It's been on state Attorney General Bob Ferguson's wish list for years, but it's looking more and more likely that a bill to abolish Washington State's death penalty will finally cross the finish line, but not without a fight from freshman Republican Rep. Jenny Graham.
This year’s effort has a lot more momentum than in years past, in part because of the large Democratic majorities in both the House and Senate, but even more so because of a state Supreme Court decision in October.
In that ruling, the court found Washington State’s death penalty unconstitutional as applied.
“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner,” the justices wrote in their unanimous decision.
That left three possibilities: Leave it on the books as is — entirely unenforceable after the court’s decision — or take legislative action to either fix or abolish it.
In a House committee last week, Ferguson explained why he believes the latter is the right move.
“Leaving an unenforceable law on the books increases the risk that we will repeat history. Four times in our state’s history the courts have struck down Washington’s death penalty in a similar way as just happened – as applied. The previous three times, the legislature implemented fixes to the death penalty that ultimately failed to address its arbitrary and racially biased application. I do not think that going through that again would be something the state should do,” Ferguson explained.
There’s been opposition to abolishing the death penalty in our state from Republicans all along. Some want to keep it on the books, and others have tried to include amendments that would allow it to be used in certain cases, like when a person who is already serving life without parole kills again behind bars.
That was the case in 2012, when convicted murderer Byron Scherf — who was already serving life without parole — killed Monroe Corrections Officer Jayme Biendl in the prison chapel.
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Biendl’s family has adamantly opposed abolishing the death penalty for years, saying it effectively means Scherf got away with murder. His and the death sentence of Washington’s seven other death row inmates were commuted to life without parole, following last year’s state Supreme Court decision.
Other critics of abolishing the death penalty argue it’s an important tool for prosecutors who need it as leverage, and some say it’s an issue for voters, not lawmakers.
Rep. Graham agrees the death penalty should remain an option for all of the above reasons, and has the firsthand experience to back up her position: Her sister Debra was one of the dozens murdered by Green River Killer Gary Ridgway.
“My sister was one of the [first] seven cases that he was originally charged with. He was not going to get a way out of her murder. He left the garrote tied around her neck. The paint chips led right back to him. He knew it – he wasn’t going to get out of it. So after that is when he ended up offering – ‘okay, I don’t want to die myself, so I will offer you answers to all of the questions you have, and I will lead you to the other bodies if you take death off the table,’” Graham recalled.
But as much as that example with the Green River killer is used as an argument for keeping the death penalty, those on the other side say it is a prime example of how the death penalty is unfair. The question they pose: How can you sentence someone to death for killing one person, when a man like Gary Ridgeway — who killed more than 50 — was able to cut a deal to avoid it?
And not all victims’ families agree the death penalty should stay on the books. Some told the House committee last week that the grueling — sometimes decade’s long — court process is too hard on the families.
Others, say those death cases take away important prosecutorial resources.
That was the case for Theresa Matthis, whose brother was murdered in 1983. While Matthis’ brother’s murder was not a death penalty case, the prosecutors handling it were also dealing with a separate death penalty case at the time.
“They made it clear to my mother that she needed to understand that they had limited resources and needed to focus them on the death penalty case. Our case was resolved with a quick plea bargain. So while the prosecutor’s office focused on the death penalty case my family was left with unanswered questions. We were left with the impression that our brother’s death was unimportant comp red with a possible death case,” Matthis explained to the committee.
Other critics argue the risk of executing even one innocent person is reason enough to abolish the death penalty, while still others point to the cost concerns.
Studies have estimated death penalty cases can cost roughly one million dollars, which often means smaller county prosecutors can’t even afford to seek a death sentence. For critics, that again speaks to the fairness issue.
Graham takes issue with many of those arguments, especially concerns about the cost of seeking a death sentence.
“What bothers is me is that this is coming down to money,” Graham said in an interview after the hearing.
“I’m sorry it’s our state’s responsibility, and it’s our personal responsibility as state legislators to put the safety of our communities above everything else,” she added.
Graham grilled fellow lawmakers in the committee hearing about their stance on the bill, as well as the AG and former state Department of Corrections Secretary Eldon Vail. Vail headed the Department of Corrections when officer Biendl was killed but, along with several other former DOC chiefs, he supports abolishing capital punishment.
Vail says he understands the concerns in situations like the Biendl killing, but that even that is not enough to keep the death penalty as an option.
“There’s always exceptions but in my experience, I’ve not talked to prisoners — and I’ve talked to a lot of them over 3 decades — who contemplated what the sanction might be for their criminal behavior. It’s not going to slow anybody down to think that, ‘gee, I shouldn’t do this because I might get the death penalty,” Vail told the panel.
Graham, who says she’s heard from several corrections officers concerned about the bill, firmly disagrees.
“If they kill another inmate or they kill a guard in prison — if there’s no doubt at all that they did it — then on those cases, I do believe in capital punishment. Nobody is going to tell me that that is not a deterrent. I don’t believe that, “Graham said.
Graham also voiced strong concerns about abolishing the death penalty in favor of life without parole, when there is already a separate bill that could essentially eliminate the possibility of life without parole.
That bill would allow inmates to petition for early release after serving 20 years if they meet certain criteria. While that is considered dead for this session, Graham and other Republicans suggest it could be resurrected either this session, or in future sessions after the death penalty is abolished.
Ferguson made clear in the committee hearing he would not support that, saying the only way he supports abolishing the death penalty is if life without parole remains the alternative.
The bill to abolish the death penalty has already passed the State Senate, and is expected to be voted on in the House Public Safety Committee early this week. That won’t without more pushback from Graham, though.
“I don’t love the death penalty, and if we lived in a perfect world it wouldn’t be necessary. But we don’t live in a perfect world, and there is no place in this world that we have a perfect justice system. I support doing whatever it is we need to do if there is a question of somebody’s innocence,” Graham said, pointing to advances in DNA and other technology that make it less likely the wrong person will be convicted.
“But we can’t go the other direction either, that we just let everybody out,” she added.
Despite her concerns, the bill to abolish the death penalty is expected to pass in the House largely as it did in the Senate, along party lines.
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