State v. Cross

¶147 (dissenting) — The majority abandons any rational attempt to fulfill our statutory responsibility to conduct a proportionality review, effectively rendering the statutory duty meaningless. Properly recognizing and analyzing what has happened in the administration of capital cases in this state inevitably leads to the conclusion that the sentence of death in this case, and generally, is disproportionate to the sentences imposed in similar cases. Contrary to what we had expected to find when we established an analytical framework to conduct our statutory review, that the worst of the worst offenders would be subject to the death penalty, what has happened is the worst offenders escape death. When Gary Ridgway, the worst mass murderer in this state’s history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not “stand alone,” as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty.

C. Johnson, J.

¶148 Our task in conducting a proportionality review as provided under RCW 10.95.130(2)(b) requires us to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” “Similar cases” is defined within the statute as all “cases reported in *642 Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120.” RCW 10.95.130(2)(b). RCW 10.95.120 requires the trial court to file a report “[i]n all cases in which a person is convicted of aggravated first degree murder.” Thus, the pool of cases we review includes all aggravated murder convictions. One commonality exists in these cases: they are all the worst existing crimes. Proportionality review is intended to provide a basis to explain how a sentence of death rationally compares to the other cases in the pool. Reviewing the history of this court’s proportionality review reveals how the administration of capital cases defies any rational analysis.

¶149 Since the enactment of the statute in 1981, our proportionality jurisprudence has embodied many analytical forms. We first characterized the objective of proportionality review on appeal as “to assure that ‘wholly arbitrary, capricious, or freakish sentences’ are minimized.” State v. Campbell, 103 Wn.2d 1 , 30 n.2, 691 P.2d 929 (1984) (quoting Pulley v. Harris, 465 U.S. 37, 45 , 104 S. Ct. 871 , 79 L. Ed. 2d 29 (1984)). However, even with this goal in mind, we did not articulate the method by which we were to minimize the imposition of arbitrary or freakish sentences through this proportionality review. In conducting our proportionality review in Campbell , we found no other case where four aggravating factors were present. Thus, rather than comparing Campbell’s case with “similar cases” as required under the statute, we concluded that these circumstances “would, with great frequency prompt a jury to impose the death penalty.” Campbell, 103 Wn.2d at 30 .

¶150 Shortly after Campbell , in State v. Jeffries, 105 Wn.2d 398 , 717 P.2d 722 (1986), we concluded that proportionality review under RCW 10.95.130(2)(b) does not include cases where the prosecutor did not seek the death penalty. We compared Jeffries’ sentence of death with the *643 sentences imposed in four other cases: State v. Rupe, 17 State v. Bartholomew, 18 State v. Hawkins, 19 and State v. Quinlivan, 20 Without significant explanation, we concluded that “[tjhese four cases strongly establish that the death penalty here is not disproportionate.” Jeffries, 105 Wn.2d at 430 .

¶151 In State v. Harris, 106 Wn.2d 784, 798 , 725 P.2d 975 (1986), we noted that the proportionality statute provides “little guidance to determine at what point a death sentence becomes proportionate or disproportionate.” However, we turned to Georgia’s interpretation of its own proportionality statute, which is identical to Washington’s statute, as a useful guideline. The test for proportionality in Georgia is to determine whether death sentences have been imposed “generally’ in similar cases.

“[TJhis court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not ‘wantonly and freakishly imposed,’. . . .”

Harris, 106 Wn.2d at 798 (quoting Moore v. State, 233 Ga. 861, 864 , 213 S.E.2d 829 (1975)). We adopted this standard and have generally employed it in our subsequent proportionality reviews.

¶152 In 1987, contrary to what we said in Jeffries , we included in the pool of comparable cases all cases in which the defendant was convicted of first degree aggravated murder. In State v. Rupe, 108 Wn.2d 734 , 743 P.2d 210 *644 (1987) (Rupe II) we stated, “ ‘similar cases’ include cases where the defendant was convicted of first degree aggravated murder regardless of whether the death penalty was sought” and imposed. 108 Wn.2d at 767 . Rupe II represented a significant step in our proportionality review. In that case, we singled out a number of cases that presented at least two of the three aggravating factors present in the case before us. After comparing Rupe’s case with eight other cases, 21 we concluded that “we do not find any characteristics about Rupe’s crime, nor a lack of characteristics found in similar crimes, which suggest that the death penalty is excessive or disproportionate in Rupe’s case.” Rupe II, 108 Wn.2d at 769-70 .

