Washington Supreme Court Unanimously Finds Reversible Error, But Upholds Prisoner’s Conviction and Death Sentence
A fractured Washington Supreme Court unanimously found that a death-row prisoner’s constitutional rights had been violated under circumstances that had always before required overturning a conviction and granting a new trial, but nevertheless voted to uphold his conviction and death sentence. In five opinions spanning 254 pages published on April 12, 2018, the nine justices agreed that Conner Schierman’s (pictured) rights to be present and to a public trial were violated during the jury selection process in his case when the court discussed potential challenges for cause related to six prospective jurors in the judge’s chambers outside the presence of the defendant and the public without making a record of the proceedings. Under long-established Washington law, such constitutional violations had long been considered “structural error” requiring that a new trial automatically be granted. In the lead opinion in the case, Justice Sheryl Gordon McCloud wrote that the 10-minute proceeding could not have had any effect on the trial and did not undermine public confidence in the justice system. In a concurring opinion, Justice Mary Yu, joined in by three other justices, wrote: “A majority of this court agrees that justice demands we affirm Schierman’s convictions, but every member of the court unanimously agrees that our precedent precludes us from doing so. In this direct conflict between justice and precedent, justice must prevail.” Four justices dissented from the majority’s decision to change exisiting law to uphold Schierman’s convictions. Two other justices, and one of the guilt-stage dissenters, also believed that Schierman’s death sentence had been unconstitutionally imposed, for a total of six justices who had determined that the constitutional violations in the case required that Schierman be granted a new trial or that his death sentence be overturned. But rather than ruling that a death sentence cannot be imposed for an unconstitutionally obtained conviction, three of the guilt-stage dissenters—Justices Debra Stephens, Charles Johnson, and Susan Owens—joined with the remaining justices to uphold Schierman’s death sentence by a vote of 6-3. Schierman was convicted and sentenced to death in King County in 2010 for stabbing to death four members of Leonid Milkin’s family while the National Guardsman was deployed to Iraq. He is the last person to have been sentenced to death in King County, which includes the city of Seattle. King County Prosecuting Attorney Dan Satterberg has advocated abolishing Washington’s capital-punishment statute, writing that “the death penalty law in our state is broken and cannot be fixed. It no longer serves the interests of public safety, criminal justice, or the needs of victims.” He testified before a state senate committee, “If you look at it carefully and take away the politics and the emotion, by any measure this doesn’t work. Our criminal justice system would be stronger without the death penalty.” Satterberg said Leonid Milkin “is supportive of the death penalty in this matter and we continue to pursue it, as it continues to be the law of the state.” The bi-partisan abolition bill, which has the support of Governor Jay Inslee and the state’s last two attorneys general, passed the state senate and a house committee in the 2018 legislative session that ended in March, but never received a vote before the full house. Governor Inslee imposed a moratorium on executions in Washington in February 2014.
