Washington Supreme Court Closely Divided on Rationality of State’s Death Penalty

The Washington State Supreme Court recent­ly came with­in one vote of effec­tive­ly abol­ish­ing the state’s death penal­ty when it ruled in the case of death row inmate Dayva Cross. Cross is on death row for the mur­der of his wife and her two teenage daugh­ters. Attorneys for Cross had argued that their client should not be exe­cut­ed because killers who had com­mit­ted worse crimes had been spared the death penal­ty. The 2003 case of Green River Killer Gary Ridgway, who received a life sen­tence in exchange for a detailed con­fes­sion about killing 48 young women, was among the chief exam­ples used by Cross’ attor­neys.

The court’s 5 – 4 rul­ing uphold­ing Cross’ death sen­tence revealed a deep divi­sion about the future of the state’s law. Writing for the major­i­ty, Justice Tom Chambers said the ​“moral ques­tion” of whether those on death row can be exe­cut­ed while a noto­ri­ous ser­i­al killer is giv­en life is best left to state law­mak­ers or the peo­ple of Washington.

A dis­sent­ing opin­ion authored by Justice Charles Johnson stat­ed, ​“When Gary Ridgway, the worst mass mur­der­er in this state’s his­to­ry, escapes the death penal­ty, seri­ous flaws become appar­ent. The Ridgway case does not ​‘stand alone,’ as char­ac­ter­ized by the major­i­ty, but instead is symp­to­matic of a sys­tem where all mass mur­der­ers have, to date, escaped the death penal­ty.… The death penal­ty is like light­ning, ran­dom­ly strik­ing some defen­dants and not oth­ers. Where the death penal­ty is not imposed on Gary Ridgway, Ben Ng and Kwan Fai Mak (the lat­ter two con­vict­ed in Seattle’s 1983 Wah Mee mas­sacre), who rep­re­sent the worst mass mur­ders in Washington’s his­to­ry, on what basis do we deter­mine on whom it is imposed? No ratio­nal expla­na­tion exists to explain why some indi­vid­u­als escape the penal­ty of death and oth­ers do not.”

An edi­to­r­i­al in the News Tribune echoed the dis­sent­ing jus­tices’ opin­ion, stat­ing:

Since the 1960s, Washington has exe­cut­ed only 4 con­demned mur­der­ers — and three of those sought death by refus­ing to appeal their sen­tences.

The rar­i­ty of exe­cu­tions speaks well of this state. But it has cre­at­ed a new grounds of appeal: that there is no log­ic or con­sis­ten­cy in the way death penal­ties are hand­ed down and car­ried out in Washington.
…
We’re reluc­tant to argue for abol­ish­ing Washington’s nar­row­ly drawn death penal­ty, which reflects the will of the elec­torate. But Johnson’s argu­ment is hard to ignore in a state whose laws gen­er­al­ly call for pro­por­tion­ate sen­tences for sim­i­lar crimes.

With the likes of Ridgway, Ng and Mak liv­ing out their lives in prison, Dayva Cross’ exe­cu­tion — if it ever hap­pens — may well be the legal equiv­a­lent of a capri­cious bolt of light­ning.

(News Tribune, April 2, 2006 and Seattle Post-Intelligencer, March 31, 2006). See Arbitrariness, Life Without Parole, Editorials, and New Voices.