1153 In State v. Lord, 117 Wn.2d 829, 907-14 , 822 P.2d 177 (1991), we reviewed the history, impetus, and purpose of the proportionality statute. Acknowledging again that there is no clear test or guidance given to the court in the text of the statute, we concluded that our proportionality statute serves to prevent caprice in deciding whether to impose the death penalty, and, while not constitutionally required, it “provides a safeguard against arbitrarily imposed death sentences.” Lord, 117 Wn.2d at 908 . In this process, however, we did not require precise uniformity. “Our review is not intended to ensure that there can be no variation on a case-by-case basis, nor to guarantee that the death penalty is always imposed in superficially similar circumstances.” Lord, 117 Wn.2d at 910 . We characterized our comparison of similar cases as a search for “family resemblances.” Lord, 117 Wn.2d at 911 .

¶154 In State v. Benn, 120 Wn.2d 631, 678-93 , 845 P.2d 289 (1993), we conducted the most extensive search for first degree aggravated murder cases. After a survey of 31 cases from the trial court reports, we selected a pool of compa- *645 rabie cases in the same “genus or family” as Benn’s 22 and concluded that this group of similar cases did not contain an arbitrary frequency of life without parole sentences over the death sentence.

¶155 In State v. Brett, 126 Wn.2d 136, 212 , 892 P.2d 29 (1995), conviction vacated and remanded sub nom. In re Pers. Restraint of Brett, 142 Wn.2d 868 , 16 P.3d 601 (2001), we characterized proportionality review as providing “a ‘check’ or ‘additional assurance’ against arbitrary imposition of the death penalty.” We noted our struggle in the past in conducting proportionality review and attributed this difficulty to attempting to define “similar cases” without adopting standards requiring mathematical identity. Additionally, we acknowledged that we had struggled to define what makes a case proportional. We stated that proportionality review continues to broaden in approach, and we focused on two systemic problems in death sentences: random arbitrariness and sentences based on the defendant’s race.

¶156 In State v. Pirtle, 127 Wn.2d 628, 687 , 904 P.2d 245 (1995), rev’d in part and remanded in part sub nom. Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002), we abandoned Lord’s “family resemblance” test, stating the approach “grew somewhat unwieldy as more and more cases were reported” and “the result was dependent on the cases selected” for comparison. In proportionality review, “we assume [cases] can be arrayed on a rough continuum from least serious to most serious, considering the nature of the crime and any mitigating factors.” Pirtle, 127 Wn.2d at 686 . When determining whether Pirtle’s death sentence was excessive or disproportionate to the penalty imposed in similar cases, we articulated the proper review as follows:

In reviewing an individual case, we look for dispropor-tionality. We are not concerned with whether a given crime can be matched with one or more of the fifteen other death *646 penalties. Instead, our job is to weed out those cases in which the crime and the defendant’s mitigation most closely match the less serious of the 129 cases which did not result in a death penalty.

Pirtle, 127 Wn.2d at 686 (emphasis added). In considering the defendant and the crime, we employed four factors in our examination: (1) the nature of the crime, (2) the aggravating factors, (3) the defendant’s criminal history, and (4) the defendant’s personal history.

¶157 In State v. Elmore, 139 Wn.2d 250, 308 , 985 P.2d 289 (1999) (quoting State v. Brown, 132 Wn.2d 529, 555 , 940 P.2d 546 (1997)), we reaffirmed that our objective in proportionality review is to determine whether “death was imposed ‘generally in similar cases, and not imposed wantonly and freakishly.’ ” Unlike our review in Pirtle, however, we stated that “[i]f the facts of Elmore’s case are similar to some of the facts taken from cases in which the death penalty was upheld, the proportionality review is satisfied.” Elmore, 139 Wn.2d at 308 . We then employed the four factors set out in Pirtle to analyze the defendant and the crime in relation to similar cases, comparing Elmore’s case to only those cases in which the death penalty was imposed. Six of the cases we relied on for proportionality review had previously been vacated on appellate review. However, we stated that our reliance on these cases was appropriate because none of them was overturned based on proportionality.

