Washington’s Abolition Illustrates the Value of “Strategic Gradualism” in the Struggle to End the Death Penalty

Posted in: Criminal Law

On Thursday, Washington’s Democratic Governor Jay Inslee signed legislation abolishing capital punishment in that state. It marked another important victory for those seeking to end America’s death penalty, though it took a very long time for even that deep blue state to achieve this result.

The story of how Washington State did so illustrates the value of what law professor Jeffrey L. Kirchmeier has called “strategic gradualism” in the anti-death penalty movement. Kirchmeier originally used the phrase to describe the death penalty jurisprudence of the late Supreme Court Justice Ruth Bader Ginsburg.

According to Kirchmeier, “Ginsburg recognized problems with the implementation of the death penalty…. In 2011, she told law students that she hoped the court one day would hold that ‘the death penalty could not be administered with an even hand.’ Despite those concerns, Ginsburg, taking a methodical approach, never wrote an opinion declaring the death penalty unconstitutional in all cases.”

“Her approach to capital punishment cases,” Kirchmeier argues, “grew from a thoughtful strategic decision. She believed she could be more influential by participating directly in the court’s decisions analyzing capital punishment rather than by taking a broad position that the death penalty always violated the Constitution.”

“So, even though,” as Kirchmeier notes, “Ginsburg declared to an audience in 2017, ‘If I were a queen, there would be no death penalty,’ she approached the death penalty not as a monarch, but as a jurist, carefully carving away with a scalpel to expose the problems she saw with America’s system of executing people.”

“Carefully carving away with a scalpel to expose the problems…with America’s system of executing people” is an apt way of describing what brought Washington State to the place where it could abolish its death penalty.

Washington’s capital punishment story begins more than a century ago in 1913 when Governor Ernest Lister signed the state’s first death penalty abolition bill. Legislative consideration of that bill had an almost modern ring to it with its proponents claiming that the “existing law not only had failed to lessen crime, but was unjust and inhumane.” They argued that “convictions were hard to secure under the existing law.”

Those who wanted to retain capital punishment said that “abolition would increase crime.” They add that “There are too many brutal murders… We must send murderers to the gallows.”

Six years later in 1919 those arguments carried the day, and the death penalty was reinstated in Washington.

The state’s off-again-on-again death penalty history took another turn in 1975 when capital punishment was ended for a second time. But this abolition did not last long.

Washington’s death penalty was restored as a mandatory punishment for first-degree aggravated murder through a ballot measure in November of that year.

The Death Penalty Information Center reports that the new law “was itself found unconstitutional by the Washington Supreme Court, as a person who had pled not guilty could be sentenced to death, while someone who pled guilty would receive a maximum sentence of life imprisonment without possibility of parole.”

A new death penalty law was passed in 1981 to correct these constitutional defects. But Washington never became a very active death penalty state. It put only five people to death from 1981 to 2010, the date of its last execution.

The latest era in Washington’s death penalty history began in 2014 when Gov. Inslee announced a moratorium on executions. In the run up to that announcement he regularly signaled his qualms about capital punishment.

And he undertook what his office described as “months of careful review of the status of capital punishment in Washington state including research on current cases, discussions with prosecutors, law enforcement officials, and family members of homicide victims, and a tour of death row and the execution chambers at Walla Walla State Penitentiary.”

At the time he imposed the moratorium, Inslee said, “Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred.”

“I want to acknowledge,” the governor continued, “that there are many good protections built into Washington state’s death penalty law. But there have been too many doubts raised about capital punishment. There are too many flaws in the system. And when the ultimate decision is death there is too much at stake to accept an imperfect system.”

But, following the kind of gradualist strategy that Kirchmeier described, Inslee went out of his way to ensure that no one would mistake his action for a frontal attack on the morality of the death penalty itself or a gift to the people on his state’s death row.

“Let me say clearly that this policy decision is not about the nine men on death row in Walla Walla,” the governor explained, “I don’t question their guilt or the gravity of their crimes. They get no mercy from me. This action does not commute their sentences or issue any pardons to any offender. But I do not believe their horrific offenses override the problems that exist in our capital punishment system.”

The next step on the way to what Washington did last week occurred when researchers at the University of Washington conducted a rigorous and careful examination of the state’s death penalty system. They did so at the behest of a legal team representing an African American man on the state’s death row. Those lawyers asked them to do a statistical analysis of Washington’s death penalty cases to see if race played a role in death sentencing.

Among the key findings of the study was that “juries imposed death in 38.8 percent of the cases involving non-black defendants, but 64.3 percent of the cases involving black defendants.”

That study and its findings set the stage for another step in Washington’s gradual abolition of capital punishment which occurred on October 11, 2018 when the Washington Supreme Court declared the state’s death penalty statute unconstitutional, saying that it was applied in an arbitrary and racially discriminatory manner.

But, as The Seattle Times reported, “The court did not rule out the possibility that the Legislature could come up with another manner of imposing death sentences that would be constitutional”

And, until Thursday, Washington’s death penalty law remained on the books.

In the end, abolition in that state came through a set of incremental steps—gubernatorial investigation, followed by a moratorium and a scholarly study documenting the death penalty’s defects, then litigation and a court decision, followed by several legislative efforts at repeal before one finally succeeded.

A scalpel well used, instead of a sledgehammer.

By the time abolition came, the ground had been well prepared and the public had been given a chance to learn for itself that neither justice nor public safety were endangered by the withering away of capital punishment.

The wisdom of RBG’s strategic gradualism was borne out by what happened last week in Washington just as it has been in many of the other states which in the last decade and a half have abolished capital punishment. In the Evergreen State and elsewhere that approach gives reason to think that this time the death penalty has been put to rest once and for all.

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