State v. FramptonState v. Frampton
Lead Opinion
These cases are before the court pursuant to an order of October 10, 1980, calling for briefs and oral argument on certain issues relative to the death penalty. All of the cases involve an attempt by the State to impose the death penalty for the crime of aggravated murder in the first degree.
Nedley Norman, Jr., Howard Foren, Michael Robtoy, Floyd William Marr, and Morris Frampton are here on appeal from first degree murder convictions and sentences of death imposed after sentencing hearings held pursuant to
Douglas Justice is here on appeal from his conviction of first degree murder and the sentence of life imprisonment without possibility of parole or release imposed on him after his jury returned a negative answer to the "mitigating circumstances" sentencing question posed by
Scott Smith and Robert DeAngelis are here on interlocutory appeals by the State of trial court rulings that the death penalty could not be constitutionally imposed in light of State v. Martin,
Except for Robtoy, who declined to plead and had a plea of not guilty entered by the court, all defendants have at all times pleaded not guilty to these murder charges.
Defendant Smith contests our review of the order issued by the trial court. This matter was considered by the Supreme Court Commissioner and in an order dated September 23, 1980, the Commissioner ruled the order of the trial court to be appealable. On October 23, 1980, we denied Smith's motion to modify the Commissioner's ruling. His case is properly before us. Defendant Pauley is not a participant in this proceeding.
The five issues which the court accepted for argument are:
1. Whether the present statutory scheme for imposing the death penalty is unconstitutional in light of State v. Martin,
2. If so, may the State still seek and have imposed in cases of aggravated first degree murder, the punishment of life imprisonment without the possibility of parole;
3. Whether the special sentencing proceeding for imposing the death penalty unconstitutionally withdraws from the jury the question of the appropriate sentence;
4. Whether it is possible for a jury to make a prediction as to the future dangerousness of a defendant which is required by
5. Whether death by hanging is cruel and unusual punishment.
The issues will be dealt with in this sequence.
We are not considering (1) whether the death penalty is per se unconstitutional and violates the Eighth Amendment and Const, art. 1, § 14, or (2) whether "the sentence of
I
RCW 10.94.020(1) provides:
If notice of intention to request the death penalty has been served and filed by the prosecution in accordance withRCW 10.94.010 , then a special sentencing proceeding shall be held in the event the defendant is found guilty of murder in the first degree underRCW 9A.32 -.030(1) (a).
[If] the trial jury returns a verdict of murder in the first degree underRCW 9A.32.030(l)(a) , then, at such time as the verdict is returned, the trial judge shall reconvene the same trial jury to determine in a separate special sentencing proceeding whether there are one or more aggravating . . . and . . . mitigating circumstances . . . and to answer special questions . . .
In State v. Martin, supra at 8, the court found there was "no current statutory provision that authorizes the impaneling of a special jury to decide the death penalty issue when a capital defendant pleads guilty." We held that since there is no statutory means by which the death penalty can be imposed when a defendant pleads guilty, the maximum penalty which could be imposed on a plea of guilty to first degree murder is life imprisonment with a possibility of parole.
The State now argues, however, that within existing statutes, there is a method whereby the death penalty can be imposed when there is a guilty plea in a case of first degree murder. To reach this result, it urges that we construe
If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the courtshall, in their discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.
Under the analysis of the State, following a plea of guilty, a jury, as authorized by
Prior to the enactment of
In State v. Martin, we held a defendant could plead guilty under the current statutes. Given this ruling, the question posed by the State is: When a defendant pleads guilty to aggravated first degree murder is a jury to be impaneled under
If the legislature had meant
When a defendant is charged with the crime of murder in the first degree as defined inRCW 9A.32.030(l)(a) , the prosecuting attorney or the prosecuting attorney's desig-nee shall file a written notice of intention to request a proceeding to determine whether or not the death penalty should be imposed when the prosecution has reason to believe that one or more aggravating circumstances, as set forth inRCW 9A.32.045 as now or hereafter amended, was present and the prosecution intends to prove the presence of such circumstance or circumstances in a special sentencing proceeding underRCW 10.94.020.
The special sentencing proceeding provided by
In addition to the lack of reference to
Substitute House Bill 615 went to the Senate where it was referred to the Senate Judiciary Committee. The bill was amended in committee and reported out "Do Pass". Senate Journal, 45th Legislature, at 1517. On the floor of the Senate, the bill was substantially amended to its present form in
The significance of this rejection should not be overlooked in ascertaining legislative intent. Consideration of the legislative history of an enactment has long been held to be a legitimate method of determining the legislature's intent. Ropo, Inc. v. Seattle,67 Wn.2d 574 ,409 P.2d 148 (1965); State ex rel. Fair v. Hamilton,92 Wash. 347 ,159 P. 379 (1916). The majority in Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441,536 P.2d 157 (1975), acknowledged the value in appropriate circumstances of considering sequential drafts of a bill. Hama Hama Co. v. Shorelines Hearings Bd., supra at 450. Unlike the enactment considered in that case,RCW 10.94 is not "replete with inconsistencies, errors, and apparent oversights," and thus it is clear some insight can be gained from examining the death penalty statute's legislative history. It is presumed that members of the legislature were aware of the state of the law and of prior drafts of the bill at the timeRCW 10.94 was enacted. See State v. Fenter,89 Wn.2d 57 ,569 P.2d 67 (1977); Stateex rel. Fair v. Hamilton, supra at 352; 2A C. Sands, Sutherland's Statutes and Statutory Construction § 48.04, at 197 (4th ed. 1973). It therefore is presumed that the legislature did not intend to allow a special sentencing procedure for infliction of the death penalty on a first degree murder defendant who pleads guilty. There is no evidence which overcomes this presumption.