¶158 In State v. Elledge, 144 Wn.2d 62, 79-80 , 26 P.3d 271 (2001), we again rejected the argument that we should include only cases in which the death penalty was ultimately affirmed in our review of “similar cases,” relying on Elmore . In Elledge , the defendant was convicted of first degree aggravated murder for strangling and stabbing a woman after binding her wrists and ankles, and the jury imposed the death penalty. In comparing the nature of the crime with other “similar cases,” we stated that “Elledge’s crime was at least as vicious and brutal as others in which the death penalty was imposed,” relying on Rupe, Benn, *647 and Harris. Elledge, 144 Wn.2d at 81 . Although there was only one aggravating factor present, we did not find Elledge’s case disproportionate on this basis, citing to State v. Gentry, 23 Harris, and Benn , in which the death penalty was upheld where one aggravating factor was found. Elledge had an extensive criminal record, including one first degree murder conviction, which we found to be “among the most extensive of any within the pool of similar cases.” Elledge, 144 Wn.2d at 83 . No mitigating factors were presented.

¶159 Despite the different analytical forms we have employed in our proportionality review since the enactment of RCW 10.95.130(2)(b) in 1981, the ultimate objective of our search for “similar cases” has consistently been to achieve our statutory mandate to determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” In accomplishing this task, we must put a particular case in context; our review is to assure us that the sentence of death is somehow quantifiable or comparable in view of all the other cases where the sentence of death was imposed or where an individual, was convicted of first degree aggravated murder. In executing this comparative review, as stated in Pirtle, we expect to find that our pool of comparable cases can “be arrayed on a rough continuum from least serious to most serious, considering the nature of the crime and any mitigating factors.” 127 Wn.2d at 686 .

¶160 Since chapter 10.95 RCW was enacted, four people convicted of aggravated murder in the first degree have been sentenced to death and executed. Three of the individuals executed chose not to pursue the avenues of appeal available to them. In addition, one individual who had been sentenced to death committed suicide while incarcerated. Several individuals are currently sitting on death row awaiting the exhaustion of their appeals. There are ap *648 proximately 268 trial court reports on file with this court for individuals convicted of first degree aggravated murder.

f 161 As stated above, from our discussion in Pirtle, we assume the individuals sitting on death row constitute the far end of the spectrum, representing the most serious offenders who committed the most atrocious crimes in our state. However, a review of the current pool of cases reveals serious problems with the administration of our state’s capital cases. Contrary to what we expected to find in the “spectrum” of serious cases, we now see that the most serious offenders either pleaded guilty and escaped the death penalty or were not sentenced to death by a jury.

¶162 Gary Ridgway is the most prolific serial killer in our state’s history. In 2003, he pleaded guilty to 48 counts of first degree aggravated murder. He killed mainly prostitutes and runaways, often strangling them, dumping their bodies to return later to rape their corpses. Ridgway’s plea was part of an agreement forged with prosecutors in which he agreed to help locate the remains of the women he killed in order to escape the death penalty. He was sentenced to life without the possibility of parole. 24

¶163 If the Ridgway case was the only case at the far end of the spectrum, perhaps his penalty of life in prison rather than death could be explained or dismissed. Ridgway, however, is not the only case in which a mass murderer escaped death. Benjamin Ng killed 13 people, resulting in 13 convictions of first degree aggravated murder. The aggravating factors found in his case were: the murders were part of a common scheme or plan, there was more than one victim, and the murders were committed in the course of a robbery. Ng hog-tied his victims prior to shooting them execution style. Mitigating factors presented to merit leniency were diminished capacity, Ng’s youth, and lack of a prior criminal record. The jury could not unanimously agree *649 to impose the death penalty, and Ng was sentenced to life in prison without the possibility of parole.

