Death penalty hangs in balance as debate heats up

Four executions have taken place at the Washington State Penitentiary under the state's current law.

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WALLA WALLA — Want to start a good argument?

Begin talking about the pros or cons of the death penalty. Somebody nearby probably will be on the opposing side.

Few public policies find such staunch supporters and opponents as the issue of capital punishment.

And the debate seems to have heated up in recent months.

Tongues started wagging in the community last December as staff members at the Washington State Penitentiary — for the first time since 2001 — readied for an execution.

Two additional lethal injections were scheduled for March.

"Is it finally going to happen?" enthusiasts wondered aloud as the times drew nearer. "Are we finally going to get justice?"

Those who disagree with the death penalty seemed quieter, content to watch the clock silently and count on the judicial system to intervene.

Since the current capital punishment law was enacted in 1981, condemned men wanting at least one last-minute reprieve have consistently been given one. Courts postponed indefinitely all three of the most recently scheduled executions — two at the 11th hour.

It’s just very hard for us to kill someone in this state. The law is narrowly drawn, so only a fraction of people accused of murder can even be considered for the death penalty. Circumstances have to be heinous and considered "aggravated murder."

Background of current law

"Since 1981, there have been 7,467 homicide cases filed in Washington," according to a December 2006 report by a subcommittee of the Washington State Bar Association. "Of those, there have been 270 convictions of aggravated murder. A death sentence was not an option in each of these cases, since a sentence of death is not permitted when the defendant is a juvenile or deemed mentally retarded.

"Of the 270 currently filed trial reports, 254 were ‘death eligible,’ meaning that a sentence of death was a sentence option. Of the death-eligible convictions, there have been 79 cases in which the elected prosecutor had filed a death notice. Of the 79 ‘death sought’ cases, a sentence of death was imposed by a jury in 30 cases." (Some sources list 31 cases, including one defendant who was a juvenile. The U.S. Supreme Court later abolished the death penalty for juveniles.)

Four executions have taken place at the Washington State Penitentiary under the state’s current law. All occurred between 1993 and 2001. Three of the men were "volunteers," having waived their final appeals.

Regarding appeals overall, the subcommittee report says, "The majority of death sentences imposed have resulted in a (court-ordered) reversal. Nineteen cases have resulted in the conviction and/or the death sentence being reversed. Of these 19 reversals, nearly all have resulted in a sentence of life without the possibility of parole — the only other sentence option for an aggravated murder conviction."

(The number of reversals now is 18 because of subsequent court actions after the subcommittee report was completed.)

That leaves eight men currently on death row.

In contrast, according to a 2004 report by the Washington Death Penalty Assistance Center, "Every completed non-death penalty (aggravated murder) appeal resulted in the conviction, and thus the sentence, being affirmed."

The report adds that the average length for a non-death penalty appeal in cases studied early this decade was two-and-a-half years. The average length of appeals for those currently on Washington’s death row has reached more than a dozen.

Costs

The Bar Association report says defense costs in death penalty appeals average $100,000 more than for other murder cases, plus an additional $137,000 to litigate other types of appeals known as personal restraint petitions.

That’s after a trial, which the report notes is "estimated to generate roughly $470,000 in additional costs to the prosecution and defense" than an aggravated murder trial without the death penalty. Additional costs include $47,000 to $70,000 for court personnel.

That totals at least $754,000 in additional costs to try a death penalty case, most of which is borne by the county in which the trial occurs even though there is a process to petition the state for reimbursement.

And the figure doesn’t include about $100,000 in costs associated with preparations for an execution.

All the extra millions spent on death penalty cases over the years have resulted, in practical terms, in the execution of one man against his will. Charles Rodman Campbell died on the gallows in 1994. His case had been on appeal for 11 years.

The Bar Association estimates are conservative in comparison to numbers from studies conducted in other states. The California death penalty system costs taxpayers $114 million a year more than keeping convicts locked up for life, according to a 2005 article in the Los Angeles Times.

And the Dallas, Texas, Morning News reported in 1992 that a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years.

Excessive cost is one expressed motivation behind two bills introduced early this year in the Washington state Legislature that would have abolished the death penalty.

(Neither was approved into law, but they will be reintroduced automatically next year, the second year of the current biennium.)

Under the proposals, anyone convicted of aggravated first-degree murder would be sentenced to life in prison without the possibility of parole.

In fact, the title of House Bill 1909 is: "An act relating to reducing criminal justice expenses by eliminating the death penalty in favor of life incarceration."

