SENATE BILL 5476 (excerpted)

State of Washington 61st Legislature 2009 Regular Session

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Read first time 01/23/09. Referred to Committee on Judiciary. Feb. 10, 2009, public hearing in the Senate Committee on Judiciary at 10 a.m.

AN ACT Relating to abolition of the death penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 10.95.030 and 1993 c 479 s 1 are each amended to read as follows:

Any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer and the indeterminate sentence review board or its successor may not parole such prisoner nor reduce the period of confinement in any manner whatsoever including but not limited to any sort of good-time calculation. The department of social and health services or its successor or any executive official may not permit such prisoner to participate in any sort of release or furlough program.

NEW SECTION. Sec. 2. The following acts or parts of acts (related to existing death penalty statute) are each repealed: ...

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SENATE BILL REPORT

Background: Washington's current death penalty statute was enacted in 1981. Of the 30 people that have been sentenced to death since 1981, four have been executed.

A death sentence may be imposed only against those persons convicted of aggravated first-degree murder and only after a special sentencing proceeding has been held to determine whether the death penalty is warranted. All death sentences must be reviewed, on the record, by the Supreme Court of Washington.

Washington utilizes two methods of execution: lethal injection and hanging. Lethal injection is used unless the inmate under sentence of death chooses hanging as the preferred execution method.

Thirty-seven other states and the federal government have the death penalty. In recent years, the U.S. Supreme Court has banned execution of mentally retarded and juvenile offenders. In addition, the Court has held that a death sentence is only appropriate for murder convictions.

Analysis

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony: PRO: How many cases do we see about prisoners who were subsequently exonerated? There are questions surrounding the humanness of lethal injection and these questions should be more closely examined. Most people would agree that America is a violent country and the death penalty plays a factor in this. Consider violent warfare in Iraq: we fabricate reasons to kill, we have a war on terrorism, we have torture, we come up with waterboarding, and we have the death penalty. My hope is that ending the death penalty will end the cycle of violence. The Washington State Catholic Conference issued a statement calling for the abolition of the death penalty. Concerns include the vastly disproportionate sentence for those whose victims are white. When the desire for vengeance motivates us to condone state-sanctioned killing, we are all worse off.

The death penalty robs precious resources from law enforcement and prosecutors and uses them to prosecute only one case. We need to take the money we spend on the death penalty and put it into victim resources. Victims' families have told me they want answers from the killers, not to have them put to death. The time is ripe to fully discuss this issue. As a member of this community, I need to look back over a decade to see the crimes that people are being put to death for now. Life without parole is an alternative that does not force the community to re-live the crime ten years later.

Persons Testifying: PRO: Senator Murray, prime sponsor; Jack Smith, citizen; Kim Sheley, Washington State Catholic Conference; Jeff Ellis, Washington Coalition to Abolish the Death Penalty; Stefanie Anderson, Amnesty International.

Agency Fiscal Reports

Fiscal Impact on the Courts

There is no data available to estimate the fiscal impact of this bill. However, it is assumed the fiscal impact would represent a cost savings for the Supreme Court from not reviewing death penalty cases and Superior Courts from savings not trying death penalty cases. It is possible that the Courts of Appeal could see a slight increase in appeals.

Superior Courts would achieve savings from trying aggravated murder in the first degree cases where the death penalty was not the sentence upon a conviction. A number of procedures and activities in death penalty cases add to the cost of these cases and many of these procedures and costs are discussed in the Washington State Bar Association (WSBA) "'Final Report of the Death Penalty Subcommittee of the Committee on Public Defense," published in December 2006. In cases where the death penalty is a potential sentence, a Supreme Court rule requires the appointment of two attorneys, with at least one attorney qualified to try capital cases. These cases require a "mitigation investigation," which is information about the defendant's past a jury may consider in deciding whether the sentence should be death or life without the possibility of parole. The mitigation information is also reviewed by the prosecutor in determining whether to file a notice of intent to seek the death penalty. The cost of mitigation investigations can be considerable, a recent investigation from Spokane Superior Court has the cost of a single investigation and report at $19,479.

