On December 23, 2024, President Biden commuted 37 federal death row sentences, leaving just three people facing the death sentence under federal law. Reaction by some was vehement. A Trump spokesperson calling it “abhorrent.”
Biden did the right thing, and I hope you will consider the reasons why I hold this belief. I come at this decision as not only a former career prosecutor but also one of the few prosecutors who has gone to trial prosecuting death penalty cases and made the decisions as to whether or not the death penalty should be considered in numerous other cases.
What follows is my position on the death penalty as I explained it in Roadways to Justice: Reforming the Criminal Justice System. As you will see from the text of the following chapter, Roadways was written before Biden took office.
Roadways to Justice: Reforming the Criminal Justice System
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No one else in the King County Prosecutor’s Office since 1971 has taken two death penalty cases to trial. This is not a distinction I sought; I was assigned to prosecute the cases. I mention this not to brag, but rather to note that I have experience with death penalty cases. I know all about Washington’s history of hangings and then the option of hanging or lethal injection. I’ve argued the issue of whether the death penalty constitutes cruel and usual punishment.
Further, later in my career when I served as Chief Deputy of the office’s Criminal Division, I reviewed and reported on every potential death penalty case for the duly elected prosecutor. My report laid out the facts of the case, the evidence, and both the aggravating and mitigating circumstances. Those reports never contained a recommendation that we pursue the death penalty on a case. That decision rested with the elected prosecutor, Norman K. Maleng. Norm alone made the decision on whether we should seek the death penalty, saying he was the one who must take that responsibility as the people’s elected representative.
While I have prosecuted two and reviewed many more potential death penalty cases, I have never been a proponent of the death penalty for reasons that I will cover here. This is something that I have in the past only disclosed to family and close friends in whom I could confide.
If I had a distaste for the death penalty, why did I prosecute death penalty cases? As a deputy prosecuting attorney, I saw my role as a public official whose job it was to follow the law. My role was much like a juror in a death penalty case. One distinguishing feature of a death penalty case is death-qualifying the jury. In the seminal U.S. Supreme Court case on juror qualification for a death penalty case, Witherspoon v. Illinois, the prosecutor had successfully challenged for cause jurors who expressed general reservations about imposing the death penalty. The Supreme Court reversed, holding that the Sixth Amendment requirement of an impartial jury was violated when prospective jurors were excused merely because they “voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”
Witherspoon evolved and was modified by a later Supreme Court decision, Wainwright v. Witt. Ultimately, for the prosecutor to meet the requirements for a challenge for cause, the prosecution must show that the “juror’s views would prevent or substantially impair the performance of his or her general duties as a juror in accordance with his instructions and his oath.” I could have been seated on a death penalty jury panel, and I would have been able to abide by the court’s instructions. Therefore, if, like a juror, I did not harbor a religious or moral belief that would keep me from enforcing the law, I should do my job.
Although I did not favor the death penalty, at the time I did not advocate for its abolition. However, I certainly understood why others would do so. In the Flowers case (one of the cases I prosecuted), the medical examiner described the excruciating way in which Joseph Gunther died. Having been immolated by fire involves having your lungs contract. The medical examiner described it as looking very much like the way the skin on a burnt turkey looks. Seeing such an infliction of pain, suffering, and murder upon a loved one, you understand the feelings and desire that a survivor of a murder victim would have for the ultimate punishment—life for a life. This rationale in support of the death penalty is that the defendant should get his “just deserts.” An eye for an eye.
Another argument that has been advanced in favor of the death penalty is that it is a deterrent. Certainly, it is a specific deterrent—the execution of the murderer will stop him from future acts of violence. However, is it a general deterrent? Research studies have found that the death penalty has about the same effect as long-term imprisonment on homicide rates. Indeed, a consensus among America’s top criminologists is that scholarly research has demonstrated that the death penalty does, and can do, little to reduce rates of criminal violence.
