By Mark Larrañaga

In a recent capital case, Glossip v. Gross, United States Supreme Court Justice Breyer questioned the continued validity of the death penalty. Joined by Justice Ginsberg, Justice Breyer concluded that in light of “almost 40 years of studies, surveys, and experience,” all of which strongly indicate that the experiment to administer the death penalty in a constitutionally permissible manner has failed.

Next year, Justice Breyer’s observation will be brought closer to home, when the Washington Supreme Court will hear two death penalty appeals and be asked whether Washington’s death penalty system has produced the same results after nearly four decades.

Applying the concerns expressed by Justice Breyer to Washington’s death penalty history, the only conclusion reached is that Washington’s system is worse.

Justice Breyer pointed to the unreliability in death sentences. He noted, for instance, that between 1973 and 1995 courts identified prejudicial error in 68% of the capital cases.   Washington’s history is more egregious. Since 1981, the year Washington’s current death penalty took effect, there have been thirty-three death sentences imposed. Of these cases, nine are currently on appeal, one suicide while on appeal, and twenty-four have concluded the appellate process – with eighteen resulting in a reversal. Thus, under Washington’s death penalty system, 75% of all death sentences imposed have been reversed due to prejudicial error. These errors are not the result of an isolated situation that with focus and resources can be fixed. Instead, the prejudicial error has seeped throughout the entire death penalty process caused by prosecutorial misconduct, ineffective counsel, judge and jury error, and changes in the law. As such, the errors inherent in death penalty cases will not go away anytime soon.

Justice Breyer, referring to the evolving standards of decency, also noted that in more than 60% of the States there is effectively no death penalty and only three States account for 80% of all executions; concluding that “[j]udged in that way [consistency of direction of change] capital punishment has indeed become unusual.”

The “consistency of direction of change” in Washington has been constant and swift.

From 1981- 1985, fifteen of Washington’s thirty-nine counties never sought the death penalty. Thus, the death penalty was effectively non-existent in roughly 38% of Washington counties. The number of counties with effectively no death penalty has climbed to 95% over the last five years. Presently not a single county is seeking the death penalty. And in the unusual situation when the death penalty is being sought, it is not being imposed. Take the last three death penalty cases for example. All three death penalty cases took place in King County, and none resulted in a sentence of death. A split jury imposed life sentences in State v. McEnroe. A few months later, a jury deliberated for less than an hour and returned a unanimous sentence of life in prison without parole in State v. Monfort.   In the third case, after initially seeking the death penalty against McEnroe’s co-defendant, Michele Anderson, Dan Satterberg withdrew it after the jury rejected the death penalty in the other two cases.

Finally, Justice Breyer concluded that despite court’s hope and legislative tinkering, it is increasingly clear that the death penalty continues to be imposed arbitrarily. Washington’s death penalty experience demonstrates the same results. A recent study of Washington’s death penalty system by University of Washington Professor Katherine Beckett and Ph.D. candidate, Heather Evans, concluded characteristics other than the case – like county – may dictate whether the death penalty is sought or imposed. The University of Washington report is not alone. In 2007, the Washington State Bar Association reviewed the administration of Washington’ death penalty and reached similar conclusions. This year a study conducted by Seattle University on the costs associated with Washington’s capital punishment also raised questions about its fairness.

In 2012, Washington State Supreme Court Justice Wiggins expressed a “deep concern” over the apparent racial bias aspect of Washington’s death penalty. Justice Wiggins noted that in light of the history of Washington’s death penalty, the Washington Supreme Court’s examination of the impact of race has on the administration of Washington’s death penalty is “inescapable”, but noted being judges – and not statisticians – competent experts were needed to thoroughly evaluate the significance. The University of Washington study responded to this invitation and studied the role race plays in Washington’s death penalty system. The report found that racial bias plagues Washington’s death penalty, concluding that “a comparatively large proportion of black defendants were sentenced to death.” In fact, it determined that black defendants are 4.5 times as likely to be sentenced to death than white defendants.

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