June 2012 Bar Bulletin
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June 2012 Bar Bulletin

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The Death Penalty, RFK, Thanks and a Warning

By Joe Bringman


A Farewell Smorgasbord

"I can no other answer make but thanks, and thanks."
-William Shakespeare
"Twelfth Night"

This is my last column. Rather than devote it to one topic, I wanted to touch briefly on several while I still have the chance.

The Death Penalty

Our Public Policy Committee spent much of its first year identifying issues to study. The expectation is that for issues it does study the committee will recommend a public position (and possible action) for the Board of Trustees to take on behalf of KCBA.

One of the first issues that the Committee chose to study is the death penalty. This choice could not be more timely. In April, a court for the first time overturned a death sentence based on statistical studies showing systemic racial bias.1 That same month, Connecticut became the fifth state in five years to abolish the death penalty.2

In addition, Oregon's governor recently imposed a moratorium on executions,3 California will bring abolition of capital punishment to the ballot this year,4 and several states (including Washington) are either studying possible abolition of the death penalty or have seen legislation introduced that calls for its repeal.5

There are good reasons to repeal the death penalty. First, there are serious concerns about its implementation. As reflected in the recent Robinson decision out of North Carolina, race often plays a significant role in prosecutors' decisions to seek the death penalty, the selection of juries in capital cases, and/or jurors' decisions to impose that penalty.6 Studies show, for example, that death sentences are far more likely to be sought and imposed when the victim is white, and even more so if the defendant is not.7

For varied reasons - separate trials, differing appellate results or a prosecutor's desire to obtain testimony against an accomplice - clearly culpable killers can escape the death penalty while less-culpable participants in the same crime do not.8

Prosecutorial discretion can lead to odd results, as where prosecutors seek the death penalty for defendants accused of killing one person, but let mass murderers avoid that fate. Ironically, allowing Gary Ridgway (the "Green River Killer") to avoid the death penalty not only conveys the message that the death penalty is not a deterrent to murder - its potential use did not stop Ridgway from killing at least 49 times9 - but may create a perverse incentive for murderers to go on a killing spree rather than stop with a single victim. That way, when caught, they can proffer their ability to locate the bodies as a bargaining chip to avoid a death sentence.

Especially troubling is the number of death-row inmates released from prison in recent years because new evidence, often discovered by autonomous organizations such as the Innocence Project, shows that they did not commit the crime for which they were sentenced to die.10 The Death Penalty Information Center identifies 140 instances since 1973 where concerns about a death-row inmate's innocence led to a gubernatorial pardon or the reversal of a conviction on appeal, followed by either a prosecutor's decision to drop the charges or a retrial that ended with a not-guilty verdict.11

Second, and regardless of what one thinks of the morality or efficacy of the death penalty, it is a drain on public resources. A 2006 WSBA study calculated that a capital case costs about $800,000 more than one in which the prosecutor seeks life without possibility of parole.12 A 2008 Urban Institute study in Maryland put that differential at $2 million.13 A more recent study concluded that, in 2009 alone, having the death penalty cost California $184 million more than if the maximum punishment had been life without parole.14

The higher costs of capital cases do not guarantee a guilty verdict, of course, and even if there is a conviction and a death sentence, they do not guarantee execution. Appellate courts often convert death sentences to life in prison without parole. That's happened 18 times in Washington, including for notorious killers such as "Willie" Mak (Wah Mee massacre participant) and David Rice (killer of attorney Charles Goldmark and family).15 And sometimes appellate courts overturn a conviction entirely, as the Washington Supreme Court did in May, 18 years after a death sentence was imposed.16

Eliminating these costs by itself might bring local budgets into balance without the extensive cuts that we see more and more often, both to justice system budgets and to programs and services on which the lower economic classes primarily rely. Such cost concerns have led even longtime supporters of the death penalty to re-evaluate their position.17

As the above discussion suggests, there is much on which the Public Policy Committee can focus as it analyzes and assesses Washington's death penalty.

Bobby Kennedy

For a sports fan, the number 44 has wonderful connotations - Henry Aaron, Reggie Jackson, Willie McCovey, Jerry West, to name a few. June also brings fond memories - summer vacation, graduations, etc. Still, for me, June will ever be linked to that morning, 44 years ago, when my mother woke me with the words, "Senator Kennedy was shot in the head last night."