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Attempts Both to Repeal and to Restore Death-Penalty Statutes Fail in Legislatures Across the Country
In Washington and Utah, bipartisan or Republican-led efforts at death-penalty repeal fell short, a month after death-penalty proponents abandoned efforts to reinstate capital punishment in New Mexico and Iowa. In Washington, a bipartisan push to replace the death penalty with life without possibility of release was introduced at the request of Democratic Attorney General Bob Ferguson with the support of his Republican predecessor Rob McKenna, Democratic Governor Jay Inslee, and King County Prosecutor Dan Satterberg, a Republican from the state's largest county. With key votes from five Republican senators, SB 6052 passed the state senate on February 15 by a vote of 26-22 and was favorably reported out of the House Judiciary Committee, but the Democratic leadership in the House did not schedule it for a vote before the legislative session ended. Ferguson said he was “deeply disappointed” by the bill’s failure, but said his disappointment was “tempered somewhat by the historic progress the bill made this year” and his belief that the state has moved closer to abolishing capital punishment. The Utah death-penalty repeal effort was led by Republican legislators, and the state’s Republican Governor Gary Herbert had said he would consider signing the bill. In 2016, a bill sponsored by Republican Sen. Steve Urquhart passed the state senate and a house committee, but was not voted on by the full House before the legislative session ended. This year, Republican Rep. Gage Froerer sponsored HB 379, and won the support of Republican House Speaker Greg Hughes. But on March 2, after the bill had passed the House Judiciary Committee, Froerer pulled it from consideration because he believed the bill would lose a close vote in the House. “I was hopeful that Utah would be one of the first red states to take this, because the trend obviously is to do away with the death penalty,” Froerer said. “I’m convinced whether it’s next year or five or 10 years from now the death penalty will go away.” The failure of the abolition bills came on the heels of death-penalty proponents’ abandonment of efforts to restore capital punishment in New Mexico and Iowa. After passing the New Mexico House last legislative session, a bill to bring back the death penalty was tabled in committee on February 2. It was the fifth failed attempt by Republican Gov. Susana Martinez to reinstate the practice, which was abolished under Gov. Bill Richardson in 2009. On February 13, the sponsor of Iowa’s Senate Study Bill 3134—Republican Sen. Brad Zaun, the chairman of the Senate Judiciary Committee—announced that he did not have enough votes to move forward with the bill in 2018 and would be “putting it to rest.” Proponents of Iowa's house bill had previously withdrawn it from consideration when a key Republican supporter changed his mind after researching the bill. Rep. Steven Holt said “conceptually and morally” he believes the death penalty is sometimes appropriate, but “[s]tatistics show, without a doubt, that those of lesser means are more likely to receive the death penalty than are those with greater assets and ability to hire the best attorney.” Holt said, “I support the death penalty in theory," but “practically, I arrived at a different conclusion than I expected. ... I have great issues with its practical and fair application.”
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Washington State Senate Passes Death Penalty Abolition Bill
A bipartisan bill to abolish the death penalty in Washington passed the state Senate on February 14 on a 26-22 vote. SB 6052 now moves to the House of Representatives, where the chairwoman of the House Judiciary Committee has said it will be given a hearing. "Today, the Washington State Senate took an historic, bipartisan vote, passing Attorney General-requested legislation to eliminate the death penalty and replace it with life in prison without possibility of parole," said incumbent Democratic Attorney General Bob Ferguson. He, his Republican predecessor Rob McKenna, and Governor Jay Inslee had asked the legislature to take up the measure. The bill also received support from Republican King County prosecutor Dan Satterberg, and five Republican senators voted for its passage. During an emotional debate on the floor of the senate, Sen. Mark Miloscia (R - Federal Way) told lawmakers, "all people deserve to live." Miloscia, who is one of the bill's co-sponsors, said, "I'm here to ask for mercy, literally for the worst among us." Sen. Maureen Walsh (R - Walla Walla), another sponsor of the bill, said "We spend a lot of money, our tax money, appealing these decisions, and we have done this for many, many years. I have no sympathy for people that kill people, that's not why I'm doing this. I'm doing this maybe because I feel like it's somewhat our responsibility as legislators to vet these issues here in this forum, in this venue." A third co-sponsor, Sen. Reuven Carlyle (D - Seattle), raised ongoing concerns about the risk of executing innocent defendants. "You cannot read a front page story about DNA mistakes that has someone in jail for 35 years and not be jolted to the core," he said. "That has transformed the public's view of this issue." Governor Inslee, who imposed a moratorium on executions in 2014, described the vote as reflecting “an increasing recognition of the public that this is not an effective and certainly an unequal administration of justice and is no longer acceptable in the state of Washington.” "I hope Washington joins the growing number of states that are choosing to end the death penalty," he said. Before the final vote, Senators voted down two amendments that would have narrowed the death penalty, but not eliminated it, and a third amendment that would have put the issue to voters in a public initiative. Ferguson called on the House to join the Senate in passing the measure. The bill, he said, provided the House "the opportunity to abolish our broken death penalty."
