I did not oppose the death penalty when I first came to the bench in 1985. I thought death was an appropriate punishment for people who had committed horrific crimes and had thereby forfeited their right to live among us. At that time I was most concerned about the possibility of escape, but I came to learn that prison escape is not a serious concern in Washington.
My view of the death penalty changed after I presided over a capital case. The defendant, who murdered two victims, had a low IQ, just a few points above 70 Washington law prohibits imposition of the death penalty on defendants with an IQ below 70. It appeared that he had been encouraged by a friend to commit the crime, though there was not enough evidence to charge the friend. I found myself enormously relieved when the jury was unable to reach a unanimous verdict on death, and he therefore was sentenced to life in prison without the possibility of parole. In my judgment, death would have been an inappropriate sentence.
The experience made me realize that despite the best efforts of prosecutors, defense attorneys, judges and juries, the death penalty cannot be made perfect because every step of the process involves human judgment. There will always be differences of opinion, and there is no way that we, as jurors and judges, can decide a perfect and just verdict. Because we cannot do this, we do not have the right to make a decision about whether a person should live or die. Since that experience, I have come to believe that the death penalty should be abolished.
My greatest concern is disproportionality. University of Washington Professor Katherine Beckett’s recent study, The Role of Race in Washington State Capital Sentencing, showed significant geographic disparity across counties in whether prosecutors charged the death penalty in aggravated murder cases. Though I believe prosecutors are honorable people making decisions based on their best judgment, that judgment differs from county to county. It is profoundly unfair for someone to be charged with the death penalty in one county but not in another for the same crime. The study also showed racial disparity. While the study established that prosecutors are not race-biased in charging the death penalty, it showed that jurors are three times more likely to impose the death penalty on African-American defendants than on white defendants. That kind of racial disparity is intolerable.
In King County, Washington’s most prolific serial killer, Gary Ridgway was not charged with the death penalty in return for disclosing information about the location of his victims. The prosecuting attorney made a difficult but humane decision that was very important for the victims’ families. It is difficult to legitimately sentence anyone else to death in Washington State when Ridgway was given life in prison.
Wrongful convictions are an enormous concern. Innocence Projects around the nation have uncovered many instances of innocent people being wrongly convicted, including at least a dozen here in Washington. I think our state has a strong legal system, but despite the efforts of everyone involved in the system, wrongful convictions occur. The advent of DNA evidence has been helpful, but DNA evidence is often unavailable. Even when DNA is available, its accuracy can be compromised due to the manner in which it was collected or stored, or in the way the data were analyzed. Ultimately, there is no way to be confident that you are not convicting an innocent person.
Another critical concern is the very high cost of seeking the death penalty. It costs on average about $5 million to prosecute a death penalty case, whereas keeping the same defendant in prison for life—assuming 50 years at $40,000 a year—would only cost $2 million. The money saved from this costly process would be better spent on education or other true budget priorities in Washington State.
I do not think the current system can be reformed. Despite best efforts to reform the process, the death penalty will always be subject to geographic and racial disparities, factual errors, and errors in decision-making. Nor can costs can be reduced by limiting appeals or capping expenses. Before the government takes someone’s life, the legal process must be made as perfect as possible and appeals are critical to that effort. The death penalty needs to be abolished in favor of life in prison without the possibility of release.
Defendants deserve to be punished for committing horrific crimes, but life in prison without the possibility of parole incapacitates the defendant, protects society, and is an adequate punishment. We would not expect to see a surge in murders after eliminating the death penalty. As a judge who has sentenced many hundreds of people, I can say that punishment is not something a defendant typically considers. Rather, defendants who commit crimes believe they will not be caught. If a defendant chooses to commit a murder, the threat of a harsh penalty will not deter him.
Abolishing the death penalty will improve Washington’s criminal justice system in several ways. Cost savings can be used for true budget priorities, cases will be finalized sooner – sparing families from additional trauma – and the geographic and racial unfairness inherent in the process can be eliminated. I applaud Governor Inslee’s death penalty moratorium. Most first-world countries, and now 18 U.S. states, have abolished the death penalty. I would like Washington to stand with them.