¶164 In addition to Ridgway and Ng, who were not initially sentenced to death, over the course of time an overwhelming number of the cases we have relied on as “similar cases” where death was imposed for the purposes of proportionality review have been vacated on appeal. The death penalty has not been imposed on remand in any of these cases, even though a number of them constitute the most atrocious crimes by the most serious offenders. Since the enactment of the existing death penalty statute in 1981, juries have imposed the penalty of death in 31 cases where an individual was convicted of first degree aggravated murder. However, in 19 of those 31 cases the conviction or sentence has been vacated by either the Washington State Supreme Court or by federal courts. In at least 13 cases, the individual was resentenced to life without the possibility of parole on remand. 25 Several cases are still pending in superior courts. One of the 19 individuals was released, 26 and one committed suicide. 27 Even though our previous cases have relied on cases where the death penalty was not reimposed, the fact remains that these cases are, or should be, placed at the far end of the most extreme crimes for purposes of our comparison. These cases no longer involve the death penalty.

f 165 Among those retried and sentenced to life without parole are two individuals convicted of killing three or more persons. Kwan Fai Mak, Ng’s codefendant, committed 13 murders and was sentenced to death in the sentencing phase of his first trial. However, Mak was sentenced to life without the possibility of parole after his sentence was vacated and a new sentencing proceeding was held. David L. Rice was convicted of four counts of first degree aggra *650 vated murder. His conviction and sentence of death were overturned by the Ninth Circuit Court of Appeals, Rice v. Wood, 44 F.3d 1396 (9th Cir. 1995). Rice subsequently pleaded guilty and was sentenced to life without the possibility of parole. Again, the State elected not to seek the death penalty on remand.

f 166 Robert Yates pleaded guilty to 13 counts of premeditated first degree murder, not aggravated murder, in Spokane County pursuant to an agreement with prosecutors. Yates pleaded guilty in order to escape the death penalty. Like Ridgway, Yates was a serial killer who preyed on prostitutes. He hired prostitutes for sex, then shot them in the head and stole their money. In addition to his convictions in Spokane County, Yates was later convicted of two counts of first degree aggravated murder in Pierce County where the prosecutor sought and the jury imposed the death penalty. Thus, the only trial court report on file by which we can conduct our proportionality review under the statute is for the two aggravated murder convictions in Pierce County. Though aggravating factors were apparently present, the prosecutor in Spokane County allowed Yates to plead guilty to 13 counts of premeditated first degree murder, rather than first degree aggravated murder, therefore the Spokane County case is not included under the statute. It is well established that prosecutors exercise their discretion in determining whether to pursue the death penalty in any aggravated murder case, and for plea bargaining or other reasons they may not seek capital punishment. The exercise of this discretion however has inhibited our ability to conduct a meaningful proportionality review. No cases exemplify this problem more than those of Ridgway and Yates.

¶167 We have continually grounded our proportionality review on the principles set forth in Furman v. Georgia, 408 U.S. 238 , 92 S. Ct. 2726 , 33 L. Ed. 2d 346 (1972), construing it as an additional safeguard to ensure that the death penalty is not imposed arbitrarily or capriciously. In Harris, we stated that “[t]he impetus for proportionality review *651 derives from the Supreme Court decision in Furman . . . .” 106 Wn.2d at 797 . Additionally, in Lord we declared that our concern in conducting proportionality review is “with alleviating the types of major systemic problems identified in Furman : random arbitrariness and imposition of the death sentence based on race.” Lord, 117 Wn.2d at 910 . Thus, Furman presents the bedrock principles underlying our statutory review. To ensure that the sentence of death is not arbitrarily or capriciously imposed as required under Furman , we perform our proportionality review to determine whether “the death penalty has been imposed generally and not ‘wantonly and freakishly imposed.’ ” Harris, 106 Wn.2d at 798 (quoting Moore, 233 Ga. at 864 ).