Martin, at 19. While it may be contended the legislature eliminated section 68 because it was aware of the existence of
Furthermore, as has been observed many times, death as a punishment is different. When a defendant's life is at stake, the courts have been particularly sensitive to insure that every safeguard is observed. Gregg v. Georgia,
The maximum penalty for a defendant who pleads guilty to first degree murder is life imprisonment without possibility of parole. A defendant who pleads not guilty and is subject to a jury trial may receive the death penalty. Where, pursuant to statutory procedure, the death penalty is imposed upon conviction following a plea of not guilty and a trial, but is not imposed when there is a plea of guilty, that statute is unconstitutional. United States v. Jackson,
The State next contends that as a matter of policy it should be allowed to require a jury in capital cases. This may be a salutary policy but a request for its implementation must be directed to the legislature, not this court. We agree with the views of the United States Supreme Court in United States v. Jackson, supra at pages 584-85:
It is true that a defendant has no constitutional right to insist that he be tried by a judge rather than a jury, Singer v. United States,380 U. S. 24 [13 L. Ed. 2d 630 ,85 S. Ct. 783 (1965)], and it is also true "that a criminal defendant has [no] absolute right to have his guilty plea accepted by the court." Lynch v. Overholser,369 U. S. 705 , 719 [8 L. Ed. 2d 211 ,82 S. Ct. 1063 (1962)]. But the fact that jury waivers and guilty pleas may occasionally be rejected hardly implies that all defendants may be required to submit to a full-dress jury trial as a matter of course. Quite apart from the cruel impact of such a requirement upon those defendants who would greatly prefer not to contest their guilt, it is clear — as even the Government recognizes — that the automatic rejection of all guilty pleas "would rob the criminal process of much of its flexibility." As one federal court has observed:
"The power of a court to accept a plea of guilty is traditional and fundamental. Its existence is necessary for the . . . practical . . . administration of the criminal law. Consequently, it should require an unambiguous expression on the part of the Congress to withhold this authority in specified cases." [United States v. Willis,75 F. Supp. 628 , 630 (D.C. 1948).]
Finally, the State asserts that since the Texas and Washington statutes are similar, we should adopt the reasoning of the Texas courts in construing our statute. We reject this argument. The major similarity between the
We reaffirm our holding in State v. Martin, supra, that a defendant who pleads guilty cannot be subjected to the enhanced penalties for first degree murder under
II
The constitutional principle of United States v. Jackson, supra, is that if the severity of the punishment is dependent upon the way guilt is determined — e.g., by a plea of guilty or by a jury trial — this imposes an impermissible burden on the exercise of constitutional rights. The question we must now consider is whether, although the death penalty may not be imposed, the State may still seek and have imposed in cases of aggravated first degree murder, the punishment of life imprisonment without the possibility of parole. We hold it may not.
Before turning to the constitutional argument, we note that in the event of a guilty plea the same hiatus exists in
There are also constitutional reasons for striking the sentence of life imprisonment without possibility of parole. Although United States v. Jackson, supra, involved the death penalty, its rationale is not confined to the death penalty. The State, however, relying upon Corbitt v. New Jersey,
In Corbitt, it was held that Jackson did not apply to the punishment scheme in New Jersey. Under the New Jersey homicide statutes, juries designated whether murder was in the first or second degree. The mandatory punishment for those convicted of first degree murder was life imprisonment; second degree murder carried a maximum sentence of 30 years. There was no death penalty. Trials to the court in murder cases were not permitted and guilty pleas were forbidden. However, pleas of non vult or nolo contendere were allowed. If accepted, the trial court had discretion to impose a life sentence or the second degree murder sentence without actually determining whether the murder was of the first or second degree. The Supreme Court stated the difference between Jackson and Corbitt:
We agree with the New Jersey Supreme Court that there are substantial differences between this case and Jackson, and that Jackson does not require a reversal of Corbitt's conviction. The principal difference is that the pressures to forgo trial and to plead to the charge in this case are not what they were in Jackson. First, the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia,428 U. S. 153 , 187 [49 L. Ed. 2d 859 ,96 S. Ct. 2909 ] (1976), is not involved here. Although we need not agree with the New Jersey court that the Jackson rationale is limited to those cases where a plea avoids any possibility of the death penalty's being imposed, it is a material fact that under the New Jersey law the maximum penalty for murder is life imprisonment, not death. Furthermore, in Jackson, any risk ofsuffering the maximum penalty could be avoided by pleading guilty. Here, although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial.
(Footnote omitted.) Corbitt v. New Jersey, supra at 217.
As is apparent from the New Jersey statute and its treatment by the Supreme Court, it was in effect a statute which encouraged plea bargaining. As was observed in Cor-bitt v. New Jersey, supra at pages 223-24:
Had Corbitt tendered a plea and had it been accepted and a term of years less than life imposed, this would simply have recognized the fact that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. The States and the Federal Government are free to abolish guilty pleas and plea bargaining; but absent such action, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. New Jersey has done no more than that.
We discern no element of retaliation or vindictiveness against Corbitt for going to trial. There is no suggestion that he was subjected to unwarranted charges. Nor does this record indicate that he was being punished for exercising a constitutional right. Indeed, insofar as this record reveals, Corbitt may have tendered a plea and it was refused. There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed. Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.
(Footnote omitted.)
In other jurisdictions where this issue has arisen and where the death penalty has not been involved, the courts have consistently found the legislation constitutionally defective. See People v. C.,
For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not he inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right.
Even so, the State contends, a life sentence without a possibility of parole or release is not sufficiently different from life imprisonment with the possibility of parole and given the fact that parole is a matter of favor or grace to which the legislature may attach such conditions as it sees fit, the penalty is the same. See In re George,
It is apparent, however, that the legislature did not think the two penalties to be the same. Life imprisonment without possibility of parole or release is reserved only for those first degree murderers who the jury also finds to have committed an "aggravated" murder. The sentence of life without possibility of parole cannot be suspended, deferred, or commuted by any judicial officer. The Board of Prison Terms and Paroles cannot grant parole, reduce the period of confinement or release a defendant for good behavior. Temporary release or furlough programs are forbidden.
The legislature believed and we find the penalty of life imprisonment without hope of parole or release to be substantially different than life with the possibility of parole. This difference violates the principle enunciated in United States v. Jackson,
We hold the State may not constitutionally seek life imprisonment without possibility of release or parole for those who are found guilty of aggravated first degree murder. The fact that
m
Defendants contend the sentencing procedures in
the subtle, and perhaps open, direct effect that answering special questions may have upon the jury's ultimate conclusion. There is no easier way to reach, and perhaps force, a verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by a majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of the questions.
Under
Defendants not only raise objection to these questions, they also state there must be a general verdict rendered by the jury as to the sentence. It should be noted that the cases cited by the defendants involve jury verdicts as to guilt or innocence and not the sentencing procedure. Whatever may be the requirement in these cases, in a capital case the sentencing procedures contained in the Washington statutes are acceptable to the United States Supreme Court. The Texas death penalty procedure, like that in Washington, requires the jury to answer special questions but has no general verdict for sentencing. The Texas statute was upheld in Jurek v. Texas,
In summary, the concerns expressed in Furman [Furman v. Georgia,408 U.S. 238 ,33 L. Ed. 2d 346 ,92 S. Ct. 2726 (1972)] that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
Gregg v. Georgia, supra at 195.
