Thursday's ruling by the Washington state Supreme Court, combined growing bipartisan support to end capital punishment, mark a major shift for a state that has had some type of death penalty going back to territorial days.
OLYMPIA — In previous eras, when the courts have struck down the death penalty in Washington state — it’s happened three times — lawmakers have come back to resurrect capital punishment in a new law.
But Thursday’s state Supreme Court decision against the state’s current death-penalty statute — grounded in findings that capital punishment is racist and unfairly applied — may end serious debate in Olympia on the topic once and for all.
Crafting a constitutional version of the law in light of the Washington Supreme Court’s unanimous ruling would be difficult, according to key state lawmakers from both political parties, along with one law professor.
State officials have been inching toward a repeal of capital punishment, anyway.
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In 2014, Gov. Jay Inslee imposed a moratorium on executions. And, after years of anti-death penalty legislation languishing in Olympia, the state Senate this year passed a bill to repeal capital punishment. That measure stalled in the state House.
Those developments, combined with Thursday’s ruling, mark a major shift for a state that has had some type of death penalty in place stretching back to its territorial days.
“This incredible, important and dramatic ruling provides legal justification and rationale to support the broad political momentum for full and complete replacement of the death penalty in Washington with life imprisonment without parole,” said Sen. Reuven Carlyle, D-Seattle.
“This has been a long journey,” added Carlyle, who has sponsored bills over the years to repeal the current version of the law, which was enacted in 1981.
The court’s latest ruling found Washington’s statute unconstitutional “because it is imposed in an arbitrary and racially biased manner.”
Though the decision included two different opinions, “All nine justices of our state Supreme Court agreed that our death-penalty statute as applied is unconstitutional,” said state Attorney General Bob Ferguson.
The lead opinion left open the possibility that lawmakers could enact a new law, according to Bob Boruchowitz, a former Seattle public defender and a professor from practice at the Seattle University School of Law.
But, “Given the Court’s concern about the racially disproportionate application of the death penalty, and the experience it cites, I cannot imagine how the legislature could craft a statute that would be constitutional,” Boruchowitz wrote in an email.
Sen. Mike Padden, R-Spokane Valley, reached a similar conclusion.
With 39 different county prosecutors in Washington, “You’re never going to have equal results in these things,” said Padden, a former judge and current ranking Republican on the Senate Law and Justice Committee.
“I do think it’s going to be very difficult to craft a new statute and actually get that passed,” added Padden, though perhaps it could pass as a ballot initiative.
The ruling disappointed Padden, who said he supports the death penalty in rare circumstances. He also described it as an effective tool for prosecutors who are negotiating plea deals.
Even before Thursday’s ruling, state legislators and officials had been inching toward a repeal of the capital-punishment statute. Measures to repeal the law have slowly gained bipartisan support. Sen. Maureen Walsh, R-Walla Walla, sponsored this year’s repeal bill that passed the Senate.
A similar bill introduced in the state House this year drew two GOP co-sponsors.
Rep. Laurie Jinkins, D-Tacoma, and chair of the House Judiciary Committee, said two things have changed the debate over capital-punishment laws in Olympia.
One was the shift toward using DNA evidence that has resulted in dozens of instances around the country where people convicted of crimes were ultimately exonerated, said Jinkins. The other was hearing from some family members of victims whose perpetrators are on death row.
“When I first started there was this presumption that all family members supported the death penalty,” she said. But some of those family members have found the death-penalty process, which can involve years of appeals, re-traumatizing, she said.
Jinkins couldn’t guarantee that the House would pass a repeal bill in 2019, but she said unconstitutional laws should be taken off the books.
Others aren’t as enthusiastic. Rep. Dave Hayes, R-Camano Island, and a sergeant with the Snohomish County Sheriff’s Office, said he has “real reservations about the death penalty.”
“I’m a pro-life sort of guy, end of life and beginning of life,” said Hayes. But, “we have to have some sense of justice for those families and survivors.”
Given Thursday’s ruling, he said, “Why do we need legislation now? We have case law.”