a growing sense of urgency among lawmakers to address the racial disparities that plague the criminal justice system. Senate Minority Leader Chuck Schumer last month introduced a bill to decriminalize marijuana at the federal level, removing the drug from the Controlled Substances Act. The House passed a tepid prison reform bill that was pushed by President Donald Trump’s son-in-law Jared Kushner in May, and the Senate has introduced similar legislation.

For-profit companies are “making a fortune” off indigent defendants, according to the summary of the Sanders bill. Indeed, the for-profit bail industry makes between $1.4 billion and $2.4 billion a year, the American Civil Liberties Union wrote in a 2017 report. An inability to afford bail leaves defendants across the country languishing in pretrial detention bars for extended periods of time; in 2014, about 60 percent of people in U.S. jails had not been convicted of a crime, the Department of Justice’s Bureau of Justice Statistics reported.

“Pretrial detention should be based on whether or not someone truly should not be freed before their trial,” the summary continued. “It should not depend on how much money they have, or what kind of mood the judge is in on a given day, or even what judge the case happens to come before. We also must insure that jurisdictions do not eliminate cash bail but find pretexts to continue unfairly locking people up before trial.”

State and local governments have made similar efforts in recent years. New Jersey has been at the forefront of the bail reform movement, largely eliminating its cash bail system last year. District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases. And Philadelphia District Attorney Larry Krasner also fulfilled one of his high-profile campaign promises when he announced an end of cash bail requirements for low-level offenses in February.

My opinion? The movement to end cash bail seems to be gaining momentum. If so, it’d eliminate a significant hurdle in gaining justice for defendants facing criminal charges.

California Eliminates Cash Bail

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Great article by Madison Park and Cheri Mossburg of CNN news covers how California will end the cash bail system in a sweeping reform for the state. Rather than requiring defendants to pay in order to be released before trial, their release will hinge on an assessment of their risk to public safety.

On Tuesday, the California Money Bail Reform Act, also known as Senate Bill 10, passed in the State Senate with a vote of 26-12, and the General Assembly by 42-31.
“SB 10 puts all Californians on equal footing before the law and makes public safety the only consideration in pretrial detention. This critical reform is long overdue,” said Toni Atkins, Senate president pro tempore.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Gov. Jerry Brown said in a statement.
Brown signed the bill Tuesday, and the new law goes into effect October 1, 2019. California is the first state to eliminate money bail completely, according to the Pretrial Justice Institute, an organization that advocates for pretrial justice reform.
According to reporter Madison Park, critics have long contended that the money bail system perpetuates inequality. While some people are able to quickly get out of jail by posting bail, people who aren’t able to afford it sit in jail until the court takes action, or until they work with a bail bond agent to secure their freedom, which can leave them in debt.
“Abolishing money bail and replacing it with a risk-based system will enhance justice and safety. For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” said Assemblymember Rob Bonta, one the lawmakers who introduced the bill, in a statement.
Under the new law, a pretrial assessment would be done by either court employees or a local public agency that has been contracted to determine a defendant’s risk. That entity would assess the likelihood that the person will not appear in court or commit a new crime while released, and would make a recommendation for conditions of release. The defendant will be assessed as high, medium or low risk. A person who is deemed as high risk, including those arrested for violent felonies, will not be released.
Surprisingly, the ACLU in California expressed disappointment over the bill, saying it “is not the model for pretrial justice and racial equity that California should strive for.”
“It cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making,” said the three executive directors of the California ACLU affiliates, Abdi Soltani (Northern California), Hector Villagra (Southern California) and Norma Chávez Peterson (San Diego & Imperial Counties). “Indeed, key provisions of the new law create significant new risks and problems.”
Indeed, the ACLU pulled its support for the bill earlier this month as the it underwent changes in the state legislature.
My opinion? This is a bold, progressive step. The subject of cash bail has always been a cantankerous subject which underscores how justice applies to the privileged vs. the non-privileged. For the underprivileged, defendants who cannot afford to pay bail are more likely to plead guilty to criminal charges. Jail is a terrible place, and getting out as soon as possible is an overwhelming desire for most defendants who find themselves there. There’s no justice in pleading guilty to crimes that we would otherwise not plead guilty to simply to get out of jail.
Let’s wait and see how California does. The success of  California Money Bail Reform Act could determine whether other states adopt similar legislation.
Please contact my office if you, a friend or family member face criminal charges and are held in jail pending the outcome of the case. Chances are, a competent attorney can persuade the judge to lower the bail or even release the defendant without bail on their personal recognizance. For more information, please read my Legal Guide titled, “Making Bail.”