Compared to other felony cases in Superior Court, in capital cases more time is spent on complex pre trial motions, legal challenges and jury selection. Jury Selection is more complex with many more jurors summoned than in a typical jury trial. Also, the process of selecting a jury is much more involved with jurors having to provide additional written material and the court and attorneys reviewing these juror questionnaires. The WSBA report states that jury selection can "take as long as 30 days in a capital case." In other cases jury selection takes a day, or sometimes two days. Should a jury find a defendant guilty of aggravated murder in the first degree then the same jury would convene for a "penalty phase." In the penalty phase the jury decides whether the sentence should be death or life imprisonment without the possibility of parole. This phase can last from a few days to longer than a week.

The WSBA report cites an Administrative Office of the Courts analysis, that concludes that should a capital case last between 20 to 30 days longer than a typical felony case, "then the extra cost in terms of trial court operation would be $46,640 to $69,960." It is important to note that not all Superior Courts incur the increase in costs for capital cases to the same extent. Larger counties tend to have separate departments of assigned counsel that are not part of the court operation, who would incur the costs of the additional attorney costs and perhaps the costs of the mitigation investigation. This may not be the case in small counties where the Superior Court budget includes the cost of defense attorneys, mitigation investigations and other expert costs.

As with Superior Courts, the Supreme Court would achieve savings by not hearing appeals of capital cases. In the Supreme Court an appeal of a capital case is mandatory for a review of the sentence and an appeal of the judgment. These cases by RCW require the Supreme Court to review specific issues concerning whether sufficient evidence existed to justify the jury's determination of insufficient mitigating circumstances; whether the sentence was a product of passion or prejudice; whether the sentence is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant; and whether the defendant was mentally retarded.

In the Supreme Court additional procedures are required by Supreme Court rule. Two attorneys must be appointed to represent the defendant with one of these attorneys from the death penalty qualified list; every hearing must be transcribed and a proportionality analysis must be made; and the time for argument in capital cases is three times longer than in other cases.

If there is a Supreme Court decision that is adverse to the defendant, then within one year from that decision a Personal Restraint Petition (PRP) may be filed by the defendant in the Supreme Court that can raise issues not previously considered at the appellate or trial proceedings. These PRP proceedings also require that two attorneys be appointed, with at least one being an attorney qualified from the death penalty qualified list, the briefing to the court is increased, experts and investigators may be appointed and the hearing must be transcribed.

The amount of additional time that a Justice and staff assigned a capital case spends on such a case is considerably more than with other case assignments. It is estimated that currently the Supreme Court Clerk spends 10 to 15 percent of his time on capital cases while another member of the Clerk's Office staff spends 20 percent of her time.

The Courts of Appeal might well experience an increase in the number of appeals of sentences in aggravated first degree murder cases as the only possible sentence under this bill would be life imprisonment without possibility of release or parole. It is not possible to quantify this increase now, but it would be a small number of appeals. According to information provided by the Sentencing Guidelines Commission, there were eight convictions in 2008 for aggravated murder in the first degree. This compares to 1,419 criminal appeals filed in all three divisions of the Courts of Appeal in 2007. So compared with the total number of criminal appeals filed in the Courts of Appeal these eight additional appeals would have a relative minor impact on the courts.

Fiscal Impact on the Department of Corrections

Fiscal impact is indeterminate. There is not sufficient information available to estimate impact, and too many variables exist to create an accurate cost.

We estimate that some savings could occur in the 2009-2011, 2011-2013 and 2013-2015 biennia. It is possible that the cost impact would become small to neutral for several years thereafter. The cost of the bill would gradually increase over subsequent years as the population of offenders sentenced to life without possibility of parole increases and ages. The increase in population is anticipated to be small, potentially one additional offender per biennium.

It is possible that four life without parole sentences per decade would be imposed that under current law would be death sentences. This assumption is based on information from the Sentencing Guidelines Commission on death sentences imposed from Fiscal Year 1999 through Fiscal Year 2008. Given the small number of cases, savings associated with changes to the law would be small, but possibly larger than $50,000 per year.

The last execution occurred in 2001. The cost of an execution includes DOC costs as well as state Attorney General services associated with death penalty cases. Costs are difficult to estimate due to the variability of each case.

Report from the Sentencing Guidelines Commission:

Impact on the Sentencing Guidelines Commission: This bill would not require modification of the Commission's database and data entry programs.

