Judging Andress

Does an assault that ends in death constitute second-degree murder?

In 2002, the Washington Supreme Court, by a 5-4 margin, decided the answer was no.

The court eliminated what prosecutors felt was one of the most well established laws in the books — the second-degree “felony” murder charge. Basically, if a person commits a robbery, rape or any felony, and they unintentionally kill another during the crime, they can be charged with murder and receive a stronger sentence.


No more, the court ruled (at least for a short time, as the legislature reinstated the law shortly after).

The resulting impact created a chance for hundreds of inmates around the state convicted of the law to petition and be tried for a different crime. Most successful petitioners received reduced sentences — and in some cases even walked free.

(Read the Kitsap Sun’s article on the topic here.)

The court’s decision prompted outcry from the victim’s families and the prosecutors that tried their killers.

But according to David Boerner, a professor of criminal law at Seattle University, the court wasn’t weighing the issue of whether criminal charges should carry reduced penalties. Instead, they were simply making an interpretation of a state law, passed back in 1975, when the Legislature added language to the murder statute that, simply speaking, opened it to greater interpretation.

“We can argue with them,” said Boerner of the highest state court. “But the decision was simply to see what Legislature meant back in the ‘70s.”

Washington’s judicial system — like all of America’s — cannot create its own laws and standards. They must leave the task to the legislative branch of government.

“They don’t have authority to make the law,” Boerner said. “They just interpret the meaning.”

When judges attempt to create law, they’re dubbed activists, Boerner said. One recent example of outcry that justices were performing “activism” is the Federal ninth circuit court of appeal’s decision to attempt a ban on the Pledge of Allegiance because it contained the religious clause “Under God.” Critics slammed the judges for what they said was an attempt to create legislation.

It’s also the same reason that the nation’s Supreme Court Chief Justice John Roberts, Jr., had to walk a fine line concerning his political leanings during his confirmation hearings: personal opinions must be brushed aside in favor of interpreting laws already established while on the bench.

“It’s part of the debate: Can you set aside your personal views and apply the law as it is?” Boerner said.

As with the Andress case and all others, not everyone is happy with how the courts feel law should be deciphered.

“Prosecutors believe they got it wrong,” Boerner said of Andress. “But in every case, somebody wins and somebody loses.”

The Legislature — whose job is to make laws — passed one in March 2003 to again allow prosecutors to utilize the second-degree felony murder law when an assault ends in death.

One thought on “Judging Andress

  1. Although the Legislature made it clear that assault resulting in a death WAS “murder 2,” all convictions of that between 1975 and 2003 resulted in sentences dropping at least by half. Allowing the murderers to be the winners. Who knows what catagory of crime the Supreme Court will strike the next time?

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