Increase of Uninsured Drivers in WA State

Informative article by Rolf Boone of The Olympian discusses how the number of uninsured motorists in Washington state increased to 17.4 percent between 2012 and 2015, according to the Northwest Insurance Council, which cited a report by the Insurance Research Council.

Washington state is now seventh highest in the country for uninsured drivers.

“It is concerning that in our region’s thriving economy, with more vehicles than ever on our roadways, that a growing percentage of drivers are uninsured, breaking the law and imposing higher costs on insured drivers,” said Kenton Brine, Northwest Insurance Council President in a statement.

The five states with the highest number of uninsured motorists:

-Florida, 26.7 percent.

-Mississippi, 23.7 percent.

-New Mexico, 20.8 percent.

-Michigan, 20.3 percent.

-Tennessee, 20 percent.

Under RCW 46.30.020, it is a civil infraction to drive without insurance. The legislative intent of this law says, “It is a privilege granted by the state to operate a motor vehicle upon the highways of this state. The legislature recognizes the threat that uninsured drivers are to the people of the state.”

Driving without insurance can be potentially damaging. Along with facing civil penalties, police officers may find some excuse to search your vehicle and/or investigate you for DUI, Driving While License Suspended, etc. Please contact my office if you, a friend or family member face these or any other charges relating to driving. You may need competent defense counsel to get these charges reduced or dismissed.

Death Penalty Repealed?

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DWLS-III Decriminalized?

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Excellent article by Seattle Times staff reporter discusses how a birpartisan group of lawmakers is continuing to push for change in a law that legislators, civil-rights groups and others say disproportionately burdens the poor and communities of color.

Senate Bill 6189, which is sponsored by Sen. Joe Fain, R-Auburn, would decriminalize the charge of third-degree driving with a suspended license (DWLS-III), a misdemeanor. Under current state law, those caught driving with a suspended license due to unpaid traffic tickets or because they didn’t show up for court hearings can be jailed.

The bill has been referred to the Senate’s Law and Justice Committee but not yet scheduled for a hearing. Sen. Jamie Pederson, D-Seattle, who chairs the committee, said he agreed the issue is important, but with a short legislative session and many bills to review, he was hesitant to say if he will schedule a hearing on a proposal that in the past hasn’t been successful.

According to a 2017 report by the American Civil Liberties Union of Washington, Driving While License Suspended Third Degree is the state’s most commonly charged crime. SB 6189 would remove its misdemeanor status and make the charge a traffic infraction with a $250 penalty. The penalty would be reduced to $50 if a defendant could show he or she got the license reinstated.

 Pacheco reports that since 1994, prosecutors in Washington state have filed some 1.4 million charges and obtained 860,000 convictions, according to the ACLU report. Native Americans were twice as likely as whites to be charged with the crime of third-degree driving while license suspended (DWLS-III), and blacks were three times as likely.

According to Pacheco, unpaid traffic infractions can pile up quickly, with some people accumulating thousands of dollars in fines that must be paid off to reinstate their license, said Rick Eichstaedt, executive director of the Center for Justice, which operates a program in Spokane that helps people reinstate a suspended license.

The Washington Association of Sheriffs and Police Chiefs has opposed previous efforts to decriminalize DWLS-III, but Executive Director Steve Strachan said the organization recognizes the financial burden the law has caused. The association wants to work with legislators to find a balanced solution to DWLS-III where accountability still exists and abuse of the system is discouraged, Strachan said.

Fain, the Auburn lawmaker, previously worked in the King County Prosecuting Attorney’s Office and said he witnessed a deluge of DWLS-III cases that made it difficult to focus on more important cases, such as drunken driving.

In 2009, in conjunction with King County District Court, the prosecutor’s office stopped charging stand-alone DWLS-III cases, but Fain said prosecutors still spent a lot of time handling such cases tied to other crimes.

“I want to spend more of my time on things that will actually improve public safety,” Fain said. “I think individuals, especially lower-income people, living paycheck to paycheck need to be able to go to work and pay their fines,” Fain said, “so you want to make sure you’re not inhibiting a person’s ability to comply with the law.”