And the staff summary of public testimony on the similar Senate Bill 5476 states: "We need to take the money we spend on the death penalty and put it into victim resources."

But death penalty supporters often speak of the money that would be saved by killing murderers rather than keeping them locked up for years or life. The state now spends an average of about $37,000 annually to house an inmate at a major institution.

The Sacramento-based Criminal Justice Legal Foundation says that costs to house death-row inmates can be reduced by reforming the appeals process, shortening the time from sentencing to execution to a period of five years such as in Virginia.

Also, the foundation recently released results of a study that points to a cost-saving effect of having the death penalty available.

"In states where the death penalty is the maximum punishment, a larger number of murder defendants are willing to plead guilty and receive a life sentence," according to a news release about the study. "The greater cost of trials where the prosecution does seek the death penalty is offset, at least in part, by the savings from avoiding trial altogether in cases where the defendant pleads guilty."

In analyzing data from 33 large urban counties throughout the country, the study found murder convictions with sentences of 20 years or more were obtained through guilty pleas in 18.9 percent of cases in states that have a death penalty compared to 5 percent of cases in states without the death penalty.

"Without the death penalty, there is no incentive to waive trial and receive a life sentence," the foundation writes in an issue summary on its Web page. "Pleas with life or long sentences are four times as common in states with the death penalty."

Costs also are decreasing because prosecutors in this state are seeking the death penalty in fewer cases. According to the 2006 Bar Association report, "Over the last 10 years there have been fewer death notices filed by prosecutors and fewer death penalties imposed by juries than over the previous 10-year period."

Five death penalty cases currently are awaiting trial in Washington State.

Proportionality

Death penalty opponents often claim the laws are discriminatory in that they target racial minorities and the poor for execution. Statistics nationwide show that blacks make up about 12 percent of the population, but more than 80 percent of those on death row. Also, 95 percent of condemned inmates could not afford legal representation.

However in Washington state, 65 Caucasians have been executed since 1904 compared to seven blacks, two Asians, two Hispanics and one Eskimo.

Five Caucasians and three black men currently are on death row.

Most Americans — 54 percent — believe capital punishment is applied fairly, according to a Gallup poll last year. And a 2000 report prepared by Pamela B. Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys, titled "Shattering Myths" tries to destroy the argument of racial disproportionality — at least in this state.

The study includes racial data and concludes: "A detailed analysis of the reports of trial judges that are on file with the Washington Supreme Court do not reveal a pattern of imposition of the death penalty based upon the race of the defendant or the victim."

She also points to a similar finding by the high court in 1995, in addition to statistics showing no racially discriminatory pattern.

For instance, the death penalty had been imposed on 18 white defendants compared to eight non-whites as of 2000. And 16 percent of men convicted of aggravated murder for killing white victims were sentenced to death as opposed to 13 percent of defendants with non-white victims.

But separating out black defendants leads to a different conclusion, according to a 2004 report by Mark A. Larranaga, director of the Washington Death Penalty Assistance Center.

In a study titled "Where Are We Heading," Larranaga writes: "For instance, death has been imposed at a higher rate against African-Americans as compared to Caucasians. Additionally, death is sought and imposed at a significantly lower rate when the victim is African-American. And finally African-American defendants charged with killing a Caucasian victim have a significantly higher percentage of death notices filed and death sentences imposed."

Larranaga also reported that geographic location plays a disproportionate factor in administration of the death penalty. Death is sought and imposed at a higher rate in Washington’s four largest counties — King, Pierce, Snohomish and Spokane. In fact, the five pending cases are in King, Spokane and Pierce.

"Since 1981, 25 of Washington’s 39 counties have had a least one aggravated first-degree murder conviction. Although 64 percent of Washington counties have had at least one death-eligible conviction, death notices have been filed in less than half of the counties, thus the majority of Washington’s counties (57 percent) have never filed a death notice.

"Death sentences have been imposed in only a handful of Washington’s counties. A death sentence has never been imposed in 74 percent of Washington’s counties."

Including Walla Walla.

Since 1904, only four of the 77 men executed in Washington state committed their crimes in Walla Walla County. The last man from here to be put to death was rancher Earl Talbott in 1939.

There have been several local murder cases since the present law was enacted in 1981.

"State law says the death penalty is to be imposed under certain circumstances so it’s something I have to consider," said Jim Nagle, the county’s prosecuting attorney since 1989.

