Military and Police

State High Court Arbitrarily Decides to Kill Death Penalty for Being Arbitrary

Of the 23 states that have either abolished the death penalty or have a governor-imposed moratorium, none of the revocations were decided by the people or their representatives. Either a court or governor has struck down or suspended capital punishment in their state. What happened to Of the people, by the people, for the people?

Then again, why try to convince a million when you only have to convince one. This is not unusual for the left. In fact, this is why the left fights so hard to fill (or not fill) Supreme Court and other federal court vacancies.

The left’s despicable performance during the Kavanaugh confirmation hearings provided plenty of evidence of just how low they will go to get their way. When the left cannot achieve their political goals at the ballot box, they turn to the courts and judicial activism.

Think about the spate of leftist federal judges, since President Trump was elected, using the judiciary to usurp constitutional authority from the executive branch. How many leftist judges have obstructed executive branch immigration policies, even when they were the same policies that existed under the previous president?

I mean, some of these “brilliant” judges actually cite presidential campaign speeches as “evidence” of what they somehow distort as “unconstitutional.” If this isn’t judicial activism, judicial malpractice, I don’t know what would qualify.

If you’ll notice, many of the issues the courts decide in favor of leftists are twofold: one, there is the issue e.g., abortion, immigration, etc. and two, the proper jurisdiction e.g., does the court have the constitutional authority to decide a particular issue? Or does it belong in a state or lower court?

For example, with Roe v. Wade, many Americans believe they’d witnessed the U.S. Supreme Court invent a “right,” which is not contained within the U.S. Constitution. Abortion had been, and should have remained, a state issue. The 1973 majority conflated, extrapolated, and discombobulated their arguments to make a square abortion block fit into a round constitution hole.

From the Heritage Foundation: “Judicial power can be used, and has been used, for both good and ill. However, in a basically just democratic republic, judicial power should never be exercised lawlessly—even for desirable ends. Judges are not legislators. The legitimacy of their decisions, particularly those decisions that displace legislative judgments, depends entirely on the truth of the judicial claim that the court was authorized by law to settle the matter. When this claim is false, a judicial edict is not redeemed by its good consequences, for any such edict constitutes a usurpation of the just authority of the people to govern themselves through the constitutional procedures of deliberative democracy. Decisions in which the courts usurp the authority of the people are not merely incorrect; they are themselves unconstitutional. And they are unjust.

The other day, Rush Limbaugh asked his audience why there are so few public demonstrations opposing abortion in Great Britain compared with the U.S. He said it’s because the British people made abortion legal through legislation. Not in the courts through activism.

Though many Brits still oppose abortion, legislative action, rather than judicial activism, adds a dimension of, if not moral, at least, cultural authority and public consent to the issue. Whether one sees the issue as right or wrong, a few people in black robes did not impose legal abortion on millions of people as had happened in the U.S. Sadly, albeit still better, the British people imposed legal abortion on themselves.

This leftist judicial activism also extends to fighting state death penalties. Recently, Washington’s Supreme Court struck down the state’s death penalty. Capital punishment had been under a governor-ordered moratorium since 2014. But what do the people of Washington state want? As far as the governor and nine justices are concerned, I’m not sure it matters.

The Washington Supreme Court, which some folks refer to as the “Seattle Supreme Court” for its far leftist rulings, became the latest high court to legislate an issue from the bench. The court is dark blue and does not represent much of the state, especially geographically, which is red. Of the state’s 39 counties, 30 are red. The nine blue counties are all in western Washington, surrounding the leftist hub of Seattle.

The predominately liberal justices bristle at suggestions they are not non-partisan, but the court consistently issues rulings favoring leftists while rejecting conservative causes: abortion, death penalty, immigration, firearms, environmental, transportation, law enforcement, etc.

In striking down the death penalty, like the federal court in Roe, this state court seems to have discovered in the state Constitution something that no other Washington high court in state history has found in the last century and a half. In a 9-0 ruling, they found the state’s death penalty unconstitutional. Though several reasons were cited, racial inequities made the headlines—of course.

Now, this decision was peculiar for many reasons, but one reason truly baffles. Just about six months ago, this same court upheld the death penalty for a death-row inmate. In a 6-3 ruling and a 254-page opinion, the court upheld the death sentence for Conner Michael Shierman.

Shierman was convicted for the 2006 murder of four people. He stabbed to death two women, a 5-year-old boy, and a 3-year-old boy. Then Shierman set the house on fire to destroy evidence of his crime. One of the murdered women’s husband and the father of their two slain children was in the Army National Guard. He was serving in Iraq at the time this now-former death-row inmate killed his family.

Let’s get this straight: Six months ago, the court upholds the death penalty for this fiend who would plunge a knife into a child. Then, six months later, this same court strikes down the entire death sentence as “arbitrary and unconstitutional.” How does that work? I understand good people can disagree on capital punishment. But that’s not the point. What changed so significantly in half a year?

I’ll concede there seem to be some valid arguments supporting an uneven application of the death penalty in Washington. Still, I have a problem with the wholesale abolition of capital punishment when it might be better to fix the law—you know, that whole baby-bathwater thing. From the mainstream media headlines, it’s clear the left wants us to believe the primary reason for the “unfairness” is racism. However, there are other more logical explanations.

For example, in some counties, a prosecutor is less likely to consider a death sentence due to something as mundane as the expense to the county. But in a wealthier county, the court might consider and may impose the death penalty.

