Overview of Capital Punishment LawsI have long felt it is important for the judiciary to periodically assess and describe how various laws operate with each other in their actual implementation. The State of Washington adopted new death penalty laws in 1981. It seems appropriate for the judiciary at this time to examine how these laws have worked over the past nineteen years, how much these cases cost, and how much time they take to resolve.
Since the Legislature reinstated the death penalty in 1981, 25 men have been convicted and sentenced to death. Trial and appellate courts adjudicating death penalty cases do so recognizing that "death is different." Because a death sentence is irreversible, opportunities for proving innocence in addition to those furnished in other felony cases are offered to the defendant in order to avoid erroneous executions. The importance of the review system is illustrated by the current situation in Illinois, a state in which 12 men have been executed since the 1980s but another 13 men sentenced to death have been exonerated. Appellate review of their cases resulted in reversal of their judgments after they were able to prove their innocence through the use of newly discovered DNA techniques or for other reasons.
Overview of Capital Punishment Laws. In order to assess how our capital punishment system operates, it is important to have an overview of the functioning of the numerous legal proceedings involved in each capital case. The following chart and text provide descriptions of the various proceedings conducted in the trial, state appellate, and federal courts .
The U.S. Constitution, Washington Constitution, and federal and state statutes require scrupulous review of capital cases due to their considerable potential for error and the irreversible nature of the death sentence. From the beginning of a death penalty case to its final resolution years later, specialized, supplementary death penalty procedures are required by law. Courts at all levels make every effort to prevent wrongful convictions and guarantee fairness. The consensus of death penalty experts across the country is that death penalty law has become increasingly complicated, convoluted, and involved.
Aggravated murder is the only crime for which a death sentence may be imposed in Washington. It is statutorily defined as first degree murder with one or more aggravating circumstances, including, but not limited to, murder of a law enforcement officer or fire fighter, murder committed while the defendant was incarcerated; "murder for hire"; murder occurring during the commission of a felony; or multiple victims. If a defendant is convicted of aggravated murder, the trial court must, under the law, sentence the defendant to either life without the possibility of parole or, if death penalty procedures have been followed and the jury so determines, to the death penalty. An aggravated murder trial matter becomes a death penalty proceeding upon the prosecutor's filing of a notice within 30 days of arraignment on the aggravated murder charge. The notice which requests a death penalty sentencing hearing alleges that there are insufficient mitigating circumstances to merit leniency. The death penalty allegation in the notice is determined in a special death penalty sentencing hearing if the defendant is convicted as charged.
Appellate Review. Once a defendant has been convicted of aggravated murder and sentenced to death, the state constitution mandates appellate review of the trial court's judgment by an appellate court. In addition, state law requires mandatory review of the conviction and death sentence by the Washington State Supreme Court. This review usually encompasses both a general review of the trial court proceedings and a statutorily mandated review of the death sentence, including proportionality of the sentence, whether there was sufficient evidence to support it, whether the defendant was mentally retarded, and whether the sentence was brought about through passion or prejudice. If, after state appeal, an aggravated murder conviction and death sentence is affirmed, the defendant may seek review by the US Supreme Court by filing a petition for writ of certiorari. The US Supreme Court may reverse the conviction or sentence if it decides to accept review.
If the judgment is affirmed on appeal, as a matter of Washington state constitutional law and court rule, capital defendants are entitled to file a personal restraint petition. In these petitions, defendants raise issues that were not covered in their trial court proceedings or appeals, such as allegations of ineffective assistance of counsel or the existence of newly discovered evidence. Additional personal restraint petitions to the Washington State Supreme Court may be requested by any convicted defendant upon a showing of good cause as to why the grounds could not have been raised in a previous proceeding. Only a small percentage are heard by the Court each year (no capital defendant's second personal restraint petition has been heard in the past eight years.)
After state court proceedings are completed, as a matter of federal law, all Washington defendants sentenced to death have a right to file a petition for habeas corpus in US District Court and a right to have denial of their petition reviewed by the Ninth Circuit Court of Appeals. During the last nine years, the number of issues raised and considered in the state courts have increased substantially. In 1991, the US Supreme Court announced, in McCleskey v. Zant, 499 U.S. 467, that a death penalty defendant must, for the most part, raise all claims in state appellate court before raising them in federal appellate court. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) to further restructure the death penalty review process. This law requires all capital defendants to present all potential claims in state court, and prevents the initiation of new claims at the federal court review level. The McCleskey decision and AEDPA have placed a difficult and complex burden on the state courts to ensure the fairness of capital sentencing proceedings. In death penalty cases, the penalty for the prosecution's failure to adequately provide the defendant's rights can be reversal of the conviction; the penalty for the defendant's failure to timely raise issues can be preclusion of the defendant's ability to raise them in the future.
In death penalty trials, appeals, and habeas corpus or personal restraint petitions, prosecutors and defense counsel often inundate the court with motions raising every conceivable issue that may affect the outcome of the case. For example, prosecutors and defense attorneys filed over 56 motions in In re Gentry, a personal restraint petition recently decided by the Washington State Supreme Court. Each motion requires deliberation and a decision by the Court. In 1997, the Washington State Supreme Court began requiring the appointment of defense co-counsel for death penalty cases at trial and on appeal, consistent with American Bar Association and federal law guidelines. Minimum experience requirements for defense counsel were also set. In the last five years, Washington courts have increasingly appointed experts to assist with psychiatric or DNA questions and other complex scientific issues. These additional counsel and experts add costs to both trial and appellate level proceedings and make them last longer since the courts must hear and evaluate the complex issues raised.
The result of the required reviews for each of Washington's 25 death penalty cases, conducted with the scrupulous attention to constitutional safeguards that must be given to these cases by the courts, has been the execution of three men, two of whom terminated their review process early on, choosing not to pursue appellate review past the first stage. Six capital judgments have been reversed, two by the Washington State Supreme Court, one by the federal district court, and two by the Ninth Circuit. The remaining 16 death penalty sentences are currently in the state or federal review process.
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