3.10 Reason to Believe

3.9 The Devil in the Discretion

Book Three / 10

Five sub-parts into Washington’s death penalty statute appear sixteen words.  These words tell the prosecuting attorney when he must pursue a death penalty prosecution against a defendant charged with aggravated murder:

If a person is charged with aggravated first degree murder …, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.

This provision describes the second of the statute’s three discretionary decisions.  The first is the prosecutor’s initial decision to charge the death-eligible crime, and the third is a jury’s eventual verdict on the penalty to be imposed:  life or death.

Between those two bookend decisions is this third, middle one.  It authorizes each county prosecutor to select some death-eligible defendants for a death penalty prosecution, and not the rest.  Even though, at this stage in the statute’s scheme, all have been equally exposed to a possible death sentence by virtue of having been charged with the same death-eligible crime.

Importantly, those defendants not selected by the prosecutor will never receive a death sentence.  The prosecutor has decided to ‘sentence’ each of them, on his own and off the record, to a sentence of never death.  None of them will ever face a death penalty prosecution, or a jury’s verdict of death.

On what basis — the attorneys were now asking our court to determine — may the prosecutor make that decision?  A quick reading of the statute’s language suggested that the basis was the sufficiency of a defendant’s mitigating circumstances:  when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.  Or, as one of the defendants’ attorneys described it in her motion, the statute tasked the prosecutor only with “considering whether the mitigating factors independently merited leniency.”

By their own admission, however, county prosecutors were making their decisions to pursue the death penalty against some but not others on the basis of many other factors.  The implications of their decision from case to case were enormous for any particular defendant.  The decision was literally one of life or the possibility of death.

The implications of the prosecutors’ decisions were also enormous for the larger question of whether the state’s death penalty statute was constitutional in its overall application.  As years passed and the statute was applied to consecutive cases, did there emerge from the prosecutors’ decisions a pattern of arbitrary imposition, suggesting randomness or whim from case to case?  Or did the pattern reveal a meaningful distinction between those who received the death penalty and those who did not?


The crux of the attorneys’ dispute was found in just three of the sixteen words:  reason to believe.  Did a prosecutor have to find his reason to believe that a particular defendant’s mitigating circumstances were insufficient only in those circumstances themselves?  Or could he find it anywhere in the entirety of the crime and the case?

Defense counsel were arguing that the prosecutor’s decision at this stage had to focus exclusively on their clients’ mitigating circumstances, on the evidence of those circumstances available at this early stage of the prosecution.  This is what the Supreme Court had required, they insisted, when it imposed two bright line standards for the states’ death penalty statutes:  narrowly channeling discretion that guided each consecutive decision with specificity, and individualized sentencing.

Additionally, they wrote in their briefs, it’s what the legislature had intended out of deference to the high court’s interpretation of a defendant’s constitutional protections.  Our legislators, the attorneys urged, had drafted the state’s death penalty statute to mirror closely the Supreme Court’s two standards to ensure that all discretion was channeled and closely guided throughout the entire process.

Specifically, defense counsel had explained in their motion, the statute instructs the prosecutor to decide first whether to charge the death-eligible offense based on a discrete set of facts:  the crime allegedly committed and the sufficiency of the evidence available to prove it.  Then, if he has charged that offense, the statute directs him to shift his focus to the next set of discrete facts:  any personal circumstances of the defendant that mitigate his moral culpability.  In their bid to ensure the constitutionality of their new death penalty law, the state’s legislators allowed no room for a prosecutor’s discretion on this second decision that was not laser-focused on the specificity of death-worthiness alone.

In sum, defense counsel concluded, when a prosecutor is considering whether to pursue the death penalty against a defendant who is eligible for death by virtue of having just been charged with the eligible offense, his reason to believe that yes, he should pursue death, or no, he should not, must be found solely in the mitigating circumstances of the individual defendant before him.  He must confine his inquiry to the quantity of that evidence, its quality, whether there existed corroboration for it, and how persuasive it was on the issue of actual death-worthiness.

Restricting a prosecutor’s reason to believe to the mitigating circumstances themselves ensured compliance with Furman’s constitutional requirement of narrowly channelled and guided discretion at this second stage of examining a defendant’s death-worthiness.  Anything less would violate that requirement.

The State, of course, did not agree that the legislature’s intent was to draft a statute that mirrored the Supreme Court’s two primary principles, and thereby restrict the breadth of their inquiry.  Rather, the prosecutor interpreted the sixteen words as establishing a weighing analysis:  reason to believe was on one side, and sufficiency of the defendant’s mitigating circumstances were on the other.  The prosecutor was arguing that when his office was tasked with deciding whether to pursue the death penalty against an eligible defendant, his reason to believe could be anything at all if it were relevant to the case.  And it need only create a featherlight impression on the scales to outweigh mitigation.

For instance — the State explained in its brief — a prosecutor’s reason for pursuing death against one defendant might be the undeniable heinousness of the crime itself, while his reason for not pursuing death against another defendant could be concerns about his ability to prove that the defendant had even committed the crime.

Prosecutors, the State claimed, had to approach each of their two decisions under the statute holistically, without having their hands tied by the need to refrain from considering certain types of information if it could help them decide whose death to pursue.  To do otherwise — using a phrase that would later be echoed by our own Supreme Court — would defy common sense.

Moreover, the State argued, if a court were to follow the defendants’ interpretation of the statute it would produce “absurd results.”  Two examples served as illustrations.

