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Time for a Hard Look at the Death Penaltyby Kenneth H. Davidson New questions and information about the death penalty have been coming from many different quarters. Last year, New Jersey repealed the death penalty after a legislative study found it to be ineffective and more costly than a life sentence without parole. Bills to repeal the death penalty passed one house of the New Mexico and Montana legislatures and fell one vote shy of passing the Nebraska Legislature. Citing racial disparities, inadequate indigent defense, and other irregularities identified in its studies of death penalties in eight states, the American Bar Association called for a nationwide moratorium on executions last October and for state-by-state reviews of the death penalty.(1) Reflecting opinion from around the world, the United Nations General Assembly passed a resolution in December by a two-to-one margin asking all governments to impose “a moratorium on executions with a view to abolishing the death penalty.” In Washington, the State Supreme Court tossed to the Legislature the moral question: Should the State of Washington execute another defendant when it has declined to execute the Green River Killer, who murdered 48 women in the most horrific criminal career in state history? Now is the time for Washington to answer this and other new questions about the death penalty and decide its course for the future. How has the death penalty worked in Washington? Last year, the Washington State Bar Association published the most comprehensive study to date on the application of the death penalty in Washington and its costs to state and county governments.(2) Here, then, is a brief history of the death penalty in Washington since it was re-introduced in 1981. The death penalty may be sought in Washington in aggravated murder cases as an alternative to a sentence of life imprisonment without parole, except where the defendant is a minor or mentally retarded. Between 1981 and 2006, there were 254 aggravated murder cases where the death penalty could have been sought. Prosecutors elected to seek the death penalty in 79 of those cases. Juries returned death sentences in 30 cases. Of the 30 death sentences handed down, 20 have been reversed on appeal. Six defendants are on death row pending appeal and clemency proceedings. Four cases have resulted in executions. Three of the four executions have involved “volunteers” — defendants who have waived appeals and allowed themselves to be executed. Has the death penalty been fairly and evenly applied? This question was at the heart of State v. Cross,(3) in which the defendant challenged the imposition of the death penalty on him when it was not imposed on the Green River Killer, Gary Ridgway. In a plea bargain, which had broad support among law-enforcement officials and the families of his victims, Ridgway was allowed to avoid death in exchange for information, which resolved all the unsolved Green River murders. In light of the life sentence given the state’s worst murderer, Mr. Cross argued that it would be unfair and unequal treatment to execute other defendants who were not serial killers and had no information about unsolved murders with which to bargain away a death sentence. In upholding his death sentence, the majority opinion of the State Supreme Court characterized Cross’s argument as a moral issue to be decided by the people and not grounds to rule the death penalty unconstitutional. The dissenting opinion, signed by four justices, reviewed the sentences in aggravated murder cases and found no rational explanation for why some defendants have received death sentences and others have not. The dissent further observed that the worst mass murderers in the state’s history have escaped the death penalty — Ridgway (48 murders), Yates (15 murders), Mak (13 murders), Ng (13 murders), and Rice (4 murders). The dissenting justices asked, if the death penalty is not imposed in these cases, “on what basis do we determine on whom it is imposed?” That weighty question the Court has left for the Legislature to decide. The apparent racial disparities in the application of the death penalty was one of the major reasons cited by the American Bar Association for its call for a moratorium on execution.(4) Nationally, 42 percent of the individuals who received a death sentence between 1977 and 2005 were black,(5) while blacks comprised less than 10 percent of the population. Since 1981, 18 percent of the defendants in death penalty cases in Washington have been black, yet blacks have comprised only 3.2 percent of the population in the state.(6) These statistics are alarming and should trigger further inquiry into whether the race of the defendant and/or the victim impacts the application of the death penalty. Is it applied evenly across the state? Many smaller counties in the state are in precarious financial condition, and a prosecutor’s decision to pursue very costly death penalty litigation could cripple other programs in the county. At least one small county prosecutor is on record as stating that he would not seek the death penalty, because his county could not afford it.