I was 10 and experiencing the third assassination of an American political leader, the second in two months. This was the hardest for me. I was too young to fully appreciate what it meant when President Kennedy was shot. While I knew of Martin Luther King, he wasn't on the verge (perhaps) of becoming president. Not only was Bobby a presidential candidate, but he was my state's senator, and his youth and charm, as well as his growing opposition to the Vietnam War, were big attractors.

Since his death, I learned much more about Senator Kennedy that I found worthy of admiration, including his role as presidential counsel during the Berlin Crisis and the Cuban Missile Crisis (including the suggestions to employ a "quarantine" and to accept a proposal in the first of two letters sent by Khrushchev and ignore the second); his crusade as attorney general against organized crime and the Mafia; and his support for domestic policies that sought to advance civil rights and improve the lot of the disaffected, the impoverished and the excluded.

Perhaps most inspiring was Senator Kennedy's effort to ease racial tension and bring the nation together the night of Dr. King's assassination. Speaking to a largely black audience, with references to both Dr. King's message of love and understanding, and the murder of his own brother by another white man, he urged against racial polarization and retribution:

What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or whether they be black.18

Bobby Kennedy showed how to use the law and positions of power to accomplish good. Lawyers could do far worse than to look to his example.

Special Thanks

It would be impossible to mention everyone who made the past three years an amazing experience. I would be remiss, however, if I did not thank:

  • KCBA's staff, from Executive Direc­tor Andy Prazuch and Associate Execu­tive Director Kathleen Jensen on down. Your daily contributions toward fulfilling KCBA's mission are immeasurable.
  • Our trustees, who use their diverse perspectives to keep us on the right track. I am especially grateful to Beth Barrett Bloom, Peter Ehrlichman and Craig Sims, with whom I had the pleasure to serve my full three years as an officer. To them, and to the other trustees and officers with whom I served, your support and thoughtfulness have been invaluable.
  • Our committee and section chairs. By keeping our committees and sections vital and vibrant, you play a key role in serving our members.
  • YLD's officers and trustees. I am amazed at how much YLD does compared to when I was a young lawyer. It is great to know that KCBA's future is in such good hands.
  • Our pro bono volunteers, our Foundation's donors, and the KCBF officers and trustees. Without your passionate support for our pro bono and diversity activities, KCBA would be like any other local bar organization.
  • Chief Justice Barbara Madsen, Superior Court Presiding Judge Richard McDermott and the many other judges who participate in our activities and support what we do, demonstrating a true partnership between bench and bar in the struggle to accomplish justice.
  • My wife and kids, and my firm. Thank you for putting up with the nights when I didn't get home until late and the billable hours that took a hit.

Finally, a huge thank you to all our members for the opportunity to spend the last three years in service of this great association.

A Farewell Warning

While we accomplished much this past year that was good (see article on page 13 for a review), I have one concern as I bow out. A few trustees have urged the board to abandon a policy, adopted in 1988, that forbids KCBA officers and trustees from contributing to or publicly endorsing any person who seeks election or appointment to a judicial position for which our Judicial Screening Committee rates candidates or applicants. I strongly urge, DON'T DO IT.

When KCBA committees evaluate and rate judicial candidates, investigate complaints against candidates or conduct surveys about judicial performance, it is essential that they be - and be perceived to be - wholly impartial. There should not be even a hint that committee members may be subject to influences that would cause them to favor one candidate or judge over another. That's why we require members of these committees to abstain from endorsing or financially supporting any judge or judicial candidate. It's also why KCBA's trustees almost 25 years ago imposed the same restriction on themselves.

As members of the governing body that oversees KCBA's committees, it is incumbent on KCBA trustees to refrain from taking public positions in judicial races lest candidates, their supporters or others conclude - however incorrectly - that a trustee's known support for a candidate influenced committee members in their deliberative process.

Indeed, when the issue first surfaced, Judge McDermott and the chairs of the committees most closely involved in judicial matters uniformly advised the board of how important it is to the mission and work of these committees - and to the perception by judges and other outsiders of how these committees perform their functions - that the board, and every one of its members, be neutral and be perceived as neutral.

My view is that any trustee who votes to overturn the existing policy, to serve a personal desire to support a judicial candidate or to influence an election - to the potential detriment of the important work that KCBA does on judicial issues - would be breaching a fiduciary duty. While I am confident that efforts to repeal or modify the policy will fail, in case I'm wrong I leave you with Henry Blake's final words on "M*A*S*H," spoken to Radar just before his ill-fated trip home: "You behave yourself, or I'm gonna come back and kick your butt."19

Ave atque vale (hail and farewell).

