Retired Washington State Supreme Court Justice Robert F. Utter recent­ly wrote an opin­ion piece argu­ing that the con­tin­ued use of the death penal­ty fails to serve jus­tice, pub­lic safe­ty or the pub­lic purse — and should be aban­doned. Justice Utter resigned from the high court after 23 years in 1995 because of his con­cerns about the death penal­ty. Justice Utter wrote recent­ly in the Seattle Times, ​“My orig­i­nal rea­sons for res­ig­na­tion still apply. I then stat­ed: ​‘I believe soci­ety has a right to pro­tect itself by impos­ing life sen­tences with­out the pos­si­bil­i­ty of parole. However, it became obvi­ous that there were cer­tain inher­ent con­tra­dic­tions that made unfair­ness and dis­crim­i­na­tion not mere­ly uncon­trol­lable acces­sories of the pun­ish­ment of death, but its very essence.’ The full text of the op-ed may be read below:

Washington state must aban­don the death penal­ty

By Robert F. Utter

The impend­ing exe­cu­tion of a man in Washington State faces us with the ques­tion of whether the death penal­ty serves the state and its cit­i­zens well and whether it ful­fills the rea­sons for which it was ini­tial­ly passed.

Since my res­ig­na­tion from the Washington State Supreme Court in 1995 to protest the death penal­ty, many things have changed. Public sup­port for the death penal­ty has fall­en dra­mat­i­cal­ly over the past 14 years. Since 1995, death sen­tences in America have declined more than 60 per­cent, revers­ing a gen­er­a­tion-long trend toward greater accep­tance of cap­i­tal pun­ish­ment.

Friday’s planned exe­cu­tion of Cal Coburn Brown for the 1991 tor­ture and slay­ing of Holly Washa, 22, would be the first Washington state exe­cu­tion since 2001. The Supreme Court this week declined to stay the exe­cu­tion.

Most Americans con­tin­ue to sup­port the death penal­ty for the tru­ly guilty. However, the dis­cov­ery of inno­cence in more than 130 cas­es where peo­ple have been sen­tenced to death, exon­er­at­ed and released is one more rea­son to ques­tion the need for reten­tion of the death penal­ty. DNA test­ing is a par­tial answer, but even that is avail­able in less than 10 per­cent of all homi­cides and is no guar­an­tee we will not exe­cute inno­cent peo­ple.

As for pun­ish­ment and pro­tec­tion, life in prison with­out the pos­si­bil­i­ty of parole is avail­able in 48 states, includ­ing Washington, and pre­vents crim­i­nals from reof­fend­ing. It means what it says — 23 of 24 hours a day locked in a tiny cell is not cod­dling. Traditional objec­tions — such as cost, delay and ques­tion­able deter­rence giv­en uncer­tain­ty and ran­dom­ness of appli­ca­tion — still exist. As does rejec­tion of the death penal­ty by most civ­i­lized soci­eties, includ­ing the more than 50 mem­bers of the Council of Europe.

My orig­i­nal rea­sons for res­ig­na­tion still apply. I then stat­ed: ​“I believe soci­ety has a right to pro­tect itself by impos­ing life sen­tences with­out the pos­si­bil­i­ty of parole. However, it became obvi­ous that there were cer­tain inher­ent con­tra­dic­tions that made unfair­ness and dis­crim­i­na­tion not mere­ly uncon­trol­lable acces­sories of the pun­ish­ment of death, but its very essence.”

One of the rea­sons for my res­ig­na­tion was the fail­ure of the court to con­duct mean­ing­ful pro­por­tion­al­i­ty reviews as required by Washington law. In 2006, the court came with­in one vote of find­ing the death penal­ty had been applied in an arbi­trary and irra­tional man­ner. The dis­sent not­ed: ​“The death penal­ty is like light­en­ing, ran­dom­ly strik­ing some defen­dants and not oth­ers.”

The death penal­ty was not imposed on Green River killer Gary Ridgway or on Benjamin Ng and Kwan Fai ​“Willie” Mak, who gunned down 14 peo­ple in the 1983 Wah Mee Massacre in Seattle. Where the death penal­ty is not imposed on those who com­mit­ted the worst mass mur­ders in Washington’s his­to­ry, on what basis do we deter­mine on whom it is imposed?

In addi­tion, many states are now exam­in­ing the ques­tion of cost and have point­ed out that cap­i­tal cas­es cost three times as much as homi­cide cas­es in which the death penal­ty is not sought. They have done this rea­son­ing that there are bet­ter and cheap­er ways to reduce crime.

Lawmakers in Maryland, Colorado, Kansas, Nebraska, Montana and New Mexico are cur­rent­ly exam­in­ing the mer­its of this argu­ment. Gov. Bill Richardson of New Mexico, a long­time sup­port­er of the death penal­ty with grow­ing con­cerns about mis­car­riages of jus­tice and the cur­rent era of aus­ter­i­ty and tight bud­gets, is say­ing he may sign a bill repeal­ing cap­i­tal pun­ish­ment.

Retaining the death penal­ty fails to serve either jus­tice, pub­lic safe­ty or the public purse.

Robert F. Utter served on the Washington state Supreme Court from 1971 until his 1995 res­ig­na­tion protest­ing the death penalty.

(R. Utter, ​“Washington state must aban­don the death penal­ty,” The Seattle Times, March 11, 2009). Note: The exe­cu­tion of Cal Brown in Washington was stayed pend­ing a review of the state’s lethal injec­tion process. See Arbitrariness and New Voices.

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