(7) There are six smaller counties where there have been aggravated murder cases, but where the death penalty has never been sought. Are we developing a system in which the death penalty will be applied only to defendants in larger, well-heeled counties? To avoid such an uneven system, the WSBA Committee on Public Defense Death Penalty Subcommittee and Board of Governors both unanimously recommended that the Legislature provide state funding of all prosecution, defense, and court costs in aggravated murder cases, so that county finances would have no influence on whether or not the death penalty is sought in any case in the state. Without that state commitment, a two-tier system is likely to develop, if it has not already. What does it cost to litigate death penalty cases? Of necessity, death penalty cases are costly. In a country founded on the rule of law and the right of the individual to life and liberty, the greatest injustice would be the execution of an innocent individual by the state. The challenge then is whether the death penalty can be administered without error. Unfortunately, the criminal justice system is dependent entirely on the honesty, competence, and judgment of fallible humans who are the witnesses, jurors, lawyers, and judges in capital cases. The fallibility of the criminal justice system is demonstrated to us regularly by the news stories of exonerations through DNA testing of persons wrongfully convicted of serious criminal charges. The Innocence Project reports that more than 200 convictions across the country have been overturned through DNA testing, including 15 death sentences. In his new book, The Innocent Man, John Grisham describes the chilling, true story of Ron Williamson, an innocent man who came within hours of execution. The tragedy of Mr. Williamson’s wrongful conviction was a deadly confluence of local politics, bad police practices, an overzealous prosecutor, and an incompetent judge and defense attorney. To safeguard against a wrongful conviction, elaborate rules and procedures have been developed for death penalty cases. The special procedures and the costs of death penalty litigation are described in detail in the WSBA Death Penalty Report. My conclusion from the report is that it costs an extra one million dollars, or more, to litigate a case to obtain a death penalty, rather than a sentence of life without the possibility of parole. Based on the results over the last 27 years, the prosecutor who pursues that expensive alternative has about a six percent chance of success. Does the death penalty serve a significant public good, which justifies its costs? This question may be answered by an examination of the possible public benefits of executing a defendant. The death penalty may be thought to be the ultimate punishment, but in testimony before the State House Judiciary Committee, Mark Prothero, who represented Gary Ridgway, questioned the function of the death penalty as a form of punishment. He described Mr. Ridgway’s solitary confinement in a windowless, six feet by 10 feet cell, where he serves his life sentence without possibility of parole. Twice a week he is taken to a larger, windowless room for an hour of exercise. He has no human contact, except when the guards bring him food or take him to exercise. He has no hope of this routine changing. Mr. Prothero asked: “Is the death penalty really the worst punishment?” He suggested that the answer to that question may lie in the fact that three of the four executions in Washington over the last 27 years have been “volunteers” who waived their appeals and apparently preferred death to a life in prison. Indeed, the number of the “volunteers” for execution raises the question whether sometimes the death penalty functions not as punishment, but as a form of state-assisted suicide. Particularly bothersome is the case of James Elledge. He killed a Lynnwood woman. He then told the police that he wanted the death penalty and instructed his trial attorney to tell the sentencing jury that he did not deserve leniency. In the mandatory review before the State Supreme Court of the jury’s death sentence, he directed his attorney to join the prosecutor in asking that the sentence be upheld. He wrote from his cell that he hated himself and did not want to go on living. His sentence was upheld and he was executed. Some may think that the death penalty is intended to benefit the families of the victims of aggravated murder. If that is the goal, millions of dollars have been spent in Washington on death penalty litigation over 27 years, and only four families have received whatever benefit the death penalty provides. Certainly, those millions could have been better spent by providing services and support directly to families of murder victims, if the public objective is to provide benefits to these grieving families. Moreover, the connection between the death penalty and benefit to the victim’s family is uncertain. There is no provision in the statute giving the victim’s family any say in whether the death penalty is sought. Victims’ families who find no benefit in the death penalty cannot stop it. In the Elledge case, the victim’s brother told a reporter he had confused feelings about the death penalty, because Elledge got the death he sought.