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NEW VOICES: Law Enforcement Officials in Washington, Texas Call for End of Their States’ Death Penalties
Drawing on their experience in the criminal justice system, elected law enforcement officials in Washington and Texas have urged repeal of their states' death-penalty laws. In Washington, King County (Seattle) prosecutor Dan Satterberg (pictured, left), a Republican, testified January 22 before the Senate Law and Justice Committee in favor of a bipartisan legislative proposal to repeal Washington's capital-punishment statute. Telling the Texas Tribune “[w]e’re killing the wrong people,” former Dallas County sheriff Lupe Valdez (pictured, right), currently a candidate for the Democratic Party nomination for governor of Texas, announced her opposition to Texas's death penalty. Satterberg's testimony came on the heels of an op-ed he wrote in The Seattle Times in support of SB6052, a bill that would prospectively abolish capital punishment. Satterberg, who has worked in the King County prosecutor's office for 27 years and witnessed Washington's last execution in 2010, wrote: "It is my duty to report that the death penalty law in our state is broken and cannot be fixed. It no longer serves the interests of public safety, criminal justice, or the needs of victims." Sitting alongside Democratic Attorney General Bob Ferguson, Satterberg told the committee, “If you look at it carefully and take away the politics and the emotion, by any measure this doesn't work. Our criminal justice system would be stronger without the death penalty.” The abolition bill was introduced by Republican state Sen. Maureen Walsh, with bipartisan co-sponsorship, at Ferguson's request. In a news release, Ferguson said: “The death penalty is expensive, unfair, disproportionate — and it doesn’t work. More than a third of all U.S. states have abolished the death penalty. Washington should join them.” The bill passed the committee by a 4-3 vote on January 25. In a Texas candidate's forum in Austin, Valdez—who served as sheriff from 2005 to 2017 before resigning to run for governor—referenced on-going concerns about wrongful capital convictions and wrongful executions. “Some of those [sentenced to death in Texas] have been exonerated," Valdez said. "We cannot continue being in a situation where we risk killing a person who is not guilty.” Since 1973, 13 people have been exonerated from death row in Texas, and questions have been raised about the guilt of several executed prisoners, including Carlos DeLuna, Cameron Willingham, and Robert Pruett. Valdez joined another leading Democratic contender for governor, businessman Andrew White, in opposing the death penalty. Incumbent Governor Greg Abbott, a former Texas attorney general, is a strong supporter of capital punishment.
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Bipartisan Effort to Abolish Death Penalty Gains Momentum in Washington
With the backing of the state's governor and attorney general, Democratic and Republican sponsors of a bill to repeal Washington's capital-punishment statute have expressed optimism that the state may abolish the death penalty in 2018. In 2017, Attorney General Bob Ferguson, a Democrat, was joined by former Attorney General Rob McKenna, a Republican, in calling on the legislature to end the state's death penalty. Ferguson, who has said "[t]here is no role for capital punishment in a fair, equitable and humane justice system," is pressing legislators to take up the bill this year. Governor Jay Inslee featured the bill in his January 9, 2018 State of the State address, urging legislators to "leave a legacy that upholds the equal application of justice by passing a bill to end the death penalty in the state of Washington." The bill, now numbered SB 6052, has bipartisan backing: two of its sponsors in each house are Republicans. And Senator Jamie Pedersen (D-Seattle), the chair of the Senate Law and Justice Committee, to which the bill has been referred, said "[t]he stars may be aligning now for support of doing away with the death penalty." Both Republican sponsors in the Senate have questioned the value of the death penalty for murder victims' families and stressed that capital punishment runs counter to conservative values. Sen. Mark Miloscia (R-Milton) wrote in a recent op-ed, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." He said continuing with the death penalty is unjustifiable given its failure to contribute to public safety, its high cost, and the "ever-present risk of killing an innocent person." Sen. Maureen Walsh (R-Walla Walla) said, "The death penalty isn’t really accomplishing a wonderful relief to [victims'] families." The repeal bill was stalled in 2017 when Senator Mike Padden, the former judiciary committee chairman, refused to hold hearings on the bill. When Democrats gained control of the state senate after the November 2017 elections, Pederson replaced Padden, paving the way for