In Lockett v. Ohio,
[I]n all but the rarest kind of capital case, [the sentencer may] not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
(Footnotes omitted.) Pursuant to
So long as the statutes meet the requirements enunciated by the United States Supreme Court so that the death penalty is not imposed arbitrarily or capriciously and the sentencing authority is given adequate information and guidelines, a general verdict by the jury on sentencing is not required. We hold that under the statutory scheme for imposing the death penalty in this state a general verdict by the jury as to the sentence is not constitutionally
IV
Are you [the jury] convinced beyond a reasonable doubt that there is a probability that the defendant would commit additional criminal acts of violence that would constitute a continuing threat to society?
Defendants claim the question is so vague and the issue it presents so imponderable that it fails to provide a rational and fairly limited basis for the decision whether or not to impose the death penalty. We disagree and, contrary to the position of defendants, find that this question has been considered and answered by the United States Supreme Court in Jurek v. Texas, supra.
In Jurek, the Supreme Court reviewed a provision of the Texas death penalty statute which is identical to the question in
Focusing on the second statutory question that Texas requires a jury to answer in considering whether to impose a death sentence, the petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless timeseach day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.
(Footnotes omitted.) Jurek v. Texas,
Chief Justice Burger concurred in the judgment. Justice White, joined by the Chief Justice and Justice Rehnquist, concurred. The question before us was specifically reviewed by the concurring opinion of Justice White. Discussing the issue of vagueness, the concurrence stated:
Petitioner claims that the additional questions upon which the death sentence depends are so vague that in essence the jury possesses standardless sentencing power; but I agree with Justices Stewart, Powell, and Stevens that the issues posed in the sentencing proceeding have a commonsense core of meaning and that criminal juries should be capable of understanding them.
Jurek, at 278-79. In essence, the Supreme Court upheld the Texas language on predicting future events because (1) prediction of future behavior has a common core of meaning juries can understand and (2) prediction of future behavior depends on the jury having sufficient information and under the Texas statute the jury would have before it "all possible relevant information about the individual defendant whose fate it must determine." Jurek, at 276. The Washington statute is clearly sufficient to meet this standard.
Defendants next urge that the due process clause of the Washington Constitution, article 1, section 3, "No person shall be deprived of life, liberty, or property, without due process of law", may set a higher standard than the fourteenth amendment to the United States Constitution and should control. We have long held that federal cases construing the various due process clauses of the federal constitution should be given great weight but that they are not necessarily controlling in our construction of Const, art. 1, § 3. Young v. Konz,
We believe, however, that the prediction of future dangerousness while admittedly difficult is neither so vague nor imponderable as to be unconstitutional. Although the case concerned an attack on the commitment law for criminal insanity and the predictive language was "a substantial likelihood of repeating similar acts" rather than "a probability" certain criminal acts would be committed, we believe the analysis and holding by the court in Alter v. Morris,
[T]he State's interest in the safety of its citizens is strong enough to allow the legislature some leeway in formulating what Eire essentially predictive standards. The theory of mentsd commitment underlying both statutes is twofold: preventive detention, and treatment. Neither statute authorizes commitment and detention on the sole ground of a person's need for treatment; protection of citizens is the primary justification for the deprivation of Em individual's liberty under these statutes. Protection byprevention requires prediction; under our statutes, prediction is based in part on the fact of prior dangerous acts proved beyond a reasonable doubt. Full due process safeguards surround that proof. The fact that the prediction cannot be foolproof does not discredit the attempt. At this point in the development of our knowledge about human behavior, the dangerousness standard is not an unreasonable one.
Alter v. Morris, supra at 420-21.
We hold
V
Defendants contend that execution by hanging (
The State cites a number of cases upholding the constitutionality of hanging as a means of execution. These cases without exception are more than 50 years old, apply long discarded standards for determining cruel and unusual punishment (State v. Burris,
In Weems v. United States,
[t]he traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Prohibition against the wanton infliction of pain has come into our law from the Bill of Rights of 1688. The identical words appear in our Eighth Amendment. The Fourteenth would prohibit by its due process clause execution by a state in a cruel manner.
Louisiana ex rel. Francis v. Resweber,
Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people. . . .
. . . The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself.
(Italics ours.) Resweber, at 473-74.
More recently, the Supreme Court in Estelle v. Gamble,
It suffices to note that the primary concern of the drafters was to proscribe " torture [s]" and other " barbar [ous]" methods of punishment. [Granucci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Cal. L. Rev. 839 (1969)], at 842. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah,99 U. S. 130 , 136 [25 L. Ed. 345 ] (1879) ("[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment. . ."); In re Kemmler,136 U. S. 436 , 447 [34 L. Ed. 519 ,10 S. Ct. 930 , 933] (1890) ("Punishments are cruel when they involve torture or a lingering death . . .").
Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e.g., Gregg v. Georgia [428 U.S. 153 , 49L. Ed. 2d 859, 96 S. Ct. 2909 (1976)], supra, at 171 (joint opinion); Trop v. Dulles,356 U. S. 86 , 100-101 [2 L. Ed. 2d 630 ,78 S. Ct. 590 , 597-98] (1958); Weems v. United States,217 U. S. 349 , 373 [54 L. Ed. 793 ,30 S. Ct. 544 , 551] (1910). The Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . .," Jackson v. Bishop,404 F.2d 571 , 579 (CA8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, supra, at 101; see also Gregg v. Georgia, supra, at 172-173 (joint opinion); Weems v. United States, supra, at 378, or which "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 173 (joint opinion); see also Louisiana ex rel. Francis v. Resweber,329 U. S. 459 , 463 [91 L. Ed. 422 ,67 S. Ct. 374 , 376] (1947); Wilkerson v. Utah, supra, at 136.
(Footnote omitted.)
Although prior to 1900 hanging was the nearly universal form of execution, at the present time in the English speaking parts of the world, only four jurisdictions provide for execution by hanging: Washington, Delaware, Montana and South Africa. See Gardner, Executions and Indignities: An Eighth Amendment Assessment of the Methods of Inflicting Capital Punishment, 39 Ohio St. L.J. 96, 119 (1978); NAACP Legal Defense Fund, Death Row U.S.A. (June 30, 1980); Furman v. Georgia,
A substantial amount of information has been presented by defendants in their offers of proof, authorized by this court in its order of December 4, 1979. While there is some dispute between the experts of the State and defendants as
By contrast, the evidence presented by defendants is lengthy, detailed, and supported by persuasive scientific medical research. Our review of this evidence persuades us that in the great majority of cases death by hanging does involve slow, lingering death. Dr. Cornelius Rosse, chairman of the Department of Anatomy at the University of Washington School of Medicine, has reviewed the medical literature on the subject, and concludes that the common belief that death is instantaneous due to disruption of the spinal cord is incorrect in all but a very small fraction of cases. Where death is not instantaneous, its actual cause is probably strangulation or suffocation, a process that can take severed minutes.