But the death penalty never has been sought here under the present law (even though aggravated first-degree murder charges have been filed). Either the crime didn’t warrant the ultimate penalty, the defendant was a juvenile and ineligible for the death penalty or a case was resolved with a guilty plea to a lesser charge.

"If there was an aggravating factor the rest of the case was too weak," Nagle explained. "You have to make sure you have a solid first-degree murder case before you decide what penalty you’re going after."

He dismisses the argument that the death penalty is administered disproportionately based on the fact that most filings are in large counties.

"If we had the kinds of deaths and kinds of people roaming around (as larger counties do)," Nagle said. "To compare a population of 50,000 to a population of a million. You can’t do it."

John R. Henry, the former prosecutor of Garfield County, once reportedly said he would never file a death penalty case there because he couldn’t afford to prosecute one — a quote that Larranaga also latches onto to prove unfair treatment.

Nagle agrees cost can be a consideration. "It depends on the case," he said. "It depends on what you’re getting," explaining that other factors to weigh would be the strength of the case, the nature of the murder and a defendant’s criminal history.

Overall, Nagle has no serious concerns with the capital punishment law in this state.

"If you say this is the limit of behavior we will tolerate, and the U.S. Supreme Court says to the state your procedures are valid, then what’s wrong with it?" Nagle said.

Morality and religious positions

The nation is split when it comes to support for the death penalty. A Gallup poll in October 2008 found 64 percent of Americans favored capital punishment for someone convicted of murder, while 30 percent opposed it.

The same survey revealed that 48 percent believed it is not imposed often enough, 23 percent were of the opinion it is imposed about the right amount of time, and 21 percent thought it is imposed too often.

But overall approval was down significantly from 80 percent in 1994. And a 2006 Gallup poll reported that 48 percent preferred life without parole when given that option, compared to 47 percent for the death penalty.

Many of those in favor point to "an eye-for-an-eye" type of biblical justice.

The Southern Baptist Convention in 2000 passed a resolution supporting "the fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death."

The Assemblies of God say opinions are mixed, however more people associated with the church probably favor the death penalty for certain types of crimes than oppose it. "This consensus grows out of a common interpretation that the Old Testament sanctions capital punishment, and nothing in the New Testament negates maximum punishment as society’s means of dealing effectively with serious crimes," according to a document on its Web site.

But the Rabbinical Assembly and many Christian denominations oppose state-sponsored killing. The United Church of Christ has called for abolition of the death penalty, as have the Episcopal Church, the United Presbyterian Church and the United Methodist Church.

They express support and sympathy for murder victims and their families, but say capital punishment is vengeful, denies opportunity for repentance and is contrary to the belief that all human life is sacred.

The Catholic Bishops of Washington State issued a call for abolition of the death penalty in January 2000. They reminded parishioners that the church believes the state has a right to use the death penalty when necessary to protect the community. But the public can be protected by imprisoning those convicted, the bishops wrote.

The Church of Jesus Christ of Latter-Day Saints neither promotes nor opposes capital punishment, according to its Web site.

Laws and applications differ among states

Currently 35 states have enacted some type of death penalty law. Fifteen states plus the District of Columbia bar capital punishment.

Earlier this year, New Mexico became only the second state to ban executions since 1976 when the U.S. Supreme Court said they could resume under certain standards and procedures. In signing legislation that replaced lethal injection with life imprisonment, Gov. Bill Richardson said, "Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe."

California leads all states in the number of inmates on death row. As of the first of the year, 678 people there were awaiting the executioner. Florida and Texas followed with 402 and 358 respectively.

But Texas has the most experience in delivering the ultimate punishment, having put 442 convicts to death since 1976. Virginia follows with 103.

In contrast, Washington currently has eight men on death row and has executed four. Twelve states and the federal government have executed even fewer.

In Washington state, King County is second only to Pierce County in the number of death notices filed and sentences imposed in the past three decades. King County Prosecuting Attorney Dan Satterburg acknowledged in an e-mail interview that the death penalty has been "something of a hypothetical sentence under Washington’s experience.

"It is not our goal to be like Texas, but our number is so small that it makes the sentence extremely unlikely."

Whether capital punishment is a deterrent to murder is still hotly debated. But most people don’t believe it is, according to a 2006 Gallup poll in which 64 percent disagreed with the notion.

State Sen. Adam Kline, D-Seattle — one of the sponsors of the Senate bill to abolish the death penalty in favor of life without parole for all aggravated murder convictions — wrote in an e-mail to the Union-Bulletin that a life sentence "is actually a greater punishment than death.

