Supreme Court Justice Retires Utter Says Death Penalty Cases ‘All Of The Reason’ For Resignation

Washington’s senior jurist, Supreme Court Justice Bob Utter, announced his resignation on Wednesday, accompanied by a stinging indictment of the death penalty.

Asked whether sitting on death penalty cases was part of the reason for his resignation, Utter responded, “No, it’s all of the reason.”

“I have reached the point where I can no longer participate in a legal system that intentionally takes human life in capital punishment cases,” said Utter, who over the years has dissented every time an appeal was denied in a death-penalty case.

“We continue to demonstrate no human is wise enough to decide who should die,” he said in a strongly worded statement. “My views on this subject, its injustices and flaws, are set out in the many cases where I have dissented and been upheld, in most, by the federal courts.”

Utter’s statement was reminiscent of one by former U.S. Supreme Court Justice Harry Blackmun, who said before he resigned from the high court:

“The death penalty remains fraught with arbitrariness, discrimination, caprice and mistake. … From this day forward, I shall no longer tinker with the machinery of death.”

Utter, 64, joined the high court in 1971 and sat on his last case Tuesday - an appeal of the death sentence handed to Sammie Luvene, who was sent to Death Row for the 1992 shooting death of a Milton liquor store clerk.

One of Utter’s chief complaints about the death penalty, as was Blackmun’s, is the proportionality issue. He has noted in many dissents that the death penalty is not meted out evenhandedly and is not even sought in many cases similar to those that end up in death sentences.

“Nationally, it is known that rich, white males are seldom sentenced to death, and the same is true in Washington,” he said.

One of the major arguments in the Luvene case was that it was not proportionate, in that similar cases had not resulted in death sentences.

Chief Justice Barbara Durham declined to comment on Utter’s opposition to the death penalty but had high praise for the retiring justice.

“He’s had a tremendous impact on the court over the past 23 years and is a moving force behind our proposal to reduce membership on the court from nine to seven members,” she said.

The Senate has approved a membership-reduction bill that is now before the House Law and Justice Committee.

Justice Rich Guy said Utter’s resignation will strip the court of needed experience.

He pointed out that Justice James Dolliver, with 18 years on the bench, will now be senior justice. Durham has been on the bench 10 years; Justice Charles Smith, six years; Guy, five years; Justice Charles Johnson, five years; and Justice Barbara Madsen, two years. Justices Gerry Alexander and Phil Talmadge were elected last November and are in their first year on the bench.

Utter’s stand on the death penalty was hailed by the American Civil Liberties Union.

“Justice Utter has taken a courageous, principled action,” said Kathleen Taylor, ACLU executive director.

“Executions by the state do not deter crime; rather they encourage the use of violence to solve problems,” Taylor said. “The brutality, the possibility of misuse and the availability of life sentences without parole all make capital punishment out of place in a civilized society.”

While Utter won’t leave the bench until April 24, he will not sit on any further cases. The court is in recess until its May term, when it will consider at least one death-penalty case.

While condemning the death penalty, Utter also expressed pleasure with changes in the judicial system.

“It has been my privilege to serve as a court commissioner, superior court judge, judge of the Court of Appeals and justice of the Supreme Court for the past 34 years,” he said.

“In that time, I have served with many fine colleagues and observed the courts change from a predominately all-white male institution to one which increasingly reflects our diverse society.

“The opportunity to participate in the renewed recognition of the scope of our state constitution, and the extension of justice in our courts to all who are able to seek the benefit of the rule of law, has been a remarkable privilege. I only regret that we still fail to provide equal access to justice to all in our state.”

Utter leaves the court with nearly four years left in his six-year term. His replacement will be named by Gov. Mike Lowry. Traditionally, the governor appoints one of a number of persons nominated by the Washington Bar Association.

Lowry press aide Martin Munguia said the governor hopes to name a replacement for Utter by the April 24 resignation date.

“The governor’s attorney already is going over the Bar Association list and will review a second list from the Bar,” Manguia said. “The governor will then decide on which candidates to interview.”

Utter was awarded his law degree by the University of Washington Law School and was in private practice for nearly five years. He served as King County Superior Court Juvenile Commissioner from 1959 through 1964, when he was elected a judge on that court.

He was appointed to the Court of Appeals in 1969. In 1971, then-Gov. Dan Evans appointed him to the Supreme Court to replace Morrell Sharp, who had been appointed a U.S. District Court judge. He served as chief justice from 1979 through 1981.

Utter said he intends to remain active as a private citizen in areas of dispute resolution and assistance to emerging democracies around the world.