Dr. Harry D. Patton, Professor and Chairman of the Department of Physiology and Biophysics at the University of Washington School of Medicine, agrees with his colleagues that there is a considerable question that judicial hanging severs the spinal cord, and adds that the nature of the characteristic fracture caused by a judicial hanging might actually provide some protection to the spinal cord by decompression. Studies of remarkably similar lesions encountered in automobile accident victims who suffered forcible high-velocity dorsiflexion of the head on the spinal column (so-called "hangman's fracture") have shown that all of the subjects survived, suggesting that such lesions do not sever the spinal cord and indeed seem to produce surprisingly little neural damage. Dr. Patton explains:
It seems logical to conclude that the true cause of death in judicial hanging is either strangulation due to tracheal occlusion or cerebral ischemia [compression of the arteries carrying blood to the brain] due to occlusion of the blood supply — or both.
Dr. Patton again emphasizes that even a clean severance of the spinal cord "does not per se cause loss of consciousness," and describes experiments where the isolated head of a cat is maintained in a conscious condition after the spinal cord has been severed. (He mentions parenthetically that such experiments are by common consent banned as inhumane in this country and that reputable scientific journals will not accept papers reporting such studies.)
The executioner put the noose over the man's head with a knot under the left ear. ... I gave the nod, OK, and he raised his hand and these men in the little room saw that and they cut the springs which sprung the trap. The man hit bottom and I observed that he was fighting by pulling on the straps, wheezing, whistling, trying to get air, and that blood was oozing through the black cap. I observed also that he urinated, defecated, and droppings fell to the floor, and the stench was terrible. I also saw witnesses pass out and have to be carried from the witness room. Some of them threw up. After a doctor had placed a stool in front of the man, he ripped his shirt open, put the stethoscope over his heart, and between eight and thirteen minutes later, the doctor pronounced the man dead by no heartbeat.
When the man was taken down and his black cap removed, Duffy testified he noticed that "big hunks of flesh were torn off" the side of his face where the noose had been, "his eyes were popped," his tongue was "swollen and hanging from his mouth" and he had turned purple.
Instances in which the victims of judicial hanging have not died instantaneously, but have suffered lingering and at times violent deaths are numerous in Washington history. Newspaper accounts of Washington executions during this century reveal that death in one case came as soon as 4 minutes, but in several cases death took 20 minutes or more. (As to the admissibility of these reports, see ER 803(16); ER 901(b)(8); Dallas County v. Commercial Union Assurance Co.,
Dr. Clarence Schrag, Professor of Sociology at the University of Washington and former Director of Corrections for the Washington State Department of Institutions, described a hanging at Walla Walla:
[T]he trap door was sprung. He fell through the trap door some feet, going out of my sight since I was standingon the platform. He disappeared from my view; but when he hit the end of the rope he bounced so that his head and shoulders came back up above the floor of the platform, which was a surprise to me. He bounced several times.
He then again, contrary to what was shown in the films, engaged in gyrations. Though his ankles and wrists were bound together, there was a great deal of motion, torso twisting, which motion continued, as I recall, for perhaps five minutes; and then began to decline in frequency and amount.
After ten minutes or so I saw no further motion.
Schrag waited for what might have been a total of 20 minutes, but when he felt for the victim's pulse, he was startled by the fact that the tendons were contracted severely, and there was an irregular but strong pulse.
Grim as these accounts may be, the results can be described only as horrifying when the hanging is not properly performed. The May 10, 1910 edition of the Seattle Times described an execution in which it took the victim over 22 minutes to die because of alleged bungling by the executioner. The unfortunate man strangled to death as he pleaded pitifully with the attendants to take him up and spring the drop again. So conscious was he throughout his agony that he was able to unbuckle the straps that bound his arms and drop the straps to the ground.
A perhaps more shocking and repulsive miscalculation occurred in the execution of Grant Rio in 1951. Albert Rembolt, a former employee at the State Penitentiary at Walla Walla, witnessed the execution. He recalls that, because the rope was left too long, Rio had his neck cut badly and was partially decapitated when the trap door was opened. Nineteen minutes later Rio was pronounced dead.
The evidence is overwhelming that in the executions performed in Washington in this century death has not been instantaneous. These horror stories are not unique. Other states which earlier used hanging had the same experience. See N. Teeters, Hang By The Neck 173-81 (1967); defendants' offer of proof, item 11. Furthermore, it is conceded by
The medical evidence demonstrates that judicial hanging, even when performed by a competent hanger, involves the infliction of unnecessary pain, lingering torture, and slow death. The State can therefore give no assurance that hangings performed in this state in the future will involve anything but lingering and painful deaths. Under the circumstances, we find it inescapable that execution by hanging is that kind of cruel, wanton and barbarous act which offends civilized standards of decency and cannot be held constitutional under the Eighth Amendment and Const, art. 1, § 14.
In summary then, we hold: (1) The present statutory scheme for imposing the death penalty is unconstitutional; (2) under these statutes, the State may not seek and have imposed in cases of aggravated first degree murder the punishment of life imprisonment without the possibility of parole; (3) the special sentencing proceeding for imposing the death penalty does not unconstitutionally withdraw from the jury the question of the appropriate sentence; (4)
Brachtenbach, C.J., concurs as to issues I, III, and IV.
Concurrence Opinion
(concurring specially) — I concur in the majority opinion by Justice Dolliver. Furthermore, as to the first issue, I agree with the reasons expressed in Justice Utter's opinion concurring in part, dissenting in part.
In addition, I feel compelled to register my concern over the views expressed in several of the concurring and dissenting opinions with regard to the issue whether death by
As Justice Dolliver's majority opinion makes plain, the United States Supreme Court has held in numerous cases that courts have the responsibility of evaluating punishments claimed to violate the Eighth Amendment. See, e.g., Coker v. Georgia,
Whatever rights one may lose at the prison gates, . . . the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes. Eighth amendment protections are not forfeited by one's prior acts. Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary. The ultimate duty of the federal court to order that conditions of state confinement be altered where necessary to eliminate cruel and unusual punishments is well established.