Pacheco correctly states that DWLS-III charges are the least serious of the DWLS charges. First- and second-degree driving with a suspended license are charges aimed at habitual offenders and those who lost their licenses due to drunken-driving or reckless-driving convictions.

Co-sponsor Sen. David Frockt, D-Seattle, said fines and the possibility of jail time under the current law effectively criminalize poverty and hurt communities of color.

“Putting people into this cycle where people get fined and they can’t pay and get further fined,” said Frockt, “there’s other alternatives.”

Pacheco says that if a measure is passed, Washington would join a handful of states that have decriminalized driving with a suspended license, including Oregon, Wisconsin and Maine, according to the National Conference of State Legislatures.

In 1993, Senate Bill 1741 made driving with a suspended license due to unpaid traffic infractions a misdemeanor.

My opinion? I hope the legislature decriminalizes DWLS-III. These charges essentially hook people into the criminal justice system for failing to pay traffic fines.  The charges also expose people to a search incident to arrest with the very real possibility of police finding illegal contraband which may lead to heavier charges. Also, a DWLS-III conviction makes it difficult for people to get to work and further holds back those working their way toward paying off fines and avoiding more fines or jail time.  Please contact me if you, a friend or family member is charged with DWLS III.

I-940 & Police Misconduct

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Wonderful article by  of the Seattle Times  reports that Initiative 940 (I-940) gives an opportunity to prosecute police for deadly shootings in Washington state.

With Thursday’s expected delivery of signatures for Initiative 940, years of debate and stalemate over Washington’s deadly-force law look to be coming to a head. If I-940 qualifies, state lawmakers — and probably ultimately voters — will face big decisions on a charged issue.

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De-Escalate Washington

De-Escalate Washington didn’t just pull together the bare-bones 260,000 signatures for I-940, which would make it easier to prosecute law-enforcement officers for alleged misuse of deadly force. The group hopes to turn in about 360,000 signatures Thursday to the Washington Secretary of State’s office, according to Leslie Cushman, the group’s policy director.

In his article, O’Sullivan reports that community advocates have argued Washington’s law — considered the nation’s most restrictive for holding officers accountable for unjustified use of deadly force — is overdue for a change. Right now, an officer can’t be convicted of a crime for using deadly force if he or she acted in good faith and without malice, or what the law calls “evil intent.” That makes it nearly impossible for prosecutors to bring criminal charges even if they find an officer committed a wrongful killing, according to a 2015 report by The Seattle Times.

I-940 would change the law to a more detailed, multipart threshold that considers what a “reasonable officer” might have done under the circumstances. It would also take into account an officer’s intentions to determine if she or he acted in good faith.

The initiative also requires more de-escalation and mental-health training for law- enforcement officers.

O’Sullivan also writes that the effort comes on the heels of high-profile shootings including the deaths in Seattle of Che Taylor and Charleena Lyles by white officers of African Americans and other minorities in recent years have underscored concerns about law enforcement.

Family members of several victims of police shootings have been involved in the campaign, including Che’s brother Andrè, who chairs De-Escalate Washington.

Law Enforcement Response to I-940

O’Sullivan reports that law-enforcement groups have protested changes to the deadly-force statute. They say the new legal standard could prompt officers to hesitate in ways that could endanger themselves and others.

 “Unfortunately, this initiative will not do anything to reduce violent interactions between law enforcement and the public,” said Teresa Taylor, executive director for the Washington Council of Police & Sheriffs, which represents more than 4,300 law- enforcement officers.
However, success in the legislative session that begins in January appears unlikely. Lawmakers this year couldn’t find a compromise that satisfied both law enforcement and community activists.
My opinion? I-940 is a step in the right direction. And it’s about time. Police misconduct is a hot-button issue. Granted, being a police officer is a very difficult job. Officers make difficult judgment calls in very complex, risky and dangerous situations. That said, officers need training on diffusing situations which don’t necessarily rise to public safety and/or officer safety risks. I-940 is not made to put police in jail for doing their jobs. It’s made to foster public trust, train officers in de-esclating their contacts with citizens and avoid unnecessary shooting deaths.

Vacating Convictions

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In State v. Lambert, the WA Court of Appeals held that when an offender has been convicted of an offense that is a crime against a person, the record of that conviction may not be vacated. Third degree statutory rape is a crime against a person.

BACKGROUND FACTS

In 1986, when Lambert was nineteen years old, he was charged with third degree statutory rape. The charge was based on an incident involving a victim fifty-five months younger than Lambert. Lambert pleaded guilty as charged.