"My own take is that for any deterrent to work, the class of people intended to be deterred must know about it.

"If you can visualize a guy who is about to commit premeditated murder, with his head in Title 9 (criminal laws) of the Revised Code of Washington, then you can believe the deterrence argument."

Also, a 2009 survey found 88 percent of leading criminologists don’t believe it’s an effective deterrent.

Some statistics back up the contention.

By region, the South accounts for more than 80 percent of executions, according to the Death Penalty Information Center. The Northeast has had the fewest, less than 1 percent. But 2006 FBI statistics show the South had the highest murder rate and the Northeast, the lowest.

A recent report in The Orbis magazine of Vanderbilt University said, "Over the last 20 years, the homicide rates in states with the death penalty have been 48 to 101 percent higher than in those without the death penalty. In fact, the percentage of violent crimes spikes around the time of a well-publicized execution, which could indicate a twisted perception that violent crimes are permissible because of the state’s acceptance of brutalization as potentially just."

Based on figures from the FBI Uniform Crime Report for 2007, the 10 states with the highest murder rates had a death penalty statute on their books. Louisiana led the way with 14.2 murders per 100,000 people. New Mexico, which has since repealed its capital punishment law, was fourth.

In contrast, six of the 10 states with the lowest per capita murder rate had no death penalty law.

The average murder rate of death penalty states was 5.5 per 100,000; the average of states without capital punishment was 3.1. (Washington ranked 38th, with a rate of 2.7.)

But the Criminal Justice Legal Foundation writes: "The weight of evidence indicates that the death penalty does deter some murders and save innocent lives where it is actually enforced. In that case, a vote against the death penalty is a vote to kill innocent people to save the guilty. According to Nobel laureate Gary Becker, ‘The frequently stated claim that these studies prove that capital punishment does not deter is clearly false.’"

Adequacy of defense?

The Washington state Supreme Court in 1995 adopted rules to try to ensure quality representation for defendants facing the death penalty.

At least two lawyers must be appointed for the trial and also for the direct appeal, according to the requirements.

In addition, "All counsel for trial and appeal must have demonstrated the proficiency and commitment to quality representation which is appropriate to a capital case. At least one counsel at trial must have five years’ experience in the practice of criminal law, be familiar with and experienced in the utilization of expert witnesses and evidence, and be learned in the law of capital punishment by virtue of training or experience."

At least one of the lawyers on appeal must have three years of such experience, the rules state.

The appointments of attorneys who are kept on a list of those qualified are made by trial judges and for appeals, by the Supreme Court.

The "Shattering Myths" report maintains that the system has worked well, drawing lawyers with expertise who are well-paid. "Counsel who are appointed to represent indigent defendants facing the possibility of a death sentence in Washington have traditionally been well-compensated compared to their peers in other states," the report says.

But the 2006 report by the state Bar Association subcommittee points out that of the 19 death sentences reversed on appeal at the time of the study’s release, five were because of substandard work by defense attorneys and two for prosecution misconduct.

The subcommittee said counties "should review their levels of compensation of prosecutors and defense attorneys to assure that they can retain the services of very capable trial attorneys to handle a death penalty case."

The subcommittee recommended the federal rate of $163 an hour be considered reasonable for a private lawyer appointed as lead counsel in a death-penalty case.

Death penalty opponents often argue that innocent people have been sentenced to death. The Death Penalty Information Center says 139 condemned prisoners have been exonerated in the country since 1973.

But in Washington state, three of the four executions that were carried out during that time were of defendants who freely admitted their guilt and waived all of their appeals.

Regarding the fourth, Charles Rodman Campbell, even people most staunchly against capital punishment acknowledge evidence of his guilt was overwhelming.

The "Shattering Myths" report says Washington law provides mechanisms to address concerns about executing innocent people, such as procedures for processing new evidence, testing DNA and invoking executive privilege.

While currently 18 death sentences have been reversed under the present law, the report points out that as of the year 2000, only four guilty verdicts had been overturned.

"Not one of those four cases involve an innocent person," according to the report.

About the series

"Executing Justice" is a four-day Union-Bulletin series examining the costs associated in attempting to impose the death penalty in Washington state.

TODAY

Series overview, a column by Terry McConn and a timeline of the history of executions from 1904 to the present day.

MONDAY

The cost of trials, appeals and executions.

TUESDAY

Opponents and proponents of the death penalty argue their cases.

WEDNESDAY

The death penalty — Then and now

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