A Life for a Life: a Hard Look at Washington State's Death Penalty

By Emily M. Gause

(As published in Washington Criminal Defense Magazine, November 2015)

“An eye for an eye will only make the whole world blind.”
— Mahatma Gandhi

In the span of two months, two King County juries returned two verdicts refusing to impose the death penalty.  Those two cases, State v. Christopher Monfort and State v. Joseph McEnroe, cost King County over $12.2 million dollars.  And, in the end, neither one received the death penalty as punishment for his crime.

Christopher Monfort was convicted of murdering a police officer.[i]  On Halloween night 2009, Monfort opened fire on a police car, killing Officer Timothy Brenton and wounding his partner, Brit Sweeney.

Joseph McEnroe was convicted for his role in a brutal family massacre, killing his girlfriend Michele Anderson’s family on Christmas Eve 2007 in Carnation.  Known as the “Carnation Killer,” Joseph McEnroe shot his girlfriend’s parents, their son and his wife, and their young two children.[ii] 

In the short period of just two months, King County prosecutors tried, but failed to convince a jury to kill these two murderers.  It is clear that Seattle jurors are unwilling to impose the outdated “eye for an eye” mentality by executing a human being as punishment for murder.   Because of these two verdicts, King County Prosecutors declined to seek the death penalty against Michele Anderson , the alleged co-defendant and co-conspirator of Joseph McEnroe. 

Such sentiment disfavoring imposition of the death penalty extends to other states as well.  On August 7, 2015 a Colorado jury returned a life verdict in the death penalty trial for James Holmes, the man convicted of the Aurora movie theater massacre that killed 12 and wounded 70 more.[iii]  In May 2015, Nebraska Senators voted to repeal the death penalty.  In August 2015, the Connecticut Supreme Court (4-3) held that the state's death penalty was in violation of the state's constitution and converted all pending death sentences to life sentences, reasoning:

"[T]his state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose."[iv]

In Washington, there have been 339 aggravated murder cases filed since 1981 when the death penalty was reinstated.  Out of that number, the state prosecutors sought death in 83 cases.  Out of those 83, juries only returned a verdict for death in 33 cases in the last 34 years.  And in those 34 years, Washington State has executed five people.

So, is the death penalty in Washington officially “dead”?   

This article explores:

·       The current state of death penalty policy in Washington State;

·       The problems with the death penalty:  the exorbitant costs, high number of reversals, and role of race in capital cases;

·       The Christopher Monfort case in more detail, including insight from the courageous public defenders that spent years fighting to have their client’s life spared;

·       What we can expect in 2016 – is the death penalty on its way out? 

The current state of death penalty policy in Washington State

Washington State’s death penalty law is codified in RCW 10.95.  It allows prosecutors authority to present the death penalty as one sentencing option to the jury in a first degree murder case.  A jury must find “there are not sufficient mitigating circumstances to merit leniency” in order to impose death.  RCW 10.95.030(2). 

In early 2014, Washington State’s governor, Jay Inslee, issued a moratorium on death sentences citing “problems that exist in our capital punishment system.”[v]  Data shows that out of 33 death sentences imposed since the punishment laws were enacted in 1981, over half were overturned (18 reversals out of 24 death sentences that have completed the appeal process).[vi]

The move makes Washington the latest in a series of states to step away from capital punishment and makes Mr. Inslee the third Democratic governor in recent years to say something similar. Gov. John Kitzhaber of Oregon announced in 2011 that he would not permit any executions on his watch, and last year Gov. John W. Hickenlooper of Colorado issued an indefinite reprieve in the only death penalty case during his tenure.[vii]

Despite the progress forward toward abolishing death penalty, a 2014 Gallup poll showed that 6 in 10 Americans favor the death penalty for convicted murderers.[viii]  That poll showed that 49% of democrats are in favor of death penalty, whereas 76% of republicans are in favor.[ix]  Many Americans, however, are not fully informed on the many problems with capital punishment:  the exorbitant costs, arbitrary application, number of exonerations or reversals, and racially-biased imposition of this practice.  