(8) One may expect that the broader public benefit of the death penalty would be deterrence of murder through the threat of the death penalty. However, the deterrent effect of the death penalty is hotly debated. If the death penalty has a deterrent effect, death penalty opponents argue, then the homicide rates should be low in the two states which have held the most executions — Texas and Virginia. From 1977 through 2005, Texas executed 355 individuals and Virginia executed 94.(9) Together, these two states have accounted for 45 percent of the executions in the country since the U.S. Supreme Court allowed the reinstatement of the death penalty in 1976. Yet, both Texas and Virginia had a murder rate of 6.1 per 100,000 population in 2005, which was 10 percent above the national rate.(10) By comparison, death penalty opponents point out, the average murder rate in states without a death penalty was 2.8 per 100,000, which was half the national rate. Of the 12 states without a death penalty, 11 had murder rates below the national rate, including the three states with the lowest rate of 1.3 per 1,000.(11) Proponents of the death penalty point to several recent statistical studies which find a deterrent effect. One study concludes that each execution deters five murders,(12) while another says 18 murders are deterred by an execution.(13) These studies have been sharply criticized by other scholars, who point to flaws in the data and methodology and the problem with drawing conclusions across the nation when a large portion of the data comes from Texas.(14) One critical study not only debunks a finding of a deterrent effect by such studies, but uses their data to demonstrate that executions may possibly lead to more homicides.(15) Perhaps most interesting to Washington may be the new study by Joanna Shepard, who co-authored a famous, earlier study finding a deterrent effect. In a new state-by-state data analysis, she finds that executions have deterred murder in six states, which have conducted a large number of executions. However, Washington is among 13 states with few executions where her study finds that executions have resulted in an increase in murders under what she calls the brutalization effect. She observes that the occasional state-sponsored killing incites private killings and increases, rather than deters, murder. She advises that “to achieve deterrence, states must generally execute many people. If a state is unwilling to establish such a large execution program, it should consider abandoning capital punishment.”(16) Professor Fagan of Columbia University, another death penalty expert, has stated it more bluntly, “A death penalty that is almost never used serves no deterrent function, because no would-be murderer can expect to be executed.”(17) While Professor Shepherd and Professor Fagan have been on opposite sides of the deterrence debate, they would likely agree that Washington, which conducts an execution on average once every seven years, should not expect to deter murder through its death penalty. The foregoing questions deserve in-depth study. The WSBA has recommended that the Legislature fund a thorough, multi-disciplinary study of the death penalty. Bills to fund such a study passed out of the judiciary committees of both the State House and Senate in 2007, but died in the House Appropriations Committee. Those study bills need to be re-introduced and passed in the next legislative session. An in-depth study by experts in the many fields touching on the death penalty would greatly inform a public discussion on whether the death penalty should be continued. It would help us answer the essential questions of whether the death penalty serves a public good, whether it can be fairly applied, and whether it is the best use of tax dollars. Unless the Legislature can answer these questions clearly in the affirmative, it should not waste tax dollars on death penalty litigation or ask jurors, judges, and lawyers to spend their time and energies on this most difficult endeavor. Indeed, without a sound rationale for the death penalty, the State of Washington may be engaged in occasional, ritualistic killing only to satisfy the dictate of a prior generation that there be a death penalty. It is time for the current generation to answer the hard questions arising from the application of the death penalty over the last 27 years and decide the course of the death penalty in Washington for the 21st century. Ken Davidson chaired the WSBA Committee on Public Defense Death Penalty Subcommittee and served on the WSBA Board of Governors in 2000–2003. In 2007, the WSBA recognized his work on the Death Penalty Study and longtime service by giving him its Award of Merit, the WSBA’s highest honor. He practices civil law with Davidson, Czeisler & Kilpatric, P.S. in Kirkland. NOTES
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