3.9 The Devil in the Discretion

3.8 Punctuated Equilibrium

Book Three / 9

Citations to referenced cases appear at the end of the chapter, listed in the order of their appearance in the text.

Among the many defense motions to strike the death penalty leading up to the trial in our court were two that focused on one particular section of the state’s death penalty statute.  In fact, a mere sixteen words of the statute.  Although many months would separate the timing of the two motions — and the judge’s rulings on them — the theories behind them were closely connected.

The first motion flew wide, but the second would find its target.  By the time we all convened in court on that late January day, when the judge would enter his order striking the death penalty, enough time would have passed between the two motions for the judge to dive more deeply into the implications of the statute in action.  Time in which to observe the way its language permitted the impermissible.

The section of the statute at issue in the two motions appeared simple on its face, and therefore susceptible of a simple interpretation.  Or, rather, of several simple interpretations — precisely the aspect of its construction that would bedevil everyone involved.


Washington had been among the states that chose to retain the death penalty in the wake of the Supreme Court’s decision in Furman v. Georgia.  The choice required redrafting the state’s old statute and authorizing legislation to implement its new one.

Like each state’s goal after Furman, Washington’s goal was to ensure that its new death penalty statute did not permit what Furman had found unlawful:  an open, unfettered process in which bias or prejudice, randomness or whim, could influence the sentencing decisions unchecked.  This meant that wherever the statute introduced discretion into its scheme with respect to who dies and who decides, the language had to channel that discretion narrowly, and guide it with specificity.

Channeled discretion was meant to address the third inquiry of the death penalty triptych:  how.  Concerns about randomness or bias in the application of a state’s death penalty scheme had been behind the Supreme Court’s requirement that statutes guide all decisions and all decision-makers with specificity.  What must emerge from a state’s death penalty scheme over time is a rational, lawful, and meaningful basis for distinguishing those who die from those who do not.

In the years immediately following Furman, one solution to the problem of unchanneled discretion seemed obvious:  mandatory sentencing.  If the problem was juries having too much discretion and being free to impose the death penalty for any reason at all — including race-based discrimination — then simply removing that discretion would eliminate the problem.  Mandatory sentencing would mean that every defendant convicted of a crime for which death was the statutory punishment would automatically receive the death penalty.

This solution, however, had its own problems.  First, it didn’t eliminate the opportunity for bias or prejudice so much as it shifted that opportunity back a decision or two:  back to a jury’s decision on whether to convict a defendant for a capital crime, a decision historically fraught with racial discrimination; or back even further to a prosecutor’s decision whether to charge a capital crime in the first place, a decision that may also be tainted by interests and influence, if not implicit bias.

More importantly to the Supreme Court, however, mandatory sentencing in capital cases failed to take into consideration the “diverse frailties of humankind” that might be found in the personal circumstances of a defendant’s life.  Circumstances that mitigated the defendant’s moral culpability for the crimes he committed.

Consequently, in 1976, four years after Furman required states to go back to the death penalty drawing board, the Supreme Court ruled that mandatory sentencing statutes were also unconstitutional.  Laws that imposed a one-size-fits-all punishment scheme onto every defendant convicted of a state’s death-qualifying crime failed to take into consideration each individual’s degree of death-worthiness.

Death penalty statutes, the Court ruled, would have to build into their schemes a way for the sentencing body to consider each defendant’s unique mitigating circumstances.  Only then would states be assured that its juries were authorizing death only for the “worst of the worst”:  those who had committed the very worst crimes, and those who were themselves the very worst individuals.


The drafters responsible for Washington’s post-Furman death penalty statute were mindful of this new bifurcated decision-making structure:  one decision for each of the two “worsts.”  Understanding the requirements pronounced by the United States Supreme Court, they drafted a two-part statute intended to comply with them.

First, the statute defined which crime, exclusively, rendered a defendant eligible for the death penalty.  This crime would be the very worst crime:  aggravated murder.  Aggravated murder was defined as premeditated, first degree murder with at least one aggravating circumstance.  If a prosecutor charged a defendant with this crime, the defendant was automatically eligible for a jury’s verdict of death if convicted.  No other crimes qualified.

Second, the statute established a separate sentencing hearing focused on the mitigating circumstances of the defendant.  If a defendant were convicted of aggravated murder, he or she would be subject to a separate hearing where the jury would consider evidence in mitigation before deciding on that basis whether the defendant deserved leniency.  Leniency, in this context, would mean a mandatory sentence of life in prison without possibility of parole rather than death.  If a jury did not agree that the defendant’s mitigating circumstances warranted the leniency of life, then death was the only option.

