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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

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Larry Haskell: Equality v. equity: Not just semantics

I write in response to recent letters and opinions published in The Spokesman-Review with respect to the ongoing discussion on equity and equality in the application of state statutes to criminal cases in Spokane County.

It is claimed that the source of authority for the application of equity in a criminal case lies in the U.S. Constitution.

The U.S. Constitution mentions the word “equity” only two times. It is first mentioned in a description of the extent of the judicial power of the federal courts in Article III, Section 2. The Constitution draws a clear distinction between cases of law and cases of equity. Article III is devoted to a discussion of the federal judicial branch and does not address state court authority at all.

The second time the U.S. Constitution mentions “equity” is in the 11th Amendment. The 11th Amendment clarifies the federal judicial powers language contained in Article III, Section 2. It prohibits the federal courts from hearing certain lawsuits against states. Here again, the framers addressed limits to “judicial power of the United States” in certain suits and distinguish between those involving law and equity.

The Constitution clearly distinguishes between cases of law and cases of equity. The distinction is critical. Equity is outcome-based. Individual conduct drives outcomes. Criminal cases are cases of law and are driven by a comprehensive statutory scheme which, in our state, is contained largely in RCW 9 and 9A. Judges in Washington state courts presiding over criminal cases do not sit as courts of equity.

The definition of equity is not the issue. The issue is whether the U.S. Constitution requires, or even allows, a judge sitting in a state criminal court to apply an “equity lens” in lieu of statutory requirements mandated by the Legislature. The answer is no. Washington state criminal courts are not equity courts. The U.S. Constitution does not change that.

Equal treatment, however, is a constitutional guarantee for all of us. As I have previously stated, in what The Spokesman Review labeled as “Haskell’s Principle:” Spokane County is (or rather, should be) committed to a consistent, principled and equal application of the law for all persons regardless of their race, gender, religious affiliation, orientation or social status.

What is the role of the court in all of this? There is actually a statute for that. It reads: “Every judge of a superior court shall, before entering upon the duties of his or her office, take and subscribe an oath that he or she will support the Constitution of the United States and the Constitution of the state of Washington, and will faithfully and impartially discharge the duties of judge to the best of his or her ability.” Webster’s Dictionary defines impartial as: “Not partial or biased; treating or affecting all equally.”

In my opinion, applying equitable principles in a criminal case is inconsistent with justice. To do so would allow a judge to show partiality, without an established standard, to an accused based on factors not found in the Constitution or in the criminal laws passed by our legislature. A judge’s duty, according to state law, is to discharge judicial duties impartially, or equally, to all. A judge in a criminal case sits as a judge over facts and law, not as a court of equity. In my opinion, when a judge takes into consideration factors that are outside state law and the judicial oath, and for which there exists no standard, that judge has not upheld either one.

The current equality v. equity discussion did not arise from misapplication of the law. It is grounded neither in the Constitution nor the statutes. It is, in fact, a sociopolitical movement that should not play out in a courtroom. The constitutional and statutory provisions at issue have remained the same for many years. They have been applied in the courts, tested on appeal and upheld. But suddenly, principles involving equal application of law are considered inadequate, misguided and wrong.

Want change? Use the rule of law. Honor our process. I certainly will.

Larry Haskell is the Spokane County prosecuting attorney.