Washington could become the next state to take the death penalty off its books – if a bipartisan effort to repeal the punishment finds favor among the state’s politicians.
Washington Democratic Gov. Jay Inslee and Democratic Attorney General Bob Ferguson on Monday announced the repeal bill with support from both Democrats and Republicans in the legislature, and the hope that pressure from the state's top law official could boost support for the proposal.
Once considered a left-leaning view, opposition to the death penalty has gained broader support in recent years as more analysis on the lengthy and costly legal proceedings of capital punishment has pushed officials to give pragmatic concerns at least as much weight as ethical appeals. Nineteen states and Washington, D.C., have abolished capital punishment entirely, and several others, including Washington, have enacted moratoriums on the practice, halting executions of those on death row due to similar concerns.
The practical arguments have begun to pull the issue above the partisan fray, helping repeal proposals garner increasing support among courts, legislatures, and governors who may not agree on the moral questions surrounding the penalty, but can find common concerns among the financial and discriminatory issues stemming from the punishment’s use.
“There’s been a real change in the way in which people are thinking about the death penalty,” Austin Sarat, a professor at Amherst College in Massachusetts and author of the 2014 book, “Gruesome Spectacles: Botched Executions and America’s Death Penalty,” tells The Christian Science Monitor in a phone interview. “This change in rhetoric has enabled a coming together of people who on moral and philosophical grounds may not agree at all – you see some of that also with respect to criminal justice reform more generally.”
“That provides a place where people with different political convictions can come together in opposition to the death penalty,” he adds.
In Washington, the state spends around $1 million more on each case involving the death penalty, compared to cases where defendants who have committed similar crimes face life without parole, bringing the average total to just over $3 million per trial, according to a Seattle University study published in 2015. Advocates of reform have also cited courts’ tendencies to disproportionately apply the punishment to minority offenders and raised concerns that wrongly convicted people could be put to death before exonerating evidence is brought to light.
"Death penalty sentences are unequally applied in the state of Washington, they are frequently overturned, and they are always costly," Gov. Inslee said, according to the Associated Press. "I could not in good conscience allow executions to continue under my watch as governor under these conditions."
The state’s most recent former attorney general, a Republican, also backed the legislation.
“The current system is not working,” Rob McKenna said in a statement. “There is too much delay, cost and uncertainty around the death penalty, which is why I stand today with Attorney General [Bob] Ferguson and this bipartisan group of legislators in support of this change.”
Washington is far from the only state considering a rethinking of its capital punishment system. Three others– California, Nebraska, and Oklahoma – all weighed in on the death penalty through ballot measures last fall. Despite the states' varied political leanings, each saw a majority of voters cast their ballots in favor of keeping the punishment on the books.
While public opinion nationally has shifted away from support for capital punishment, those referenda results aren’t surprising, experts say. Over the past century, more than two dozen ballot measures seeking to repeal the death penalty have failed in states, and states have found greater success in the court or legislature in their attempts to abolish the punishment.
“One of the things that we saw in the referenda were highly emotional appeals that had little basis in the policy realities,” Robert Dunham, the executive director of the Death Penalty Information Center (DPIC), an organization that researches but does not take an official stance on the issue, tells the Monitor. “The usual course in enacting, amending, or repealing criminal sanctions is for the legislature to do that. It’s more direct, it’s less expensive, and it gives you a better chance to have people make decisions who are more familiar with the actual policy implications.”
Whether by emotional appeal or pragmatic reasoning, the number of executions nationwide has dropped drastically, even in states that have not enacted any bans. Last year, 30 people received death sentences and 20 were executed, marking a drop to the lowest numbers since the 1970s and 1980s following a peak rate of 315 death sentences in 1996, according to a December report from the DPIC. Those declines follow both a reluctance on prosecutors’ parts to seek the death penalty, and juries’ hesitancy to divvy the punishments out.
Many critics note the death penalty's financial implications, as well.
“From a purely economical standpoint [following a repeal of the penalty], those additional costs would be opportunity costs that would be rerouted in the system and be spread out on other cases and other initiatives,” Peter Collins, a criminal justice professor at Seattle University who authored the 2015 study, tells the Monitor.
High costs also create a system that acts disproportionately based on geography, he says, noting that counties with less money were often less likely to pursue capital punishment.
“Having a policy that would depend on money is not, I don’t think, constitutional or rational in any way,” Dr. Collins adds, also arguing that the punishment's second disproportionate effect – the racial disparities in its application – raises serious questions about its continued use.
But holdouts for the penalty remain, and two high-profile offenders, Dylann Roof of the Charleston, S.C., church shooting and Boston Marathon bomber Dzhokhar Tsarnaev, have both received federal death sentences in the past two years, with prosecutors arguing that the punishment was the only option for their heinous crimes.
In Washington, some politicians have suggested that they might oppose the repeal effort.
"It's obviously a power the government takes soberly," Washington state Sen. Steve O'Ban (R) told the Associated Press. "But if we value human life, the only appropriate sanction for the most serious crime of taking that precious individual life is the death penalty and should be retained for the most serious cases."
Those in favor often argue that the punishment serves as a crime deterrent, but data on the topic is hotly debated, and fewer officials are resorting to that argument, turning instead to evidence on cost and proportionality.
The most notable piece driving the new bill is its bipartisan support from the current and former attorneys general, Mr. Dunham says. While past legislative attempts have languished or failed around the country, and even in Washington, the weight behind the bill sends a determined message on part of the governor's office.
“When you have a governor, two leading prosecutors, and bipartisan legislative support, the issue ceases to be one of political ideology,” he says. “I think the fact that bipartisan attorneys general are calling for abolition of the death penalty, may overcome some … of the reflexive opposition to death penalty repeal bills that we often see. The time may now be ripe for an objective legislative reconsideration of the death penalty in Washington state.”