This statutory scheme was the state’s response to the Supreme Court’s two-pronged requirement of guided, channeled discretion and individualized sentencing.  It appeared to mirror those two requirements exactly.  The prosecutor would decide whether to charge the offense that made a defendant eligible for the death penalty, and then a jury would decide whether that defendant deserved death.


The two-pronged approach was aimed at eliminating or greatly reducing the possibility of the states’ arbitrary, unlawful imposition of the death penalty.  The larger group of all defendants who commit first degree murder would be channelled narrowly into a smaller group of defendants charged with the death-eligible crime of aggravated murder.  That group would be channeled into an even narrower group of those convicted of that offense.  Then, at the final winnowing stage, the group of those convicted would be subject to a jury’s decision on their individual death-worthiness.

At the end of the funnel, after all that narrowing process, the tiniest group would emerge with a sentence of death:  those who’d been charged and convicted of the state’s very worst crimes, and then found to be the very worst human beings.

Along the way, at every stage where discretion existed in the statute, it would be narrowly channeled.  Just as importantly, however, the basis for each decision would be meaningful, specific, and transparent.  First, the prosecutor’s decision to charge the death-qualifying offense would be based on supporting evidence emerging from the crime itself.  The sufficiency of that evidence would then be channelled through a rigorous, open and adversarial trial, where competent defense attorneys could challenge every assertion of the state’s prosecuting attorney.  If convicted, the defendant could present to the jurors all of the information available about his childhood and personal circumstances in an attempt to convince them to spare his life.

Finally, when the jurors retired to the jury room to deliberate on the defendant’s fate, the most narrowly channeled decision in the statute would provide the best check against the possibility of a costly, undeserved verdict of death:  only one juror out of twelve had to vote against death for a life sentence to be imposed.


As good as that seemed, however, for some reason the drafters of the state’s post-Furman death penalty statute didn’t stop there, with its twice-branching decision tree reflective of the Supreme Court’s two-part, worst of the worst commandment.  Had they stopped there, Washington’s statute would appear fair and transparent, with each discretionary decision narrowly channeled and guided with meaningful specificity.  Had they stopped there, every defendant charged with the same death-eligible crime would proceed equally to the same jury process for determining their individual death-worthiness.

Who dies?  Who decides?  How?  If the drafters had laid down their pencils at this stage, those who died would be all those whom a prosecutor had decided to charge with the death-qualifying crime based on sufficient evidence of guilt, and against whom a jury had decided to impose death based on insufficient evidence of mitigation.  It was almost perfect.

Instead, responding most likely to the state’s association of prosecuting attorneys, the drafters built into the scheme a little more room for a prosecutor to maneuver; a bit more discretion to decide which defendants he would select for a death penalty prosecution, and which he would forever free from that fate.

Into the flow between those charged with aggravated murder and those who die for it, into that flow of guided discretion, the drafters inserted an additional channel, an additional opportunity for some defendants to be siphoned away from death, while the rest continue through the sieve.  This additional channel gave discretion to the county’s prosecuting attorney to decide — alone and in secrecy — to pursue the death penalty against some eligible defendants, and to secure from that fate the rest.

Worse, as the provision would later be interpreted by the state’s Supreme Court, the basis for the prosecutor’s decision could be any information at all.  Or a different calculus with every new decision, including the prosecutor’s own, subjective interest in pursuing death against one defendant, but not another.

By the time the legislators had ratified the state’s new death penalty statute, and the state’s Supreme Court had spent several decades examining its application, its statutory scheme would appear nothing like a constantly narrowing channel with consistently guided discretion.  It would appear, rather, like Saint-Exupery’s drawing of the snake that has swallowed an elephant in The Little Prince:  a mouth opening wide up front into which all death-eligible defendants enter, and a narrow tail at the end through which a handful of defendants have emerged, sentenced to death.  Then, in between, a broad, swollen center where county prosecutors decide in the dark against whom they will pursue the state’s penalty of death.


Who dies?  With the addition of a third channel of broad discretion, the answer became only a random handful selected to face a jury’s verdict on death from all who were eligible.

Who decides?  The third channel gave this decision to each county prosecutor, alone and unchecked, on a record unavailable to anyone outside of his own office.

How?  Anders’ and Mackey’s attorneys had brought their motions to our court for an answer to this final question.  And despite the seeming simplicity of the answer in the language of the statute, its actual complexity would take several years to tackle, to no one’s satisfaction.

3.10 Reason to Believe

… “diverse human frailties” …, Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

Furman v. Georgia, 408 U.S. 238 (1972).

Only then would states be assured …, see, e.g., Glossip v. Gross,135 S.Ct. 2726, 2760 (2015) (J. Breyer dissenting).

And as the provision …, State v. McEnroe, 179 Wash.2d 32 (2013), State v. Monfort, 179 Wash.2d 122, 137 (2013).