Impact on prison and jail beds: Impact is indeterminate. In Fiscal Year 2008 there were eight Aggravated Murder sentences, all resulting in a Life Without Parole sentence. Since FY88 there have been 19 Aggravated Murder sentences resulting in a death sentence, the most recent having been in FY03. This bill turns a death sentence into a sentence of Life Without Parole. The Sentencing Guidelines Commission is unable to provide impact analyses; however, any impact would be in prison beds only.

Summary of Expenditure Impacts

The fiscal impact of this bill is indeterminate, because the number of offenders subject to this bill, and the number of hearings and appeals that may not be held cannot be predicted. Costs for counties include both prosecution and defense. There are limited data available to predict differential expenses for aggravated murder cases tried with the death penalty instead of life imprisonment. Counties pay for prosecuting and defense costs through the initial trial, the automatic appeal to the State Supreme Court, any appeal to the US Supreme Court, and any personal restraint appeals (including state Appellate Court, state Supreme Court, and US Supreme Court). Habeas Corpus motions in federal court are state expenses. There are also Washington State Court rules specific to death penalty cases that specify that at least one of the defense attorneys be "capital certified," that there be two attorneys assigned to the case, that the attorneys are working only the capital case, and have appellate experience.

An aggravated murder case becomes a death penalty case after the prosecuting attorney files a Notice of Special Sentencing Proceeding prior to trial. In order to make a decision about filing the notice the prosecutor receives a "mitigation package" prepared by defense attorneys using investigators and mitigation experts. Mental health evaluation and other expert examinations are included in the mitigation package. The Bar Association published a report on the death penalty in April of 2007 that finds the defense cost for preparing a mitigation package averages $30,000. This expense is not required for non-death penalty case, but is required as a part of the death penalty decision making process. The court rules for counsel apply through out a death penalty case, but cease to apply once a decision is made not to seek the penalty (Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, Washington State Bar Association, April 2007).

Possible increased expenditures for death penalty cases result from more difficulty seating a jury, additional hearings including the two-phase nature of death penalty proceedings, (trial and penalty phases) and the likelihood that defense efforts for death penalty cases will include extra hearings to determine each detail of the defense. Additional hearings to litigate each detail of a case require paying experts to examine the defendant, paying for the expert to appear at additional hearings, and paying for defense expert(s) to appear, and then both prosecution and defense experts to appear at penalty phase sentencing proceedings. This bill will change all death penalty cases into life imprisonment cases.

There are differences in the number of appeals for death penalty cases as opposed to aggravated murder life cases. Not every life sentence is appealed while direct appeals to the State Supreme Court are automatic for death penalty cases. Conversely, life sentence appeals go first to the Court of Appeals and then the State Supreme Court, (death penalty cases skip the Court of Appeals going directly to the upper court). The Office of the Attorney General handles all habeas corpus cases made to the US Supreme Court, and they find a nearly 100 percent rate of appeal for death sentences at that level. The federal habeas corpus petition is usually the last step in the appeal process.

Prosecution Expectations:

According to a 2008 Prosecution Cost Survey, it costs $21,456 on average to try a homicide case including existing local appeals, but aggravated murder cases that lead to life imprisonment and death penalty cases cost significantly more. All aggravated murder and death penalty cases are expensive, the costs to prepare and try death penalty and aggravated murder life imprisonment cases are similar, the same standards of proof and hearings are involved. The major differences between the two types of cases are lengthier trials (jury selection for death penalty cases can be very lengthy) and appeals (Pierce County Prosecutor). The Washington Association of Prosecuting Attorneys (WAPA) points out that the cost of any case is specific to each. Cost factors include quality of evidence and availability of witnesses. Some aggravated murder cases cost significantly more to prosecute than death penalty cases.

Defense expectations:

Virtually all death penalty cases qualify for public defense. The Washington Defender's Association (WDA) estimates the cost of a complete death penalty defense at $360,000 to $500,000. The Washington State Court Rules set requirements for capital cases including the use of "capital-qualified" attorneys. These attorneys have a minimum salary of $125 an hour. The rules also require two attorneys and a mitigation investigator per case to try the case and prepare the mitigation package for the decision on filing the special notice and the penalty phase. WDA estimates that the cost of a capital defense is at least twice that of a life imprisonment case. The Pierce County Office of Assigned Counsel has handled many cases of both types and provided a cost differential for defense. The estimate for life cases ranges from $35,000-$50,000 with a high of $100,000, while the death penalty estimate ranges from $300,000-$500,000 with a high of $600,000.

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