This might make the death penalty’s application seem arbitrary when, more accurately, it’s a matter of budgetary pragmatism. I’m not arguing that it is right; it’s not. I’m only saying that’s the way it is and should be considered before the left raises accusations of inequities due to racism. At the time of the revocation, there were eight inmates on death row: Five white and three black.

Former Washington Attorney General Rob McKenna, a Republican, is “convinced that it [capital punishment, as currently applied] is not working in Washington state.” However, McKenna raises two compelling arguments for retaining a (refurbished) death penalty. The former AG says capital punishment deters correctional officer murders, and it provides leverage for prosecutors to use with defendants accused of horrific crimes.

For example, without capital punishment, what deterrent does a convicted murderer already serving a life sentence have to not kill another inmate or a corrections officer? And, McKenna reminds us, by removing the death penalty threat, the Green River Killer confessed to 40 murders and provided information that helped authorities locate victims’ remains. The victims’ families could not have achieved closure without the threat of a death sentence.

McKenna also addressed the obvious: If a serial killer can murder 40 people and only get life in prison without parole instead of execution, how do you sentence another killer to death for one murder?

Still, the total abolishment rather than a temporary suspension seems, pardon the pun, overkill. They could also have issued a ruling that forces the criminal justice system to repair the deficiencies in the system, which seems more practical. Not to mention less offensive to the families of the murdered victims. At least, until the people of the state vote otherwise.

While there are legitimate arguments, mostly on the left but also on the right, against capital punishment, the two sides approach the issue from vastly different perspectives. The left tends to take an emotional and ideological approach.

When I see a leftist demonstrator outside a penitentiary shed tears of delight after a governor grants a reprieve or commutes some brutal killer’s death sentence, the warped priorities turn my stomach. You know what I think about when killers’ death sentences are commuted? Their victims.

When I hear a more conservative person, like commentator and author Bill O’Reilly, oppose the death penalty in favor of life without parole I listen to the argument. It makes more sense to me than the leftists’ emotional or ideological arguments against it. He carefully lists his thoughtful, logical, fact-based reasons for opposing capital punishment.

Regardless of his opposition, you certainly won’t find him crying for any murderers. In fact, his alternative to capital punishment, life without parole at hard labor—in remote Alaska, that might have many convicts crying for a death penalty.

I don’t agree with him about abolishing the death sentence, but I understand and respect his position. And who knows, one day I may agree with him. Unlike the left, I’m open to change as more information flows from the debate.

The right uses statistics and facts to determine if the sentence is being carried out equally as the Constitution demands. If not, the right would prefer to fix it than toss it. On the other hand, the left tends toward how it “feels.” It doesn’t like the death penalty because…well, as with so many other laws, they just don’t like it—so, you better not, either.

Remember, this state’s high court also found public schools were unconstitutionally under-funded (usurping the legislatures funding duties), charter-schools are unconstitutional, and they refused to strike down an anti-gun ballot initiative that contains too many errors to count. I’ll just give you one: Ballot initiatives may only have one issue; this one has 17.

If this court is not biased, then why do all their high-profile rulings seem to be left-leaning, ideologically? Coincidence?

Chief Justice Mary Fairhurst has shown herself to be a far-left ideologue who legislates from the bench. In 2012, two political scientists from Stanford University created a scoring system to determine the political ideology of state Supreme Court justices.

The scoring system is based on 0. Above zero, more conservative, below zero, more liberal. The average score for a Washington State Supreme Court justice is -0.91, which this system considers quite liberal. Chief Justice Fairhurst’s score of -1.4 (that is a negative 1.4) is well in excess of the average liberal jurist.

Promisingly, I go back to the comments by former Attorney General McKenna. During an interview with KIRO Radio, he put the ruling in perspective: “They are not saying we can never have a death penalty…they are saying that as applied under our current system, it’s unconstitutional.” This is obviously an important distinction.

Incidentally, this is a novel attack on the death penalty. Most opponents adopt the “cruel and unusual punishment” angle when attempting to abolish capital punishment. Instead, in this case, they employed arbitrary application (and racism, of course). This is primarily a technical argument about process, which just needs to be fixed.

Speaking of arbitrary application, the people shouldn’t tolerate a state’s highest court which changes its mind on important issues every six months. If something’s broken, fix it, don’t chuck it into the leftist Dumpster of laws they don’t like.

Regardless, if the proponents of capital punishment in Washington state ever do fix the deficiencies the court raised, I have a feeling the cruel and unusual argument is still sharpened and waiting in the left’s quiver.

I just hope that eventually this issue will be decided by a vote of the people. After all, our republic thrives on its democratic processes, no matter how far the left drifts from them. Let’s not allow a few judges to continue legislating from the bench because they believe they know what’s good for the people better than the people.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Steve Pomper

Steve Pomper is an OpsLens contributor, a retired Seattle police officer, and the author of four non-fiction books, including De-Policing America: A Street Cop’s View of the Anti-Police State. You can read a review of this new book in Front Page Magazine and listen to an interview with Steve on the Joe Pags Show. Steve was a field-training officer, on the East Precinct Community Police Team, and served his entire career on the streets. He has a BA in English Language and Literature. He enjoys spending time with his kids and grand-kids. He loves to ride his Harley, hike, and cycle with his wife, Jody, a retired firefighter. You can find out more about Steve and send him comments and questions at

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