Lambert was sentenced in May 1987. The law at that time said that the record of conviction for statutory rape could be vacated, in the trial court’s discretion, after the offender satisfied his sentence and completed five years after discharge without a new conviction.

In July 1987, however, the law concerning vacation of the record of conviction was amended. Under the new law, statutory rape in the third degree was defined as a crime against persons that could not be vacated.

In 1988, the legislature enacted broad changes to the criminal code concerning sex offenses. The sections defining statutory rape in each degree were replaced with provisions defining three degrees of rape of a child. “Rape of a child” replaced “statutory rape” in the list of crimes against persons that could not be vacated.

In 2016, Lambert moved to vacate the record of his conviction. He argued that the 1988 amendments did not apply retroactively and the trial court thus had discretion to vacate the record of conviction for his offense, third degree statutory rape. The trial court ruled that Lambert was “not eligible to have his conviction vacated because rape of a child third degree is a crime against a person.” Lambert appealed.

LEGAL ISSUE

Whether statutory rape in the third degree is a crime against a person that may not be vacated.

ANALYSIS & CONCLUSIONS

“The legislature expressly designated statutory rape in the third degree, and that crime as it ‘may be renamed in the future,’ as a non-vacatable crime against a person,” reasoned the Court. “Rape of a child in the third degree criminalizes the same essential conduct as third degree statutory rape: engaging in sexual intercourse with a person between fourteen and sixteen years of age.”

The court further reasoned that the offenses differ in replacing the requirement that the offender be at least eighteen years old with the requirement that the offender be at least forty eight months older than the victim. Rape of a child is expressly defined as a crime against persons.

“It appears that the 1988 amendments renamed statutory rape and retained the prohibition on vacating the record of conviction for that offense,” said the Court.

“We conclude that where, as here, an offender was convicted of statutory rape, and the facts proved establish each element of that offense as amended and renamed, the prohibition on vacating the record of conviction remains in effect.”

Finally, the Court said Lambert had no vested right to vacate the conviction because he failed to satisfy all statutory conditions for vacating his sentence before the change in law took place.

My opinion? It’s important to seek qualified, competent legal representation when trying to vacate prior criminal convictions. It’s not abundantly clear that prior crimes against others cannot be vacated under the law. Please contact my office if you, a friend or family member need advice on vacating criminal convictions.

“Revenge Porn” Outlawed by the Feds?

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Excellent article by Brian Murphy and Andrea Drusch of mcclatchydc.com discusses how congressional lawmakers are pushing to make “revenge porn” or “sextortion” a federal crime.

Tuesday, Sens. Richard Burr, R-N.C., Kamala Harris, D-Calif., and Amy Klobuchar, D-Minn., said they’d sponsor the new legislation to make “revenge porn” a federal crime by passing a bill very similar to a bill introduced last year by Rep. Jackie Speier, D-Calif. Speier introduced the bill in the House again Tuesday.

According to the article, Rep. Joe Barton, a Texas Republican who is sponsoring the bill, said he shared a sexually explicit video and text messages with a woman he was seeing after he separated from his second wife. An image from that video of a naked Barton, now 68, appeared on the internet last week, becoming the talk of his hometown and spurring debate over criminal intent.

Barton apologized last week for the leaked video, saying he should have used better judgment. He also suggested he’d been the victim of the crime of revenge porn, which is illegal under Texas’s law, but not federal law.

Barton sent the video to a woman who he saw over the span of several years. In a recorded phone conversation that the woman gave to the Washington Post, Barton asked her not to use the video to hurt his career. She said she had no intention of doing so, but the video surfaced last week from an anonymous Twitter account.

Barton took the incident to the U.S. Capitol Police, but said last week he’d heard no word that an investigation had been opened.

According to Murphy and Drusch’s article, thirty-eight states and D.C. have laws against distributing “revenge porn.” The new federal legislation would make it “unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.”

Murphy and Drusch wrote that North Carolina passed legislation outlawing “revenge porn” in 2015 and updated the provision in 2017. The state law makes it illegal to post nude photos online without the consent of the victim.

The FBI defines “sextortion” as “when someone threatens to distribute your private and sensitive material if you don’t provide them images of a sexual nature, sexual favors, or money.”