(Citations omitted. Italics mine.) Spain v. Procunier,
In a case involving a claim that the life sentence imposed under the habitual criminal statute,
[W]e must and do defer to the legislative decision to impose an enhanced penalty on recidivists. State v. Lee, 87 Wn.2d 932 ,558 P.2d 236 (1976). Yet, legislative authority is ultimately circumscribed by the constitutional mandate forbidding cruel punishment. Our duty to determine whether a legislatively imposed penalty is constitutionally excessive is not one which we assume eagerly, but we do not shrink from our responsibility.
State v. Fain,
The concurring and dissenting opinions of Justices Rosellini and Dore do not disagree that it is the duty of the courts to determine the constitutionality of a particular form of punishment. Rather, those opinions conclude that in circumstances where the evidence is subject to dispute, the legislature is the proper body to take testimony and weigh conflicting data. Rosellini, J., dissenting in part, at 512; Dore, J., dissenting and concurring, at 527-28.
It must be emphasized that the urgency and importance of these cases prompted this court to invite the parties, by order, to submit a factual record on the issue of death by hanging. I presume the order contemplated that the court would assess this evidence. Moreover, it is not a novel undertaking for this court to independently evaluate a factual record in deciding a case resting on a claim of cruel punishment under the Eight Amendment and Const, art. 1, § 14. A majority of this court did that very thing in State v. Smith,
It is thus plain to me that courts have historically been charged with the responsibility to enunciate "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles,
Dissenting Opinion
(dissenting in part) — I cannot agree with the majority's interpretation of the statutes which regulate imposition of the death penalty, nor with the conclusion that those statutes are unconstitutional.
Under
The problem is here because of this court's interpretation of the aggravated murder statute in State v. Martin,
Jackson held that an act of Congress which permitted a defendant to escape the death penalty by pleading guilty chilled the right of an accused to demand a jury trial and was therefore unconstitutional.
The Government would have us give the statute this strangely bifurcated meaning without the slightest indication that Congress contemplated any such scheme. Not a word in the legislative history so much as hints that a conviction on a plea of guilty or a conviction by a court sitting without a jury might be followed by a separate sentencing proceeding before a penalty jury. If the power to impanel such a jury had been recognized elsewhere in the federal system when Congress enacted the Federal Kidnaping Act, perhaps Congress' total silence on the subject could be viewed as a tacit incorporation of this sentencing practice into the new law. But the background against which Congress legislated was barren of any precedent for the sort of sentencing procedure we are told Congress impliedly authorized.
Jackson, at 578.
Our statutes provide for a jury trial to fix the degree of murder and the penalty.
The Supreme Court in Jackson approved the State of Washington's statutory scheme for the death penalty.
The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case — regardless of how the defendant's guilt has been determined.23
Jackson, at 582.
Murder in the first degree shall be punishable by imprisonment in the state penitentiary for life, unless thejury shall find that the punishment shall be death; and in every trial for murder in the first degree, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted; and if such special verdict is in the affirmative, the penalty shall be death, otherwise, it shall be as herein provided.
Laws of 1919, ch. 112, § 1, p. 274.
The United States Supreme Court had no difficulty in construing
The majority today decides to adhere to State v. Martin, supra, where it held that there is no statutory provision for the imposition of the death penalty, or a life sentence without possibility of parole, upon one who pleads guilty to a charge of first degree murder. Taking this stand, it reaches the inescapable conclusion that
The legislature, accepting the will of the people expressed in an initiative measure, has decreed that there shall be a crime of aggravated murder, and that the punishment shall be death. Mindful of the awesome finality of that punishment, the legislature has taken pains to provide a procedure designed to assure that only the most outrageous offenses, committed by the least redeemable persons, shall invoke the penalty. Nevertheless, the majority, while not finding that penalty itself unconstitutional, has construed the act to have an effect which I am certain was never intended, and so has rendered it invalid.
There are at least three statutes which attest to a legislative purpose to require a jury trial in all capital cases. By some judicial sleight of hand, this court has managed to emasculate all of them. Both the state and federal constitutions guarantee the right of trial by jury. One would expect the courts to be diligent to uphold statutes which implement that right. It is difficult to escape the surmise that it is more distaste for the penalty authorized than dissatisfaction with the laws, which leads the majority to follow a different course here. I would assume that most sensitive people sympathize with that distaste, even if all do not share it. Still, it is not an appropriate consideration to guide the court in its search for the meaning of a statute.
It is for the legislative branch of a state or the federal government to determine, within state or federal constitutional limits, the kind of conduct which shall constitute a crime and the nature and extent of punishment which may be imposed therefor. 1 C. Torcía, Wharton's Criminal Law § 10 (14th ed. 1978); 1 R. Anderson, Wharton's Criminal Law and Procedure § 16 (4th ed. 1957); McInturf v. Horton,
In Martin, and in the majority opinion here, we find scant attention paid to these controlling principles. The majority holding in Martin rested upon an arbitrary interpretation of CrR 4.2(a), a procedural rule.
The rule or rules which supplanted these statutes, like the statutes themselves, must be read in conjunction with other modifying statutes. These include
It is astonishing to find the majority here at the same time approving Martin (where a procedural rule had been held to modify the death penalty statutes) and declaring that the statutory scheme embodied in
How were these statutes treated in Martini First, the majority disposed of
No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: Provided however, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.
The opinion declares that the proviso has been interpreted as denying to an accused in a capital case the option of waiving a jury trial and submitting to a trial by the court. I submit that the interpretation has been much broader than that. The court cited State v. Baker,
There is no question but thatRCW 9.48.030 ,RCW 10.01.060 , andRCW 10.49.010 require trial by jury when a person is charged with murder in the first degree.
Baker, at 334.
Brandon v. Webb,
The majority in Martin refused to find in the act any intimation of a legislative intent that all capital cases should be tried to a jury. This is exactly opposite to the view which this court took in State v. Boggs,
If there is any ambiguity in
If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in their discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.
This section so clearly requires a jury trial in all first degree murder cases, to determine the degree of crime as well as the punishment, that the court's former holdings upon the subject would appear unassailable. Faced with this seemingly impregnable obstacle to the pursuit of its course of reasoning, the majority in Martin disposed of it by speaking of the statute in the past tense, as though everyone knew it had long since expired. The majority here assumes that the legislature has repealed it sub silentio.