The Problems with Capital Punishment

Death is Expensive

In 2006, the Washington State Bar Association explored the costs of death penalty in Washington and found that these cases each cost an average of $517,000 more than cases where the penalty sought is life without the possibility of parole.[x]  

Most recently, Seattle University published a report in January 2015 that the average cost of a death penalty case in Washington is $3.07 million, compared to $2.01 million for cases in which the prosecutor does not seek the death penalty.[xi]

That study broke down the phases of a death penalty case and the costs associated with each phase.  

Defense and prosecution costs skyrocket when litigating a death penalty case.  It costs Washington State an average of $600,000 more to defend a death penalty case than it would to defend a murder case seeking a punishment of life without the possibility of parole.[xii]   Prosecuting an average death penalty case in Washington increases costs by over $221,000.[xiii]

SU Law’s study examined 147 aggravated murder cases since 1997 and limited its analysis to economic cost estimation alone.

In King County, defending Christopher Monfort has cost $5.8 million dollars so far.[xiv]   Prosecuting him cost approximately $1 million as of April 30, 2015.[xv]   Enforcing the death penalty isn’t cheap.  Joseph McEnroe cost the county $4.4 million, and while the death penalty was still an option for Michele Anderson, defense costs skyrocketed to over $4 million in her case alone.[xvi] The combined cost of prosecuting both McEnroe and Anderson was roughly $1.06 million through November 2014, according to the prosecutor’s office.[xvii]

Why the high costs?   What is it about a death penalty case that requires so much more preparation, diligence, and time?  Our Supreme Court has repeatedly emphasized the need for defense counsel to be death penalty qualified, and provided a spectrum of guidance about what is necessary to be “effective” in a death penalty case.  Two defense attorneys must be appointed for the trial and also for the direct appeal.[xviii]  Mitigation packages must be prepared, often in conjunction with an extensive psychological or neuropsychological evaluation. Investigators or mitigation specialists must dive deeper into an accused’s background, interviewing high school classmates, extended family members, and turning over every stone in search of any mitigating circumstances that could provide a basis for leniency.  

Not only is the investigation more lengthy and thorough, taking years to complete, a death penalty trial also takes much longer.   Death penalty cases require a death qualified jury, that is a jury who is fair and impartial when it comes to one of the most hotly debated policies in our nation.  So, jury selection takes weeks or even months to complete.  Trials take longer – there is both a guilt phase and a separate penalty phase.

An average of over $1 million dollars per case could be saved if prosecutors chose not to seek the death penalty.  Couldn’t the time and resources that public defense agencies and prosecutor offices put into a death penalty case be spent in so many more meaningful ways?  Aren’t government office resources already strung so thin?   As policy makers get together next legislative session for yet another conversation about death penalty, Seattle University’s 2015 study about costs will surely be put to good use.

Our Criminal Justice System Isn’t Always Right – Reversals and Exonerations

There have been 339 aggravated murder cases filed since 1981 when the death penalty was reinstated in Washington.  Out of that number, the King County Prosecutor sought death in 83 cases.  Out of those 83, juries only returned a verdict for death in 33 cases in the last 34 years.  And in those 34 years, Washington State has only executed five people.

Mark Larranaga, one of our state’s lead death penalty defense lawyers, has said “It’s a complete waste of time and resources.  We’ve had five executions in forty years.  That means 75-80 percent of death penalty cases have been reversed.”[xix]  

The Innocence Project has done incredible work at educating people nationwide about the number of innocent people that are convicted, based on junk science or flawed eyewitness identifications, and working to reverse those convictions.   As of June 2015, there were a reported 155 exonerations in 26 different states for people awaiting a death sentence.[xx]

Last year, two men were released from prison in Ohio after their exonerations from death row.[xxi]  The men were convicted of a 1975 murder based on the testimony of a 12-year-old boy.  Prosecutors filed a motion to dismiss charges against the men after the witness recently recanted, admitting he had not seen the murder at all.  Both men spent 39 years in prison – the longest time between conviction and exoneration of anyone released from death row nationwide.  

