NW Lawyer - March 2015

they might seek the death penalty in a Port Orchard, Washington murder case (Kitsap Sun, Nov. 18, 2014, “No Decision on Death Penalty in Woman’s Slaying”). The decision appears to rest on applicability of an appropriate “aggravating factor.” Revised Code of Washington 10.95, applies only to aggravated murder in the first degree. Premeditation and a statutorily defined “aggravating factor” must be proven. Among the now numerous factors are contract killing, killing a law enforcement officer in performance of duties, and committing the crime while fleeing from prison or already serving time. Washington disallows the death penalty for a felony in which one was not directly responsible for the murder (“felony murder doctrine”). It prohibits the penalty for minors and those with intellectual deficits. A jury determines the sentence.

Attorneys must be on the state Supreme Court’s list of attorneys qualified to represent defendants facing capital charges. This requires an annual class and extensive experience defending serious felony cases or having served on a legal team for a death penalty defendant.

Recent Attitudes

As Washington defense lawyer Mark Larrañaga observes in his web-based article “Are We Moving Away from the Death Penalty?” Oct. 10, 2014, historically, Washington has taken an active role in defining evolving standards for the penalty. For example, in 1993 Washington concluded that a mature society can no longer tolerate the execution of juveniles or individuals with intellectual deficits. Seven Washington Supreme Court justices since 2006 have concluded that the death penalty has failed.

Recently, various groups, such as civil rights and religious-based organizations, have announced renewed pushes to end the death penalty. However, polls still show support for the penalty. (“Can the Death Penalty Be Abolished?,” by Sandhyn Sonashekhar, Washington Post, Dec. 9, 2014, citing a poll showing 60 percent of Americans still support the death penalty, down from 80 percent in 1994.)

On Jan. 26, 2015, House Bill 1739
and companion Senate Bill 5639, which
would abolish the death penalty in
Washington, were introduced. On Feb.
19, 2015, the bill died when Rep. Laurie
Jinkins, D-Tacoma, chairwoman of the
House Judiciary Committee, decided
not to address the bill on the last day to
do so, saying it was not the right time
because public support remained lack-
ing. However, Rep. Reuven Carlyle,
D-Seattle, who introduced the bill,
expressed confidence the bill would
progress next year. Considering the
bill’s introduction, moratorium, recent
election results, interconnected fed-
eral issues, medical and ethical issues,
and the volatility of the political envi-
ronment, the future of the death pen-
alty in Washington is uncertain. NWL

Shelley
K. Simcox
is a retired
federal lawyer
who lives near
Silverdale. She
is a member of
the Editorial
Advisory Com-
mittee. Reach
her at shelleyron@wavecable.com.

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