Contrary to that supposition,
The statute has withstood constitutional attacks. State v. Baker, supra; State v. Music,
In In re Horner,
If these two statutes are read in conjunction with
The majority recites episodes from the legislative history of
In another exercise in ingenious reasoning, the majority, while making the proper assumption that the legislature was aware of the existence of other statutes affecting the trial of capital cases, concludes that it would have expressly adopted those statutes if it had intended them to apply. I
Now it may be suggested that
Do this court's rules disrupt that scheme? I submit that they do not.
We have generally adhered to the principle that proceedings which are created by statute are to be governed by that statute. State v. Womack, 82 Wn.2d 382,
I submit that this court's rules are in no wise inconsistent with a statutory requirement that there be a jury in all capital cases.
CrR 4.2 lays down a general rule that a criminal defendant may plead not guilty, not guilty by reason of insanity, or guilty. This is a delineation of the range of permissible pleas. It does not purport to limit the legislature's power to mandate a jury trial for certain crimes, where it deems such trial to be in the interest of the public and the defendant.
CrR 6.1(a), if read literally, would appear to authorize jury waiver in all cases, regardless of legislative expressions upon the subject. If so, it cannot be reconciled with CrR 6.1(b)(1). But if the background of that rule is examined, it will be seen that it was intended to protect the constitutional right to a jury trial in all criminal cases (save those involving petty offenses), and not to confer an affirmative right to avoid such trials, regardless of legislative provision.
The Task Force which recommended adoption of this rule made this comment:
This section has no direct source in present Washington law. It establishes the general right to a jury trial. Such right exists and continues to exist unless the defendant waives it in writing. The rule is written so as to guard against the silent waiver of a jury trial by failing to demand a jury as [in] civil cases. This section reflectsthe Task Force's feeling that Criminal cases should be tried by a jury as a general rule, and that in order to avoid that procedure, the defendant must make an overt action to waive the jury, or lessen its size.
Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure, Comment to rule § 6.1(a), at 116 (1971).
This comment again reveals the Task Force's understanding of that which should be obvious to all — that the rule is meant to be one of general application and not to control where specific laws provide otherwise.
Since this court's procedural rules have the effect of law, being expressly authorized by the legislature, they should be construed as other laws are construed. The object should be to harmonize them with relevant statutes, so that legislative purposes may be achieved, rather than to use them as implements for nullifying otherwise valid substantive laws.
The general rule is that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. Furthermore, the subsequent enactment of a statute which treats a phase of the same general subject in a more minute way consequently repeals pro tanto the provisions of the general statute with which it conflicts. Airway Heights v. Schroeder, supra. Accord, State v. Walls,
Under both of these phases of the rule,
Thus, the rules of this court, when reasonably construed, offer no obstacle to the achievement of the legislative intent. That intent — to require a jury trial in all capital cases — implements the defendant's constitutional right to a jury trial and is in harmony with and facilitated by other statutes which are in pari materia. If effect is given to their manifest intent, the statutes are constitutional. If that
I agree with the majority in its conclusion that the submitting of questions to the jury in the sentencing procedure, pursuant to
I also agree with the majority's disposition of the contention regarding the predictability of future conduct. The sufficiency of the evidence to support the jury's findings can be examined by the court wherever the question arises in individual cases. It would be inappropriate to make a conclusive and abstract judgment upon the matter at this time.
Upon the question whether hanging is a constitutional means of execution, I do not find before the court sufficient undisputed evidence to warrant a conclusion that this procedure is excessively cruel. Any means of inflicting death embodies cruelty. But there is medical evidence in the record that hanging almost invariably produces immediate death or at least loss of consciousness. There are exceptions, but this appears to be the case, whatever the means chosen. It is for the legislature, as the prescriber of the punishment for crime, to determine what method shall be used, in the absence of a definitive showing that unnecessary cruelty is involved. There is no such showing here.
Dore, J., concurs with Rosellini, J.
Notes
See, e. g.,
Having announced that the court has created a right to plead guilty in all criminal cases, through the office of its procedural rules, the majority in State v. Martin,
In State v. Davis,
In the case at bar, it was necessary that a trial be had, notwithstanding appellant's plea of guilty, in order that the degree of murder might be determined by a jury. Appellant had made a confession, and had pleaded guilty, but the state was bound by neither, nor limited in the method of proving its case.
(Citations omitted.)
That interpretation of the statute has never been rejected by the legislature nor disturbed by this court. Thus, it matters not whether the prosecutor can hamper a plea of guilty with his "opinions or desires." What is significant is that he has a statutory right to present to a jury his evidence concerning the degree of the crime and the punishment to be imposed.
"There are but three pleas to the indictment or information. A plea of—
"(1) Guilty;
"(3) A former judgment of conviction or acquittal of the offense charged, which may be pleaded with or without the plea of not guilty.”
“The plea may be entered on the record substantially in the following form:
" (1) A plea of guilty: The defendant pleads that he is guilty of the offense charged in the indictment (or information as the case may be);
”(2) A plea of not guilty: The defendant pleads that he is not guilty of the offense charged in the indictment (or information as the case may be);
"(3) A plea of former conviction or acquittal: The defendant pleads that he has formerly been convicted (or acquitted as the case may be) of the offense charged in the indictment (or information as the case may be), by the judgment of the court of (naming it), rendered on the_day of_A.D. 19_ (naming the time).”
See also
"The plea of guilty can only be put in by the defendant himself in open court.”
Concurrence Opinion
(concurring in part, dissenting in part) — I am compelled to agree with the majority that the death
As to the second issue, I agree with Justice Dimmick. The differences between life imprisonment with or without possibility of parole Eire not sufficiently great to be an impermissible encouragement of a defendant to plead guilty. Thus, this situation falls within the framework of Corbitt v. New Jersey,
Regarding the third and fourth issues, I agree with Justice Dolliver's majority opinion.
As to the fifth issue, I must dissent. Although I personally find the thought of death by hanging to be abhorrent, and would prefer the employment of a more speedy and more reliable method, I cannot for that subjective reason alone hold it unconstitutional. A law should not be declared unconstitutional just because one does not like it. It is only when a statute contravenes a constitutional provision or principle that it must be invalidated.
Without question there are methods of imposing death that would clearly contravene the Eighth Amendment and Const, art. 1, § 14. We are not within such a clearly defined area, however. Rather, we are in a gray zone the bounds of which cannot be adequately defined by resort to the mere subjective standard that the method "offends civilized standards of decency" or offends "evolving standards of decency". While subjective standards may suffice to meet a clear-cut case, one must resort to a more objective approach to resolve the emotional issue before us. Absent some objective criteria there will be as many answers as there are people with differing moral and intellectual philosophies. Such a nebulous approach, with the possibility of uncertain results, is intolerable no matter which moral or philosophical view one may advocate. The majority has not employed the necessary objectivity.