KCBA President Joe Bringman is of counsel to Perkins Coie LLP, where he practices in the Commercial Litigation Group. You can contact Bringman at jbringman@perkinscoie.com.

1 State v. Robinson, No. 91 CRS 23143 (N.C. Super. Ct. Apr. 20, 2012), available at http://www.aclu.org/files/assets/marcus_robinson_order.pdf.

2 The other four states were New Jersey (2007), New York (2008), New Mexico (2009) and Illinois (2011). Arguably, New York's death penalty ended in 2004, when its highest court ruled that the death penalty statute violated the state constitution. People v. LaValle, 3 N.Y.3d 88, 817 N.E.2d 341 (2004). After several failed attempts in the legislature to cure the constitutional defect and restore the death penalty, in 2008 Gov. David Patterson ordered removal of the state's execution equipment.

3 William Yardley, "Oregon's Governor Says He Will Not Allow Executions," N.Y. Times, Nov. 23, 2011, at A14.

4 Maura Dolan, "Voters to Have Say on Death Penalty," L.A. Times, Apr. 24, 2012, at 1.

5 Dalina Castellanos, "States Rethink Capital Punishment," L.A. Times, Apr. 15, 2012, at 16. In Washington, bills to abolish the death penalty were introduced this year in both legislative chambers, but neither made it out of committee. See H.B. 2468 (Wash. 2012); S.B. 6283 (Wash. 2012).

6 State v. Robinson, slip op. at 3 (citing bases for finding a violation of North Carolina's Racial Justice Act).

7 See, e.g., Scott Phillips, "Racial Disparities in the Capital of Capital Punishment," 45 Hous. L. Rev. 807 (2008); Taft Wireback, "Study Ties Race to Death Penalty," Greensboro News & Record, Aug. 15, 2010, at A1; John J. Donohue III, "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution" 7-8, 181-83 (Oct. 15, 2011), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1095&context=john_donohue.

8 See, e.g., Robert Marquand, "Oklahoma Justice: Should Crime Partner Get Death Penalty?" Christian Sci. Monitor, Aug. 7, 1996, at 3; Paul Taylor, "Killers' Fates Diverged: Accomplice Is Executed, Triggerman Faces Parole," Wash. Post, Jan. 16, 1985, at A2.

9 A new study questions whether earlier studies provide any valid conclusions as to the death penalty's deterrent effect. Comm. on Deterrence and the Death Penalty, National Research Council, Deterrence and the Death Penalty (Daniel S. Nagin & John V. Pepper eds., 2012).

10 See, e.g., Steve Mills, "Illinois Bans Death Penalty," Chi. Tribune, Mar. 10, 2011, at 1 ("If there was one moment when Illinois' death penalty began to die, it was on Feb. 5, 1999, when a man named Anthony Porter walked out of jail a free man. Sitting in the governor's mansion, George Ryan watched Porter's release on television and wondered how a man could come within 50 hours of being executed, only to be set free by the efforts of a journalism professor, his students and a private investigator.").

11 See http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row.

12 Washington State Bar Ass'n, Final Report of the Death Penalty Subcomm. of the Comm. on Public Defense 18-24, 31-32 (Dec. 2006), available at http://ulv.web.officelive.com/Documents/dpxWash.pdf.

13 Dalina Castellanos, supra n.5, at 16.

14 Arthur L. Alarcón & Paul M. Mitchell, "Executing the Will of the Voters? A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," 44 Loyola L.A. L. Rev. S41, S109-10 (2011).

15 See http://www.abolishdeathpenalty.org/WCADPOnDeathRow.htm.

16 In re Personal Restraint of Stenson, No. 83606-0, 2012 WL 1638035 (Wash. May 10, 2012), available at http://www.courts.wa.gov/opinions/pdf/836060.opn.pdf. Early indications are that the prosecutor plans to retry the case but has not decided whether to seek the death penalty again. See Jennifer Sullivan, "New Trial Ordered for Man Living on Death Row 18 Years," Seattle Times, May 11, 2012, at B1.

17 See, e.g., Maura Dolan, supra n.4, at 1; Adam Nagourney, "Seeking End to Execution Law They Championed," N.Y. Times, Apr. 7, 2012, at A1.

18 Robert F. Kennedy, Statement Announcing the Assassination of Dr. Martin Luther King, Jr., Indianapolis, Ind. (Apr. 4, 1968), video available at http://www.youtube.com/watch?v=j6mxL2cqxrA.

19 "M*A*S*H: Abyssinia, Henry" (20th Century Fox) (CBS television broadcast Mar. 18, 1975).


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