(The Center Square) – Months before the 2026 legislative session, superior court judges outlined three “defects and omissions” in Washington criminal law’ none of which were addressed by the Legislature, recently obtained public records show.
Chief Justice Debra Stephens sent the report to Gov. Bob Ferguson last November. She said the rest of the Washington Supreme Court had nothing of concern to report, and neither did the Court of Appeals.
The Superior Court Judges’ Association, on the other hand, identified three issues in a report obtained by The Center Square: “age of consent,” jury instructions in robbery cases and multicounty offenders.
The public record shows that the Legislature didn’t introduce bills last session to address the concerns.
“Overall, win-win legislative changes for the criminal justice system,” SCJA officials wrote in a letter to Stephens dated Oct. 13 of last year, proposing how state lawmakers could reduce delays and “unnecessary” costs.
Kittitas County Superior Court Judge Chris Herion submitted the most detailed proposal in the report.
He said someone was sentenced to state prison while still facing unresolved felony charges in another county. That defendant wanted to address their other case, but state law required the Department of Corrections to put them into custody first, creating delays and transportation and administrative costs.
“The Prosecutor presented the Court an agreed order to send the felony offender to the next county before being sent to DOC,” the report explained. “However, Kittitas County Corrections advised current law mandated the felony offender be sent to DOC first under this Court’s Warrant of Commitment.”
SCJA proposed allowing trial judges to send offenders directly to another county jail for pending felony proceedings before DOC takes them to prison after those cases are resolved. The report suggests that could resolve cases faster, speed up rehabilitation, reduce “unnecessary” transportation/administrative costs, court filings, escape opportunities and help ensure “speedy justice” for victims and defendants.
SCJA cites Whatcom County Superior Court Judge Lee Grochmal as submitting the other two concerns.
The report says laws making it illegal to communicate with a minor for immoral purposes define the age threshold as a person under 18 years old. However, the crimes of child molestation and rape of a child in the third degree set it as younger than 16 years old, creating a discrepancy for the trial courts.
“So under the current scenario, above, it is legal to have sex with a 16-18 year old but illegal to talk about it, which begs the question of how do you obtain valid consent?” according to the SCJA report.
Grochmal’s other concern questioned potentially unnecessary jury instructions tied to robbery cases; however, unlike the other two, this one centers on something lawmakers or the judiciary could clarify.
She raised an issue with two of the six elements that jurors must find for first-degree robbery charges.
The SCJA report argues that Elements 3 and 4 create confusion over the use of force by a defendant.
Element 3 says the “taking was against the person’s will by the defendant’s use or threatened use of immediate force, violence, or fear …” Element 4 says that “force or fear was used by the defendant” to “obtain or retain possession of the property or to prevent or overcome resistance to the taking …”
“In a case that I just tried, the force was alleged to have been used to retain the property, satisfying Element (4) but because the initial taking was not through the use of force (as required in Element (3) but not in the statute), the jury may have felt obliged to acquit,” Gorchmal explained in SCJA’s report.
Jury instructions are written by members of the Washington Pattern Jury Instruction Committee, but state lawmakers could also amend the relevant statute to provide trial court juries with more clarity.
What’s the hold up?
The Washington Administrative Office of Courts submitted an agency request at the end of 2025 for three bills in the 2026 session, two of which passed; however, AOC did not include SCJA’s concerns.
“You are correct, the Administrative Office of the Courts did not propose legislation and is not planning to do so in the future,” Wendy Ferrell, associate director of communications and public outreach, wrote in response to an email from The Center Square asking if AOC requested any bills for the 2025 report.
Still, state lawmakers passed legislation in 2025 at AOC’s request to address issues in a 2023 “defects and omissions” report. They also passed legislation in 2023 at the Attorney General’s Office’s request to address issues identified in the 2022 “defects and omissions” report, according to state bill reports.
The 2025 “defects and omissions” report reached Ferguson two months before the 2026 session, but neither the Democratic majority nor Republican lawmakers proposed fixes this year.
In the past, they have taken up issues from the reports a year or two after receiving them, which could happen again.
Lawmakers did unanimously pass laws concerning sexually explicit depictions of minors and authorizing Court of Appeals bailiffs to conduct threat assessments. They also passed a law with almost complete bipartisan support around intimidation and violence against school officials.
Ferguson’s office did not respond to The Center Square’s request for comment before publication.
“It is not our standard practice to propose legislation with regards to the defects and omissions – our role is to report the errors and defects in the law to the Governor,” Ferrell emailed The Center Square.