Bkachtenbach, C.J., concurs with Stafford, J.
Hicks and Dimmick, JJ., concur with Stafford, J., as to issue V.
Concurrence Opinion
(concurring in part, dissenting in part) — I agree with the majority except as to issue IV. On that issue
I
To be consistent with due process, a penal statute must contain ascertainable standards, so that people of reasonable understanding, when acting as jurors, will not be required to guess at the meaning of the enactment. Seattle v. Drew,
What did the Legislature mean when it provided that a man's life or death shall rest upon whether there exists a"probability" that he will perform certain acts in the future? Did it mean, as the words read, is there a probability, some probability, any probability? We may say there is a twenty percent probability that it will rain tomorrow, or a ten or five percent probability. Though this be a small probability, yet it is some probability, a probability, and no one would say it is no probability or not a probability. It has been written: "It is probable that many things will happen contrary to probability," and "A thousand probabilities do not make one fact." The statute does not require a particular degree of probability but only directs that some probability need be found. The absence of a specification as to what degree of probability is required is itself a vagueness inherent in the term as used in this issue. Our common sense understanding of the term leaves the statute too vague to pass constitutional muster.
(Footnotes omitted.) Furthermore,
The concept of the existence of a "probability" "beyond a reasonable doubt" is and can be only puzzling — even mind-boggling — to a jury or to anybody. In strict mathematical terms, and in dealing with a subject strictly amenable to mathematical treatment, it is of course possible to assert that there "is a probability" not only "beyond a reasonable doubt" but to a certainty. But non-mathematicians neither use language nor think in such a way. The terms "probability" and "beyond a reasonable doubt" are repugnant and at war with one another in the common speech in which juries, like all of us, talk and think.
Black, Due Process of Death: Jurek v. Texas and Companion Cases, 26 Cath. U.L. Rev. 1, 4 (1976).
Additionally, the evidence indicates the unreliability of predicting future dangerousness. The research in this field shows that the ability to predict future violence is unproven. Scofield, supra at 32-41. The evidence in this case shows that no one can predict future violent behavior with more than 35 percent accuracy. Most experts agree there is a "very strong doubt" about the predictability of whether a person is more likely than not to commit an act of violence. A state parole board expert testified that pre-
To conclude that
Alter does not control the outcome of this case. In Alter, the controlling language was "a substantial likelihood of repeating similar acts." That is significantly less vague than "a probability beyond a reasonable doubt" — for it conveys a quantitative notion absent in the latter. Also, the court in Alter noted that the nature of mental commitments requires "some leeway in formulating what are essentially predictive standards." Alter, at 421. Leeway is permissible there because mental commitment may also further the best interest of the committed. Alter v. Morris, supra;
Lastly, neither Jurek nor Alter considers our state due process guaranty. That provision has a vitality independent of its federal counterpart, and can be more protective when the evidence and reasoning suggest that such is necessary. See Olympic Forest Prods., Inc. v. Chaussee Corp.,
II
The dissent on its face appears convincing, but, in addition to the reasons already given by the majority, the dissent overlooks two important points. First, death constitutes such a severe penalty that the usual rules of statutory construction cannot be given their usual application. Cf. Woodson v. North Carolina,
The dissent also ignores Washington Const, art. 2, § 37, which prevents
Although
By arguing that
Brachtenbach, C.J. — I concur with Utter, J.'s, reasoning appearing under issue IJ herein in support of opinion by Dolliver, J., on issue I. I do not concur with Utter, J., on issue IV.
Dore, J. (concurring in part, dissenting in part)—
I
As a preliminary matter, I find nothing ambiguous about
The sentencing procedure has no impact on the defendant's plea. If defendant is found guilty of murder by a jury, the sentencing procedure is activated and the trial judge "shall reconvene the same trial jury".
If, on the arraignment of any person . . . the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.
Thereafter, that jury follows the special sentencing procedure as set forth in
Statutes in pari materia are to be harmonized, where possible. 73 Am. Jur. 2d Statutes § 187, at 386-87 (1974). Clearly,
I turn now to the business of statutory construction. The primary role of the court which construes a statute is to determine the intent of the legislature, and to give effect to that intent. Burlington N., Inc. v. Johnston,
Who could argue but that the legislature intended to provide for capital punishment for those who perpetrate the most heinous crimes? The majority apparently feels that the legislature intended to extend the death penalty only to those who were foolish enough not to plead guilty to aggravated murder.
When the legislative history of the statute is investigated, it becomes clear that the majority's holding is grounded on a fiction.
1. House Bill 615 (HB 615)
The present death penalty scheme originated as House Bill 615, 45th Legislature (1977) (HB 615). It was introduced by title only. The House Journal, 45th Legislature (1977) (House Journal), at 209 introduces "An Act Relating to crimes and criminal procedures" and lists those sections of Revised Code of Washington which are to be amended by the new act. There is absolutely nothing in the House Journal which indicates any of the substantive provisions of HB 615. Not a single legislator ever voted for or against HB 615.
2. Substitute House Bill 615 (SHB 615)
The judiciary committee substituted another bill for HB 615, designated in the House Journal at page 969 as Substitute House Bill 615 (SHB 615). The House Judiciary Committee recommended that Substitute House Bill 615 "Do Pass".
Subsequently, discussions, points of inquiry, and changes were made to SHB 615. Those amendments were engrossed onto SHB 615 and the engrossed bill passed in the House and was sent to the Senate.
4. Senate Amendments to Engrossed Substitute House Bill 615
The Senate referred the engrossed bill to the judiciary committee. Certain amendments were considered by the Senate, as reflected in the Senate Journal, 45th Legislature (1977) (Senate Journal). The most dramatic change made, however, was the motion to "Strike everything after the enacting clause [of Engrossed SHB 615] and insert the following". At this juncture, a comprehensive Senate amendment comprising the Senate's death penalty scheme was attached onto the House's engrossed bill (No. 615); Senate Journal, at 1984. The House bill was dead. The Senate "amendments" passed in that chamber, and subsequently in the House. It was ESHB 615 as completely amended by the Senate amendments which was enacted into law and is now known as
The majority grounds its determination of legislative intent on the omission of one section of HB 615 from SHB 615. To this end, the majority adopts the concurring opinion of Justice Horowitz in State v. Martin,
[T]he legislative history of the present death penalty statute shows that the legislature expressly rejected, a proposed provision that would have authorized the impaneling of a capital sentencing jury in cases in which the defendant pleads guilty. House Bill No. 615, the original version of the statute, provided that: "If the trial jury has been waived, or if the defendant pleaded guilty to murder in the first degree, the death penalty proceeding shall be conducted before a jury impaneled for that purpose and such jury cannot be waived." House Bill No. 615, § 68. In enacting the bill, the legislature eliminated this provision.
