OLYMPIA – Death penalty critics sense a growing shift away from capital punishment in Washington state after nearly half of the state Supreme Court signed a blistering opinion that attacked the system’s basic fairness.
The case also brought renewed attention to a fundamental question about the system after Green River Killer Gary Ridgway received a life sentence in a plea deal with King County: How can anyone be put to death if not the state’s most prolific killer?
“I think this is the court starting to take a look at this and saying it’s crazy,” said Tim Ford, an experienced capital defense attorney. “And I don’t see the majority saying it’s great – I think I see the majority saying, ‘We can’t stop it.’ “
Prosecutors, however, were heartened by the court’s narrow defense of the state’s death penalty laws and a system that relies on elected county prosecutors to make the initial decisions about seeking death.
In a statement, King County Prosecutor Norm Maleng said, “the Court recognized that each aggravated murder case is unique and that the disposition in any other single case should not invalidate the entire death penalty statute.”
The state Supreme Court is required to review every death sentence handed out, and in its review it must consider “whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
Dayva Cross, 46, who stabbed to death his wife and two of her children in 1999, challenged the constitutionality of Washington’s death penalty by arguing it was not proportionally applied. He pointed specifically to Ridgway’s life sentence as proof.
On Thursday, the court ruled 5-4 to uphold Cross’ death sentence.
Its majority opinion, written by Justice Tom Chambers, acknowledged the extraordinary circumstances of Ridgway’s case. But the majority said Ridgway’s plea deal – no matter how unfair it may seem – does not automatically invalidate the state’s death penalty for everyone else.
“We do not minimize the importance of this moral question. But it is a question best left to the people and to their elected representatives in the Legislature,” Chambers wrote for the court.
But the four-person dissent, written by Justice Charles Johnson, was a withering legal attack on the fairness of the state’s capital punishment system.
The prison sentence granted to Ridgway and several other mass killers “reveals a staggering flaw in the system of administration of the death penalty in Washington,” the dissenters said.
“These cases exemplify the arbitrariness with which the penalty of death is exacted. … The death penalty is like lightning, randomly striking some defendants and not others,” the dissenters wrote.
On Friday, current and former prosecutors who defended the majority ruling said perfectly proportional treatment can’t be attained in every criminal case – much less every murder.
“The statute is designed to make it extremely difficult in Washington to impose a death sentence. The flip side is, it means that some individuals who you may believe deserve the death penalty may not receive it,” said Pam Loginsky, a staff lawyer with the Washington Association of Prosecuting Attorneys.
“It would be impossible to have sort of mathematical precision or guaranteed proportional treatment because every case is different,” said Jerry Costello, Pierce County’s chief criminal deputy prosecutor and a death penalty supporter.
Some death penalty critics, however, said the high court now appears strikingly close to overturning its current capital punishment statute.
Mark Larranaga, the former director of the Death Penalty Assistance Center, was among the observers who said four of the high court’s justices now seem fundamentally opposed to the state’s present death penalty system.
“That, I think, is an incredible change in the landscape of capital jurisprudence in Washington state,” said Larranaga, who was a defense lawyer in Cross’ original case.