committee action on the bill. “The votes are there,” Attorney General Ferguson said. “I’m reasonably optimistic that this could be the year.” Miloscia said he, too, is “highly optimistic .... I think this is something that people on both sides of the aisle want to get done.” Washington has a similar profile to other states that have recently abolished the death penalty. Its murder rate is significantly below the national average and, as with most of the states that have done away with capital punishment, it has a very low rate of murders of police officers. The high cost of the death penalty is also a factor for legislators. According to a 2015 Seattle University study, each death-penalty prosecution cost an average of $1 million more than a similar case in which the death penalty was not sought. In an email to the Washington Newspaper Publishers Association, Senator Walsh said "taxpayers foot the multi-million dollar appeals process for the accused and we spend $50,000/year for incarceration. ... A life sentence with no chance of early release saves money and issues the ultimate punishment by denying the convicted their freedom and liberties for life.” Washington has not carried out an execution since 2010, and Governor Inslee—who imposed a moratorium on executions in February 2014—has said he will not allow executions to take place while he is in office.
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Conservative Voices Continue to Call for End of Death Penalty
From October 2016 to October 2017, support for capital punishment among those identifying themselves as Republicans fell by ten percetage points. Two op-eds published towards the end of the year illustrate the growing conservative opposition to the death penalty. Writing in The Seattle Times on December 27, Republican State Senator Mark Miloscia (pictured, l.) called for bipartisan efforts to repeal Washington's death-penalty statute. In a December 13 commentary in the Washington Times, conservative political strategist Richard Viguerie (pictured, r.) describes what he calls the "stunning" surge in Republican sponsorship of bills to end capital punishment. Setting forth moral and practical reasons for his support of Washington Senate Bill 5354, Miloscia writes that "[i]t is time to pass a strong, bipartisan repeal of the death penalty." Miloscia cites his Catholic pro-life beliefs as the primary reason for his opposition to capital punishment and highlights Pope Francis' calls for an end to the death penalty. He writes, "Given our modern prison system and ability to neutralize individuals as threats without killing them, it is never imperative to execute someone." But beyond religious beliefs alone, Miloscia sees "many practical reasons why conservatives of all faiths are rethinking the death penalty." Among them, he cites the high cost of capital punishment and the "ever-present risk of killing an innocent person," which he says are "even more unjustifiable" given the absence of any valid evidence that executions affect murder rates. Further, he writes, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." Miloscia sees a major shift underway in Republican thinking on the issue, paving a path for bipartisan repeal: "Republicans are turning against the death penalty, which means that opposition to capital punishment is no longer a partisan stance. As the death penalty slowly loses its supporting constituency, the punishment’s future becomes doubtful." Conservative leader Richard Viguerie also sees a dramatic change in how conservatives view the death penalty. Viguerie cites a 2017 report by Conservatives Concerned About the Death Penalty, which found a surge in Republican sponsorship of death-penalty abolition bills that Viguerie says "has been gaining momentum." As part of this "massive shift," he writes, one-third of all sponsors of death-penalty repeal bills in 2016 were Republicans. Viguerie writes, "conservatives are recognizing that capital punishment is a broken government program that runs counter to conservatism’s foundational tenets of valuing life, fiscal responsibility and limited government." He, too, points to religion, and Catholicism in particular, as a reason for conservative opposition, but says that the Tea Party movement—with its support of limited government—and the election of younger legislators who are statistically more likely to oppose the death penalty, has contributed to the change. He foresees a continuing decline in conservative support for the death penalty: "As state legislatures undergo their makeovers, the public turns against the death penalty, and political leaders voice their capital punishment concerns, we should expect to see even more from Republican officials. Republicans will likely continue to sponsor repeal bills with increasing frequency and reverse the flawed criminal justice policies once advocated by their ideological predecessors of the 1980s and 1990s."
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