First, if prior drafts of an act have any meaning whatsoever, they must be prior drafts of the law which was finally enacted. As has been shown, only the Senate death penalty scheme, attached to the House bill number, was before the legislature. I see no arguments by defendants or the majority here that prior drafts of the enacted law support their position that a defendant who pleads guilty is to be exempted from the statutory scheme.
Second, no substantive provisions of HB 615 appear in the House or Senate Journals. For the text of both HB 615 and SHB 615, reference must be made to the State of Washington Printed Bills of the Legislature, Forty-fifth Session, House, 601-715, 1977, Regular and Extraordinary Sessions (Printed Bills). It is obvious that the Printed Bills were relied on both by Justice Horowitz in Martin, supra, and the majority in the subject case, although neither opinion mentions them. Going behind the journals is not reliable for determination of legislative intent, Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441,
Even if the Printed Bills are proper sources of legislative intent, the majority's position is unsupported. We may draw a number of inferences from the exclusion of section 68. They are: (1) the exclusion was inadvertent, (2) in substantially paring HB 615 from its 116 sections down to the 10 sections substituted as SHB 615, the judiciary committee felt that section 68 was superfluous in the light of
against over-emphasis and over-reliance upon the fact or happenstance of successive drafts as an absolute determinant, rule, or tool for interpreting a statute.
Hama Hama Co. v. Shorelines Hearings Bd., supra at 449.
The challengers of this statute have failed to meet the burden imposed upon them by law. A statute is presumed to be constitutional. In re Harbert,
The House and Senate Journals reflect that this death penalty bill was thoroughly debated, numerous amendments were offered — some were accepted and some were rejected; numerous questions were asked and points of order were raised and disposed of. Is it not strange that no mention was made of the type of punishment to be administered in the event a defendant pleaded guilty of an aggravated murder as opposed to not guilty? A permissible inference from such absence of such inquiry is that the legislators were well aware of
Finally, the statute itself indicates that the legislature intended to make no distinction between those defendants who plead guilty and those who plead not guilty. Legislative intent is to be gleaned, first, if possible, from the statute itself. In re Estate of Lyons,
In the event that the governor commutes a death sentence or in the event that the death penalty is held to be unconstitutional by the United States supreme court or the supreme court of the state of Washington the penalty underRCW 9A.32.046 shall be imprisonment in the state penitentiary for life without possibility of release orparole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer, and the board of prison terms and paroles shall never parole a prisoner nor reduce the period of confinement. The convicted person shall not be released as a result of any type of good time calculation nor shall the department of social and health services permit the convicted person to participate in any temporary release or furlough program.
Life without possibility of parole, then, is the resulting sentence if a death sentence is commuted by the Governor or if the statutory scheme enacting the death penalty is held invalid by the courts. If defendant A pleads guilty to first degree murder and defendant B pleads not guilty to first degree murder, they must be treated equally before the law. If defendant B could be sentenced to life without possibility of parole, but defendant A could only face the lighter sentence of life with possibility of parole, the equal protection clause of the constitution would be violated. The legislature is presumed to act constitutionally thereby creating the presumption that an act is constitutional. In re Har-bert, supra. In that
Also to be noted is the effect of
Justice Utter's concurring and dissenting opinion states that
No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.
I disagree with Justice Utter's conclusion.
IV
I concur in the majority's disposition of issues III and IV. As to issue III, however, I feel that a fifth question should be put to the jury: Shall the defendant be sentenced to death? to be answered simply with a "yes" or a "no”. This final determination of imposition of the death penalty should not be taken from the province of the jury.
V
I concur in Justice Rosellini's dissent as to issue V, whether death by hanging violates the eighth amendment to the United States Constitution. Additionally, I note that the legislature is better equipped to determine the mode of execution to be imposed. I take judicial notice of the fact that this very subject is currently before the Washington State Legislature. Unlike the legislature, this court can neither hear live testimony nor conduct hearings on this issue.
Conclusion
The majority has found a clear, well reasoned and orderly statute to be ambiguous, and has fabricated legislative intent from impermissible inferences. Simply stated, this court has substituted its intent for that of our legislature. From the usurpation of the legislative power, I dissent.
I would uphold the constitutionality of the 1977 amen-datory act providing for capital punishment and overrule State v. Martin,
Rosellini, J., concurs with Dore, J.
Concurrence Opinion
(concurring in part, dissenting in part) — I concur with the reasoning and result reached in the dissents of Justices Rosellini and Dore as to issue I, and would likewise overrule State v. Martin,
The majority holds that "the State may not constitutionally seek life imprisonment without possibility of release or parole for those who are found guilty of aggravated first degree murder." I disagree with that holding.
Is the present statutory scheme unconstitutional? I do not believe it is. The dispositive United States Supreme Court cases, United States v. Jackson,
This court has clearly recognized that parole is granted strictly by grace through the Board of Prison Terms and Paroles. The discretion to grant or withhold this grace is virtually unfettered and unreviewable. See State v. Fain, 94 Wn.2d 387, 394-95,
I concur with the majority on issues III and IV.
Hicks, J., concurs with Dimmick, J.
Brachtenbach, C.J., concurs with Dimmick, J., as to issue II.
In my dissent I have upheld the death penalty statute in its entirety, which would provide for the penalty of life imprisonment without possibility of parole. In order to avoid any misunderstanding, I am also signing Justice Dimmick's opinion.
Reconsideration denied May 20, 1981.
The following former inmates, who were all sentenced to life for first degree murder, had their sentences commuted during the term of office of Governor Ray upon recommendation of the superintendent of the Washington State Penitentiary: (1) Michael Finnegan, sentenced 11/6/70, commuted 1/12/81; (2) Edmond Gray, sentenced 4/22/60 to three consecutive life sentences, commuted 1/12/81; (3) Kelly D. Messinger, sentenced 12/20/71, commuted 1/8/81; (4) Harry L. Van DeVenter, sentenced 2/28/69, commuted 1/8/81; (5) John E. Henault, sentenced