In the first example the defendant has a lengthy criminal history and there exists strong evidence that he actually committed the heinous, death-eligible crime of which he stands accused.  But he also presents powerful personal mitigation — severe childhood abuse, perhaps.  If the court were to follow the defense interpretation of the statute — the State argued in its brief — the prosecutor in such a case would be required not to pursue the death penalty despite the brutality of the crime, simply because the individual’s mitigating circumstances were so compelling.

Conversely, in the second example is a defendant against whom the State may lack sufficient evidence of guilt of the death-eligible crime charged.  In other words, the prosecutor is concerned that he’ll be unable to prove at trial that the defendant actually committed the crime.  In this example, however, the defendant can produce no personal mitigation at all.  He appears to be truly the very worst individual.  And yet — the brief’s illustrations continued — if the court were to follow the defense interpretation of the statute, the prosecutor in such a case would have to pursue the death penalty once the State charged him with the death-eligible crime.  Despite the possibility of being unable to convince a jury of his guilt.

Such an interpretation, the prosecutor wrote, “simply cannot be the law.”

Furman had required that the states’ death penalty schemes constantly narrow discretion and provide specific guidelines for each decision along the way.  The prosecutor had insisted in his brief, however, that to prevent absurd results a court had to “avoid reading a statute in an overly narrow or constrained manner.”  To the contrary, he sought to explain, a prosecutor’s death penalty decision had to be entirely unconstrained by guidelines, and immune from scrutiny by anyone outside his own ambit.


We had received and reviewed the parties’ briefing on this first of the defendants’ two motions that asked the court to strike the death penalty on the grounds that the prosecutor’s frame of inquiry was too broad.  It was the motion the judge would soon deny, before eventually finding the perspective from which to grant their requested relief.  That occasion, however, when he would grant their motion and strike the death penalty, was still months away.  On this date we had convened to hear the attorneys’ oral arguments from their first round of briefing.

Defense counsel had been pressing the court hard that day to require the prosecutor to tell them the exact reasons why he had pursued their clients’ deaths specifically.  They wanted the record to reflect those reasons both to prepare their cases for trial, and to support their position on appeal.  They explained to the judge that they needed to know the facts on which the prosecutor had based his decision so they could prepare their clients’ defense.

It was an important point, and another on which the attorneys did not agree.  At this stage the prosecutor was insisting that his decision to seek death against an eligible defendant was a charging decision.

Prosecutors have nearly complete discretion to charge a particular offense against an individual.  A court may only examine that decision if there doesn’t appear to be a sufficient factual basis for it.  The file of every criminal case, however, will contain law enforcement’s probable cause for the arrest, along with the prosecutor’s charging document that contains additional information about the facts of the alleged crime and the basis of the charges.  On most occasions those documents will satisfy defense counsel, and both will appear in a record that is open for their review.  Additionally, there are laws that require the prosecutor to give to the defense, for their trial preparations, all evidence in the State’s possession that both prove and disprove the defendant’s guilt.

Now, at the hearing that day, the prosecutor would insist that this same broad discretion applied to his decision to seek the death penalty, but was accompanied by no such requirement to share the evidence behind that decision.  Even though the basis of a prosecutor’s charging decisions had to appear in the open record, the basis for his decisions to pursue the death penalty — made with the same broad charging discretion — could be kept private.

And the evidence on which he relied could be forever concealed from the defense, from the trial judge, and from the reviewing court on appeal.  The prosecutor would insist that day that not only was such an arrangement logical and necessary, it was also constitutional.

The defendants disagreed, and they’d been fiercely advocating their position through the first half of the hearing.  The prosecutor’s decision — the defense attorney had argued — whether to pursue the death penalty is a sentencing decision, not a charging decision.  Further, she’d urged, the courts have a duty to review sentencing decisions to ensure their compliance with constitutional and statutory standards.

If a prosecutor were allowed to decide privately whether to pursue a defendant’s death on a reason to believe that would forever remain unreleased to the record, and if the court agreed that this decision was merely another of the prosecutor’s charging decisions, to be made without judicial oversight, then the defense could never know those reasons, or prepare to defend against them at trial.  And counsel could never successfully challenge their constitutionality before a trial court, or on appeal.  It was critical that the prosecutor — right now at that very hearing — inform the defendants of his reasons for seeking their deaths.

After the defense concluded its arguments the prosecutor approached the bar to answer the judge’s questions.  He defended his office’s policy — as he termed it — under the state’s death penalty statute, insisting that he owed the defendants no explanation.

As he spoke the attorney who had argued for the defense that day occasionally popped up from counsel tables, trying to interject a few rapid rebuttals.  The prosecutor’s face began to redden from his frustration with her interruptions, with her insistence that he inform her of the reasons why his office had decided to pursue the defendants’ deaths despite all the evidence in mitigation they’d presented.  His exasperation with their position was clear.  It was less clear whether he was pretending that it had no merit, or truly believed that it didn’t.

Finally, standing sideways at the bar, the prosecutor raised an arm toward the defense attorneys sitting at the table behind him, as though to emphasize that he’d reached his limit with them.  “You wanna know the reasons?”  He asked rhetorically, forcefully.  “You wanna know why the notice was filed in these cases?  I’ll tell you why,” he thundered, punching a finger backward toward the defendants.  “Six dead bodies!  That’s why.”


At the conclusion of the hearing the judge and I returned to his office.  We’d discussed the motion and the issues it presented many times before.  The question now was whether we’d learned anything new from the attorneys’ arguments that day.

3.11 A Dispassionate Gatekeeper