In In Re Personal Restraint of Stockwell, the Supreme Court unanimously (7 judges, with 2 concurring) determined that an involuntary guilty plea may only be overturned on collateral attack if the petitioner shows actual and substantial prejudice from the circumstances surrounding the plea.  This decision is the latest in the Court’s self-described “course correction” towards a more stringent standard for granting relief after convictions have been finalized.  While concurring, Justice Gordon McCloud, joined by Justice Stephens, wrote separately to complain that the majority defined too stringently the prejudice required to prevail on personal restraint petition

In response to Stockewell’s personal restraint petition, a seven Justice majority took the opportunity  to emphasize again that the Court should not reverse a guilty plea on collateral attack ‘merely’ to correct a “manifest injustice,” but only on to address actual and substantial prejudice.  However, the Court declined to inquire whether the petitioner would have plead guilty had he known the statutory maximum, which is the usual definition of ‘prejudice.’  Instead, the Court found no prejudice where the sentence imposed was shorter than the stated and actual maximum.

The Court’s move away from a definition of prejudice which focuses on whether the defendant would have made a different choice is bad news from criminal defense attorneys and unhealthy for due process jurisprudence.  The decision to waive trail rights and accept a guilty plea is only palatable, and only constitutional, when it is made voluntarily, knowingly, and intelligently.  A Court should never affirm a guilty plea that was not made with an understanding of all the consequences –  even if the sentence at the end turned out to be not so bad.

Of course, underlying this analysis is Mr. Stockwell’s crimes:  He plead guilty to statutory rape in the first degree after admitting he had sexual contact with a minor.  He challenged this plea through the PRP process after he was later convicted of first degree child molestation. Because of the guilty plea at issue and another conviction for indecent liberties, the petitioner was given a persistent offender sentence of life without possibility of parole.

Washington Supreme Court Justices are subject to popular elections and face the prospect of attack advertising.  It would be difficult to imagine any situation in which a Supreme Court Justice would safely be able to vote in favor of a convicted sexual offender of children. Where such a petitioner is asking for ambiguous rules to be clarified in a highly technical area of law, there is no chance the petitioner will succeed.  The best result a petitioner could hope for is to preserve an issue for federal habeas review and hope the Ninth Circuit judges are intrigued enough by the federal question presented to push the boundaries of AEDPA in his favor.

Washington grants prisoners the right to counsel for their first personal restraint petition after their conviction is finalized.  These PRP attorneys are ethically bound to advance arguments for relief that have legal merit, when they are well aware that any Judge who adopts those arguments is likely going to lose his or her job.  The collateral consequence of losing a case at the Washington Supreme Court is to create unfavorable law that will resonate throughout the criminal justice system.  In this case, Stockwell has produced a Supreme Court ruling that a defendant is not prejudiced by making a guilty plea on the basis of a fundamental mistake about the potential consequences of such a plea.  One could be forgiven for thinking that, all in all, it would have been better had Stockwell not submitted this PRP to the Supreme Court and let a petitioner with a more palatable criminal history advance the argument instead.

As long as Supreme Court Justices face electoral pressure to be tough on crime, there are going to be some classes of crimes for which personal restraint petitions will simply never be granted.  Until the Court can ensure that it will safeguard due process regardless of the substantive crime at issue, it would be more honest, a wiser use of state resources, and more conducive to reasoned legal analysis if the State rescinded its promise of counsel for personal restraint petitions.  As it stands, the right to counsel in personal restraint petitions for prisoners convicted of sensational or heinous crimes is an empty right because there is practically no avenue of relief for them.