1168 As the above discussion of our proportionality jurisprudence indicates, our appellate review as required by RCW 10.95.130(2)(b) has not only evolved but has continued to limit the focus of comparison to other death penalty cases. This approach ignores the statutory mandate to include all cases in which the defendant was convicted of first degree aggravated murder as “similar cases” for comparison. When we factor in all the cases required by statute and review the outcome of our previous cases, no rational basis exists to explain or conclude that the sentence of death in any given case is imposed generally in similar cases. Not only have we not generally included all cases where the defendant has been convicted of first degree aggravated murder in our review, the majority of the death penalty cases we have declared to be “similar” for comparison in proportionality review are no longer death penalty cases. In previous cases our analysis has focused on “similar” cases where the death penalty was imposed; when those “similar” cases are no longer death penalty cases, our prior comparability analysis is undermined. This outcome renders it impossible to find that the death penalty is imposed generally in similar cases and leads to the conclusion that our historical approach to proportionality review is no longer viable.

¶169 With Ridgway, Mak, Ng, Yates, Rice, and others in our pool of similar cases, our proportionality review reveals *652 the staggering flaw in the system of administration of the death penalty in Washington. As stated earlier, the dual objectives of our proportionality review are to proscribe random arbitrariness in the imposition of the death penalty and to ensure that the sentence of death is not imposed because of a defendant’s race. We accomplish this object through conducting a proportionality review to guarantee that “no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not ‘wantonly and freakishly.’ ” Harris, 106 Wn.2d at 798 (quoting Moore, 233 Ga. at 864 ). Comparing Ridgway, Mak, Ng, and Rice with the imposition of the death penalty in Dayva Cross’s case, and including all other cases required by that statute as similar cases, the penalty of death is not imposed generally in similar cases.

¶170 These cases exemplify the arbitrariness with which the penalty of death is exacted. They are symptoms of a system where statutory comparability defies rational explanation. The death penalty is like lightning, randomly striking some defendants and not others. Where the death penalty is not imposed on Gary Ridgway, Benjamin Ng, and Kwan Fai Mak, who represent the worst mass murders in Washington’s history, on what basis do we determine on whom it is imposed? No rational explanation exists to explain why some individuals escape the penalty of death and others do not.

Madsen, Sanders, and Owens, JJ., concur with C. Johnson, J.

Reconsideration denied June 6, 2006.

101 Wn.2d 664 , 683 P.2d 571 (1984) (death penalty imposed where defendant killed two people during a robbery with two aggravating factors present) (Rupe I).

101 Wn.2d 631 , 683 P.2d 1079 (1984) (death penalty imposed where defendant killed one victim with two aggravating factors present).

70 Wn.2d 697 , 425 P.2d 390 (1967) (death penalty imposed where defendant was convicted of murdering two children).

81 Wn.2d 124 , 499 P.2d 1268 (1972) (death penalty imposed where defendant killed two people).

In four cases the defendant received the death penalty, in two eases where the death sentence was sought the defendant received life without parole, in one case the prosecution did not seek the death penalty, and in one case a defendant was sentenced to life without parole after pleading guilty.

Of the 31 cases the court surveyed, it rejected from the pool those cases in which the death penalty was not sought because the cases were not in the same “genus or family,” and the court rejected cases exhibiting extremely brutal crimes. Benn, 120 Wn.2d at 692 .

125 Wn.2d 570 , 888 P.2d 1105 (1995). In Gentry, the defendant was sentenced to death for the murder of a 12 year old girl. One aggravating factor found was murder to conceal the identity of the defendant.

The majority praises the prosecutors in the Ridgway case as “highly respected, honorable, and thoughtful” and calls the plea agreement “highly rational.” Majority at 622. In fact, this is little more than misplaced condescension. There is nothing rational about the prosecutors’ decision here not to seek the most serious of penalties for one who has committed the most heinous of crimes.

Dwayne Bartholomew, Gary Benn, James Brett, Michael M. Furman, Patrick Jeffries, Brian Lord, Sammie L. Luvene, Kwan Fai Mak, Henry L. Marshall III, Blake Pirtle, David L. Rice, Michael K. Roberts, Mitchell Rupe.

Benjamin Harris.

Charles B. Finch.