Mistakes happen.  Witnesses lie.  People make mistakes.  What would have happened if the witness recanted after these two men were executed?   Can we allow innocent people to be killed when we are aware of such inconsistencies and flaws within our criminal justice system?  

Our Death Penalty Policy is Imposed in a Racially Biased Manner

One of the nine men currently on death row in Walla Walla is Allen Gregory.  His appeal is currently before our state Supreme Court, written by defense champions Neil Fox and Lila Silverstein.  They commissioned a UW sociology professor to examine “The Role of Race in Washington State Capital Sentencing” between 1981 and 2014 to assist in their advocacy for Mr. Gregory.[xxii]   This is the first statistical study to examine race in capital sentences in Washington.   Using regression analysis, the study found that African American defendants in Washington are 4.5 times more likely than white defendants to be sentenced to death, after controlling for relevant case characteristics.[xxiii]  The statistical analysis also found that most of the variation in sentences cannot be explained – further proving that our death penalty truly is just as random and arbitrary as when it was abolished by Furman v. Georgia in 1972.  As articulated in briefing for Mr. Gregory, “social factors like race are not supposed to matter in the determination of who is sentenced to death.”[xxiv]  Using the study, Fox and Silverstein argue that the Washington Supreme Court should hold Washington State’s death penalty is unconstitutional in violation of the Eighth Amendment, and Article I, section 14 of the Washington Constitution.  

Gregory will be scheduled for argument sometime in winter 2016.

Down with Death – A closer look at Christopher Monfort’s case

Mr. Monfort had never been in prison before the day he shot and killed Seattle Police Officer Timothy Brenton.  He never denied committing the charged act.  Instead, his defense attorneys presented voluminous evidence that Mr. Monfort was legally insane at the time he shot the officer.   And despite the clear evidence that Mr. Monfort was not quite right in the head, Dan Satterberg still marched forward seeking justice through the death penalty.

I sat down with Carl Luer, one of the defense attorneys who spent five years defending Christopher Monfort, and asked him about what he thinks Mr. Monfort’s life verdict means for the future of Washington’s death penalty laws.  This is what he had to say:

“Time for death penalty in the United States has long since passed; we should join the other industrialized democracies in the world and abolish this practice.

It’s a little bewildering to me that we continue to cling to it.  In Washington State we have a somewhat Schizophrenic relationship with the death penalty.  A significant number of people want to keep it, but we also want to make sure defendants get full process and protections under the law at all costs. 

The death penalty is a tremendous waste of resources.”

Monfort’s case could have been resolved with a plea of guilty as charged with a sentence of life without the possibility of parole as early as July of 2010.  Instead, the King County Prosecutor spent over $6.8 million dollars and five additional years to pursue the death penalty, only to have a jury return a unanimous verdict for life in prison.   What a waste.

What’s Next?

The last Washington State jury to sentence a person to death occurred in 2013 in Snohomish County.[xxv]   Two years later, two King County juries could not impose death.  Has enough changed in two years to shift public opinion about this outdated punishment policy?  

Clarence Moriwaki, ACLU Washington’s Alternatives to the Death Penalty campaign manager shared the following insight about what we might see in 2016:

The growing state-wide trend for alternatives to the death penalty shows encouraging signs that are also being felt in Olympia. Bipartisan support for abolishing the death penalty has been increasing with each passing session, with successful hearings in the Washington State House of Representatives and Senate on bipartisan-sponsored bills which have earned positive media attention and editorial support.

The recent failure of juries in King County to impose the death penalty on two highly publicized, emotionally charged murder cases (one jury spent less than an hour to return a sentence of life without the possibility of release) –as well as the more than $12 million spent on these cases – is adding an exclamation point. When given the choice, the public is turning away from the wasteful use of tax dollars to pursue a broken government program – one that does not deter murders, does not make us any safer, is neither swift nor just, holds a real risk of executing the innocent, makes celebrities out of murderers, and adds excruciating pain to victims’ families with every courtroom deliberation.