In short, the proposed federal legislation would establish federal criminal liability for people who share private, explicit images without consent. In order to prosecute someone under the proposed law, officials would have to prove the defendant was aware of a substantial risk that the victim expected the image would remain private and that sharing could cause harm to the victim.

“Perpetrators of exploitation who seek to humiliate and shame their victims must be held accountable,” said Harris, the former attorney general of California who prosecuted operators of “revenge porn” sites. “It is long past time for the federal government to take action to give law enforcement the tools they need to crack down on these crimes.”

The bill provides up to five years in prison and/or unspecified fines.

My opinion? Washington State has already outlawed “revenge porn” as a Class C Felony under the “Disclosing Intimate Images” statute RCW 9A.86.010. Other states have also followed suit. It appears the feds are simply catching up.

Immediately contact my office if you, a friend or family member face criminal charges for distributing suggestive content online. It’s imperative to find a competent criminal defense attorney who can possibly suppress the evidence and/or convince prosecutors and judges to reduce or dismiss these egregious charges.

Dealing in Depictions

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In State v. Gray, the WA Supreme Court decided that the Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct statute allows the State to prosecute a minor for taking and distributing a sexually explicit photo of himself.
BACKGROUND FACTS
When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of Second Degree Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct under ROW 9.68A.050. It also charged him with one count of Telephone Harassment under RCW 9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the trial court denied.
In a stipulated facts trial, the court found Gray guilty of the second degree dealing in depictions of a minor charge. The State agreed to dismiss the telephone harassment charge and chose not to charge him with two counts of misdemeanor indecent exposure stemming from an unrelated incident. He was sentenced to 150 hours of community service, 30 days of confinement, and fees, before being released with credit for time served. He was ordered to register as a sex offender.
Mr. Gray appealed to Division Three of the Court of Appeals, which affirmed his adjudication. He appealed again, this time to the Washington Supreme Court, claiming the plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves. The American Civil Liberties Union of Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild subsequently filed a joint brief as amicus curiae, or “friend of the court”.
ISSUES
1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself?
2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions?
COURT’S ANALYSIS AND CONCLUSIONS
The WA Supreme Court reasoned that the plain language of the statute prohibits transmitting sexually explicit images of a minor even if the minor himself sent it:
“Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a “natural person” and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase “Do u like it, babe?,” indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor’s genitals designed to sexually stimulate the viewer. This falls squarely within the statute’s plain meaning.”
The Court also reasoned that the statute here is unambiguous. A “person” is any person, including a minor. “Images of a ‘minor’ are images of any minor,” reasoned the Court. It elaborated that nothing in the statute indicates that the “person” and the “minor” are necessarily different entities. Therefore, the photographer or distributor may also be the minor in the photograph. “Because of this, Gray was properly charged with taking and disseminating sexually explicit images of a minor,” said the Court.
Furthermore, the Court reasoned that the Legislature’s findings support the Court’s plain reading of the statute. “The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain,” said the Court. “Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray’s actions.”
Finally, the Court reasoned that the statute is neither unconstitutionally overbroad nor unconstitutionally vague. First, it does not invite arbitrary and discriminatory enforcement. Despite Gray’s arguments, the Court reasoned that the State is vested with great discretion in determining how and when to file criminal charges. Here, Gray presents no evidence the State made the choice to charge Gray for an arbitrary or discriminatory purpose.
Second, the wording of the statute allows a reasonable person to understand what conduct is prohibited. “It states that ‘a person’ will be guilty if they transmit sexually explicit images of ‘a minor,’ said the Court. “On its face, this includes any person, even a minor taking a picture of himself. Our responsibility is to interpret the law, not to write it, and here the law is clear.”
With that, the WA Supreme Court voted 6-3 to affirm the Court of Appeals and upheld Gray’s conviction.
THE DISSENT
Justice McCloud authored the dissenting opinion. He reasoned that RCW 9.68A.050 is designed to tackle a significant problem: trafficking in sexual depictions of children. Furthermore, the statute tackles that problem with severe criminal penalties for the traffickers but protection for the depicted children.

“There is a long-standing and well-accepted rule that when a legislature enacts a criminal law to protect such a specific class, we cannot interpret that law to permit prosecution (and potential revictimization) of members of that protected class for their own exploitation—unless the legislature explicitly says so. The legislature did not say so here. Hence, the general rule applies,” said Justice McCloud. “Gray, the depicted minor, cannot be prosecuted under this statute for disseminating pictures of himself.”