Death penalty rarely applied but still a tool

SEATTLE – In an interview early this year, Pierce County Prosecutor Gerry Horne called Washington state’s death penalty law a “farce” and suggested it is so ineffective that the Legislature should consider getting rid of it.

When the time came to find an abducted 12-year-old Tacoma girl, though, he was glad to have it. Four days after Zina Linnik disappeared, Horne – believing time was running out to find her alive – promised not to seek the death penalty against the suspect, Terapon Adhahn, if he would tell detectives where she was. Adhahn agreed, leading them to her body in rural Pierce County.

Without the death penalty, “we would have no leverage in some instances,” Horne said. “It’s nice to have that tool in your kit.”

Horne’s attitude reflects the evolving considerations prosecutors in Washington weigh when dealing with potential capital cases. For generations, prosecutors here refused to use the death penalty as a “bargaining chip” in obtaining guilty pleas.

Agreements to spare serial killers Robert Yates in Spokane County and Gary Ridgway in King County in exchange for confessions or help finding remains – though both unique cases – opened the door to some extent.

Prosecutors also know it’s extraordinarily expensive to seek the death penalty, capital sentences are likely to be overturned on appeal, and virtually no one gets it against their will. The state has pursued death in 79 cases over the past 25 years; of the four people executed, three waived their appeals and volunteered to be killed. That raises an implicit question: In the face of such odds and expense, why not bargain away the death penalty if there’s something to gain?

“You don’t have a hammer if you’re offering someone the choice of life in jail or life in jail,” said state Rep. Chris Strow, R-Clinton, who supports using the death penalty as a bargaining chip when necessary. “In this case, there was a hammer that could be used, and it was appropriately used to resolve a very unfortunate situation.”

Tom McBride, head of the Washington Association of Prosecuting Attorneys, noted that because of the urgency of Zina’s disappearance and the hope of finding her alive, Horne’s decision can’t be directly compared to typical cases of bargaining with the death penalty. There are good reasons prosecutors across the state have almost always avoided that practice, he said.

For one, even a remote threat of execution is powerful enough that it could coax false confessions from suspects. Secondly, whether the death penalty is imposed should be based on the facts of a crime, including aggravating and mitigating factors – not on the defendant’s cooperation or plea afterward, McBride said.

In typical sentencing proceedings, judges do consider whether a convict has accepted responsibility. That partly helps determine the extent to which the person poses a future risk to society, and thus, when the person should be released. In aggravated murder convictions, there is no potential release – only life in prison or execution – so whether the defendant cooperates after the crime is less relevant, McBride said.

“This argues for a just-deserts analysis that should focus more on the facts of the crime,” he wrote in an e-mail to the Associated Press.

Horne said many of those factors were in his mind July 12 when he took the death penalty off the table in the Adhahn case. But his overriding concern was that Zina might still be alive, bound and gagged somewhere, dying of thirst. Another girl Adhahn is accused of abducting and brutally raping survived after being left in a remote part of Fort Lewis in 2000.

If promising that Adhahn would not face the death penalty is what prompted him to lead detectives to the girl’s body, “I’m absolutely thrilled this information was obtained and I hope it provides some solace to the victims,” said Seattle defense attorney Jeff Ellis, president of the Washington Coalition to Abolish the Death Penalty.

But he added that he believes people are too quick to assume that without the threat of execution it would be impossible to obtain such information from murder suspects.

And using the death penalty as a bargaining chip presents other problems, such as compounding the randomness of who is sentenced to die, Ellis said.

He compared Adhahn’s case to that of Clark Elmore, who is on Washington’s death row for killing his girlfriend’s 14-year-old daughter in Whatcom County in 1995. Adhahn’s cooperation after Zina’s death will help him avoid the death penalty if he’s convicted, but Elmore’s confession and guilty plea didn’t help him.

“For years and years, the line from prosecutors across the state was, ‘We will not use the death penalty as a bargaining chip,’ ” Ellis said. “If you ask prosecutors today, the reason they say they need it is to use it as a bargaining chip. … Go explain to Clark Elmore why he remains on death row.”

The state Supreme Court upheld Washington’s capital punishment law 5-4 last year but invited lawmakers to reconsider the death penalty’s fairness in light of late King County Prosecutor Norm Maleng’s decision in 2003 to spare the life of Ridgway, the Green River Killer. Ridgway pleaded guilty to killing 48 women, and helped authorities find remains, in exchange for life in prison without release.

The court is again considering the state’s death penalty law in the case of Yates. He pleaded guilty in Spokane County Superior Court to 13 murders after the prosecutor agreed not to seek the death penalty, but Pierce County refused to bargain, and he was sentenced to death for two murders there. His appeal was argued late last year.