Will Washington following in Nebraska’s footsteps by repealing the death penalty in the 2016 Legislative Session?  As criminal defense attorneys, we can only hope.   

Given what we know about the enormous cost to taxpayers, the number of death sentences that are eventually overturned, and the arbitrary and racially-biased imposition of capital punishment, is our death penalty statute still constitutional?   We will find out in 2016.

[i] Sara Jean Green, “Monfort Sentenced to Life in Prison for Killing Seattle Police Officer,” Seattle Times,  July 23, 2015
[ii]   Jennifer Sullivan and Steve Miletich, “Split Jury Spares Carnation Killer McEnroe from Death,” Seattle Times, May 13, 2015
[iii]  Stave Almasy, Ann O’Neill, Sara Weisfeldt, and Ana Cabrera, “James Holmes Sentenced to Life in Prison for Colorado movie theater murders,” CNN, August 8, 2015
[iv] State v. Santiago, 2015 BL 260876, Conn, SC 17413, published August 25, 2015
[v]   Ian Lovett, “Executions are Suspended by Governor in Washington,” The New York Times, February 11, 2014
[vi]  Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman & Mark Larranaga, “An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State,”  Seattle University, January 1, 2015, at page 69. 
[vii] Ian Lovett, “Executions are Suspended by Governor in Washington,” The New York Times, February 11, 2014; Death Penalty Information Center, “Gov. John Kitzhaber of Oregon Declares a Moratoium on All Executions, November 12, 2011
[viii]  Jeffrey M. Jones, “Americans’ Support for Death Penalty Stable, Gallup, October 23, 2014
[ix] Id.  
[x]  Washington State Bar Association, Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, December 2006
[xi] Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman & Mark Larranaga, “An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State,”  Seattle University, January 1, 2015, at page 4.
[xii]  Id. at Figure 1
[xiii]  Id.
[xiv] Sara Jean Green, “Monfort Sentenced to Life in Prison for Killing Seattle Police Officer,” Seattle Times, July 23, 2015
[xv]  Id.
[xvi]  Jennifer Sullivan, “Prosecutors Won’t seek Death Penalty for Michele Anderson,” Seattle Times, July 29, 2015
[xvii] Jennifer Sullivan and Steve Miletich, “Split Jury Spares Carnation Killer McEnroe from Death,” Seattle Times, May 13, 2015
[xviii] Superior Court Special Proceeding Rule 2 – Appointment Of Counsel
[xix]  Lael Henterly, “Holding Three Simultaneous Death Penalty Trials in King County is Unprecedented and Hugely Expensive,” The Stranger, November 12, 2014
[xx]  Death Penalty Information Center, Innocence Database, last updated July 22, 2015
[xxi] M. Gillispie, "Judge dismisses two men charged in 1975 slaying," Associated Press, November 21, 2014.
[xxii] Katherine Beckett & Heather Evans, The Role of Race in Washington State Capital Sentencing 1981-2014, Department of Sociology, University of Washington, filed October 13, 2014 in State v. Gregory, # 88086-7
[xxiii] Id. at 30, 33.
[xxiv] State v. Gregory, # 88086-7, Appellant’s Reply Brief at 51.
[xxv] Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman & Mark Larranaga, “An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State,”  Seattle University, January 1, 2015, at page 71 (State v. Bryon Scherf, sentenced on May 9, 2013)

Emily M. Gause has been practicing in criminal defense since 2011 and recently opened her own practice (Gause Law Offices).  She focuses on felonies in state and federal courts throughout Washington.  She can be reached at emily@emilygauselaw.com. Special thanks to Timera Charlene Drake for her assistance with research and editing.  Appreciation to Carl Luer, Lila Silverstein, Neil Fox, and Clarence Moriwaki for their contributions to this piece.