On the other side, compelling arguments can be made against the death penalty. First, an innocent person may be executed. In his book, Just Mercy: A Story of Justice and Redemption, Bryan Stevenson, renowned attorney and founder of the Equal Justice Initiative, wrote this about his client Anthony Ray Hinton, who had been on Alabama’s death row:
After we presented test results that confirmed his innocence in 2000, I begged prosecutors to retest the evidence, but for fifteen years they refused. The state continued trying to execute Mr. Hinton until we won a ruling in the United States Supreme Court in 2015 that required prosecutors to finally reexamine the evidence. The evidence confirmed his innocence and Mr. Hinton became the 152nd person in America exonerated and proved innocent after having been wrongly convicted and sentenced to death.
When over 152 people have been proven to have been innocent after being sentenced to death, the evidence is irrefutable that mistakes can be made. Why risk killing an innocent person?
Second, the costs of a death penalty case can be astronomical. The Howard Flowers’ trial was estimated to have cost $1 million in 1978, which is an equivalent of $3 million today. Over the years, the costs of a death penalty case have increased. A 2007 death penalty case, State v. Michele Anderson, in King County cost nearly $5 million for the defense alone. The jury in that case was unable to reach a unanimous decision in favor of the death penalty, and, as a result, the defendant was sentenced to life in prison without parole.
Third, the death penalty, for some inexplicable reason, awards the offender not only attention but also, in some instances, celebrity status. Ted Bundy was given national notoriety, and, as was mentioned before, he was the subject of a book, The Stranger Beside Me, by Ann Rule. Gary Gilmore is another case in point. Gilmore got international attention when he demanded a death sentence for himself for the two murders he had committed in Utah. Norman Mailer wrote a nonfiction novel, The Executioner’s Song, about Gilmore, which was later made into a movie starring Tommy Lee Jones. By contrast, defendants who have been sentenced to life in prison without the possibility of parole rarely gain any notoriety.
Fourth, the death penalty has not been consistently applied. Since 1849, a total of 110 executions have taken place in Washington when it was a territory and later a state. From the beginning, executions were by hanging, and the first two men hung were Native Americans. In 1914, the death penalty was abolished in Washington, but then the death penalty was reinstated in 1919 and remained unchanged until 1972. Then, in 1972, in Furman v. Georgia, the U.S. Supreme Court ruled that the death penalty constituted cruel and unusual punishment given the procedures then in use in Georgia, Washington, and other states.
Three years after the Furman decision, the people of the state of Washington by a 69 percent margin reenacted the death penalty law by a citizen’s initiative, with detailed procedures for imposing the death penalty. It was that new death penalty law that governed the Flowers case. In a historical context, I prosecuted the last death penalty case—Lydell Baker—before Furman invalidated Washington’s death penalty law and the first case—Howard Flowers—after Washington reinstated the death penalty in 1975.
Consider, for example, the James Ruzicka case. Ruzicka murdered two teenage girls in the course of raping them but was not charged with a capital crime. Under Washington’s capital crimes statute, two aggravating circumstances existed in the Ruzicka case: (1) there was more than one victim, and the murders were part of a common scheme or plan, and (2) the murder was committed in the course of, in the furtherance of, or in immediate flight from rape in the first or second degree. Ruzicka was not charged with a capital crime because, at the time, the death penalty law was not in effect.
In 2014, Governor Jay Inslee announced a moratorium on capital punishment in the state of Washington. On October 11, 2018, the Washington Supreme Court in State v. Gregory held the death penalty unconstitutional on the ground that it violated Article I, Section 14 of the state constitution because it was administered in an arbitrary and racially biased manner. The evidentiary basis for the holding was a statistical report showing that Black defendants in Washington were 4.5 times more likely to be sentenced to death than similarly situated White defendants. Twenty-two states and the District of Columbia and Puerto Rico have abolished the death penalty.
Likewise, on the federal level, the death penalty has not been consistently applied. The year 2020 was one of the deadliest in history for federal capital punishment since 1927. In 2020 alone, while Donald Trump was president, thirteen federal executions took place. This record of executions is in sharp contrast to the three executions over the prior fifty years. Looking ahead, President Joe Biden has said that he will work on “legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example. These individuals should instead serve life sentences without probation or parole.”
Between 1975 and 2014 when the death penalty statute was still operative in Washington, the law was not applied equally to all defendants who could have received capital punishment. During the time that I was in the King County Prosecutor’s Office, our policy was to not plea bargain with the death penalty under any circumstances. In other words, if the case merited a death sentence under the law, we were not to plea bargain it down. The rationale was that the threat of the death penalty was irrefutably coercive and that the defendants’ cases should be handled fairly under the law.
Then came the “Green River Killer” case, and the policy of not bargaining with the death penalty was abandoned. Gary Leon Ridgway, also known as the “Green River Killer,” was initially charged with forty-eight murders. The September–October 2002 issue of The Prosecutor magazine, a publication of the National District Attorneys Association, described the Ridgeway case and the position of Prosecutor Norm Maleng and the King County Sheriff on the death penalty as follows:
Maleng announced he would seek the death penalty in the case of Gary Leon Ridgeway, 53, a married man who worked in a Seattle truck-manufacturing plant. Police believe that the Green River Killer brutally murdered and mutilated at least 49 women since August 15, 1982, when the first victim was found. Some investigators think he killed as many as 90, which, if true, would make him the number one serial killer in U.S. history. The arrest of Ridgeway brought special satisfaction to David Reichert, who, as a Seattle detective, discovered the first victim in 1982 and continued the investigation even when he later became county sheriff. DA Maleng has indicated that he is not interested in any plea bargain. Sheriff Reichert is, as Time magazine put it, “torn between wanting to know the whole story and wanting to inflict the ultimate punishment.” The Sheriff told Time magazine: “I would love to have the opportunity to visit with him and learn the what, where, why, when, who and how in each case.... But if anyone deserves to get the death penalty, it would be the person responsible for this series of murders.”
Nevertheless, the King County prosecutor bargained with the death penalty, exchanging it for Ridgway’s guilty pleas to forty-nine murders, making him the second most prolific serial killer in U.S. history according to confirmed murders. Ridgeway is rivaled only by the other Washington serial murderer—Ted Bundy.
King County Prosecutor Norm Maleng explained his decision to plea bargain away the death penalty in the Ridgeway case:
We could have gone forward with seven counts, but that is all we could have ever hoped to solve. At the end of that trial, whatever the outcome, there would have been lingering doubts about the rest of these crimes. This agreement was the avenue to the truth. And in the end, the search for the truth is still why we have a criminal justice system.... Gary Ridgway does not deserve our mercy. He does not deserve to live. The mercy provided by today’s resolution is directed not at Ridgway, but toward the families who have suffered so much.
On December 18, 2003, King County Superior Court Judge Richard Jones sentenced Ridgway to forty-eight life sentences with no possibility of parole and one additional life sentence to be served consecutively. He was also sentenced to an additional ten years for tampering with evidence for each of the forty-eight victims, adding 480 years to his forty-eight life sentences. If the state did not seek the death penalty in the Ridgeway case, how could it in any other?
Washington State’s law on the death penalty issue has swung back and forth like a pendulum. Abolished in 1914. Reinstated in 1919. Held to be cruel and unusual punishment in 1972. Reinstated in 1975. A moratorium in 2014. In 2018, the Washington Supreme Court held the death penalty to be unconstitutional in State v. Gregory.
Will the Washington Supreme Court’s decision in the Gregory case finally stop the pendulum from swinging in Washington State? A time may come when a heinous murder case causes an uproar, and the Washington Supreme Court is differently constituted—one more inclined to hold that the death penalty is constitutional. Or, a new death penalty law could be passed, and the Washington Supreme Court could rule differently because the State v. Gregory decision did not rule out the possibility that a state legislature could enact a constitutional death penalty statute in the future. The Gregory decision explicitly states, “We leave open the possibility that the legislature may enact a ‘carefully drafted statute,’ ... to impose capital punishment in this state, but it cannot create a system that offends constitutional rights.” Notably, the death penalty is still in effect in over twenty-five states, the federal government, and the military.
In January 2019, Daniel Satterberg, whom I hired and who later became the Chief of Staff under Norm Maleng and succeeded Norm as the elected King County prosecutor, called for the abolition of Washington’s death penalty statute. Satterberg argued that instead of the death penalty, the law should make the punishment for aggravated murder life in prison without the possibility of parole. I couldn’t agree more.
