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February 11, 2014

Should Washington Gov. Jay Inslee be praised or condemned for unilaterally suspending executions in his state?

I am intrigued to have learned right after class that  Washington Governor Jay Inslee decided to take his state's death penalty into his own hands today by declaring a moratorium on executions while he serves as Governor.  I have blogged about this notable decision here at my main blog; and these comments from Governor Inslee’s remarks announcing his execution moratorium (which can be accessed in full at this link) seemed especially notable in the wake of our conversations in class recently:

Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.

We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.

We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.

Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.

Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred....

I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.

But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position....

In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”

I believe that’s too much uncertainty.

Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.

Is this move further proof of the astuteness of the Marshall Hypothesis? And that "death is different"?

That Governor Inslee is (foolishly? rightfully?) much more concerned about equal justice than about individual justice?

That Governor Inslee lacks the stomach needed to faithfully execute his state's laws?

That Governor Inslee has the courage to be a statesman and not merely a politician?

UPDATE:  This post over at Crime and Consequences by Kent Scheidegger takes apart the statement by Gov Inslee to express the view that concerns about equal justice should not preclude application of individual justice to carry out existing death sentences.

February 11, 2014 in Current Affairs, Pro/Con arguments surrounding the death penalty, Who decides | Permalink


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I found the question about whether this shows the governor cares less about individual justice than equal justice interesting, because to my mind the two terms are not mutually exclusive.

I think of individual justice as the principle that everyone gets what they deserve for the crime they committed. Equal justice I define as the principal that people who commit the same crimes be given the same level of punishment, or at least be equally susceptible to the same sentences or to being sentenced to the maximum level for the same crime.

I suppose by eliminating the possibility of a sentence of death for any crime means that some people who may deserve to die will not get that punishment. But isn't individual justice a relative term? How can we decide what a person deserves without comparing him/her to other people in similar situations? Does a person really deserve to die, no matter how heinous the crime, if most people who commit the exact same crime do not get punished?

I am going to put myself out there and say that what the governor did is admirable. Sure, some people might not get "what they deserve" for the crimes they commit, if we follow a very narrow, possibly retributive definition of what individual justice is, but it might put pressure on legislators and other actors who like capital punishment to come up with a better way to decide who gets sentenced to death (one less detrimental to principles of BOTH equal and individual justice). I do think most sentencing systems are very flawed, and maybe it is best to take the option off of the table until it is fixed (hire a task force of think tanks to come up with better procedures? conference with best law professors in the country? however it is to be done). Because, as I said and class, death is final. Once someone dies, reparations can't really be made. At least people who are wrongfully convicted have a (very limited) ability to seek (sadly pitiful) reparations from the institutions that put them in prison.

Posted by: Hannah M. | Feb 12, 2014 2:51:34 PM

I think he is trying to do what’s right, in light of the fact that, yes, death is just different. Death has a finality to it that punishments for other crimes simply don’t. But just “doing what’s right” here seems legitimate given the wide latitude governors have to grant clemency anyway. If he wanted to, he could’ve granted each of them clemency individually. That would’ve been a bit of a ruse, though. Doing it through individual clemency grants, each likely having different justifications, critics could legitimately say that he lacks the stomach to faithfully execute Washington’s laws. But by suspending all executions, he’s making a bold statement and bringing attention to the unequal way the law is applied in his state.

Posted by: Adam P. | Feb 13, 2014 7:59:02 PM

This issue is more simple than either Governor Inslee or Kent Scheidegger suggests: the Governor thinks the the death penalty is morally wrong, and Mr. Scheidegger thinks the death penalty is morally right. This to me explains Mr. Scheidegger's obvious frustration in writing his rebuttal piece.

Even as a death penalty opponent, I admit that Scheidegger effectively rebuts many of Governor Inslee's stated rationales. For example, if the true problem is that the death penalty is too expensive relative to alternatives, then the solution is to significantly curtail the appellate process for capital appeals; if the true problem is delay, then the solution is to shorten the delay; and if the true problem is lack of deterrence, then the solution is more death sentences to boost the deterrent effect. Neither cost, nor delay, nor deterrent value, however, is the true problem. The true problem is that the death penalty is morally wrong, and I think Governor Inslee agrees. The weakness of his stated reasons, and the fact that he only announced the policy after being elected, supports the conclusion that Governor Inslee's true reason is morality.

Everyone's frustration level could be reduced if Governor Inslee would give what I believe is his true rationale, and if his opponents could then respond to that rationale. Instead, we are left with this song and dance of pretextual, data-driven arguments that are simply inadequate to address a fundamentally moral issue like the death penalty. To quote Justice Blackmun:

It seems that the decision whether a human being should live or die is so
inherently subjective-rife with all of life's understandings, experiences,
prejudices, and passions-that it inevitably defies the rationality and consistency
required by the Constitution. (Callins v. Collins, Blackmun, J. Dissenting).

As to the question of equal justice and individual justice, it is irrelevant that all people are distributed a punishment equally if none of them should ever receive it at all. Further, it is impossible for an individual to "justly" receive a punishment if that punishment is immoral in all cases.

Let's put the political correctness aside and debate this issue on the grounds that we really want to: is the death penalty moral or not?

Posted by: Gus L. | Feb 14, 2014 2:13:30 PM

This question - "That Governor Inslee has the courage to be a statesman and not merely a politician?" prompted my response here. Although the Governor's decision aligns with my personal feelings on the death penalty, I do not think it makes him any more of a statesmen.

His decision is a decidedly political one with political costs and ramifications. A strong argument could be made that his decision was one emblematic of a true politician because it consolidated power into his hands. He made the decision and used his executive powers to make it. He stepped around the State Legislature and the Courts. I will give the Governor credit for making a bold move and for having the confidence to make this decision, but I do not think it makes him any more of a statesmen than he was before the decision. In the State of Washington when it comes to the death penalty and sentencing, he is now the only who in the sentencing process - for better or for worse.

Posted by: Max Reisinger | Feb 16, 2014 7:55:11 PM

Kent Scheidegger just seems morally opposed to the death penalty and is attacking Gov. Inslee's position without offering any sort of solution. Scheidegger's only suggestion seems to be for Inslee to "push for reforms" to fix whatever problem Scheidegger is addressing in that paragraph. Imposing the death penalty costs three times as much as sentencing a person to life in prison, however, the solution is not to lessen the appellate process for those offenders. Death is fundamentally different and the reason those appeals are in place is because individuals are entitled to them. The problem with the death penalty is that it is complex and there are no "good solutions." That is one of the reasons that Inslee decided it was best not to impose it at all. I applaud Inslee for the bold sweeping move because I also agree that just granting clemency to each individual offender would not have the same effect.

Posted by: Michelle E. | Feb 17, 2014 10:45:22 AM

In my opinion the Governor is rightfully concerned with the unequal treatment that he has noticed as the death penalty has been applied in the state of Washington. Rather than continue to subject death row inmates to unequal justice, the Governor chose to pause and explore the issue in its entirety. I don't think this necessarily indicates the Governor doesn't have the stomach to carry out the laws of the State of Washington. Rather, he recognizes a flaw in how Washington's laws are being carried out. If, in fact, one being put to death is "sometimes dependent on the budget of the county where the crime occurred" that, in my opinion, is alarming. I don't think the Governor, in taking this stance, is necessarily trying to impose his own personal view of the death penalty (whether its morally right or wrong) but is trying to create a sense of equality and dispel the concern that “the death penalty is like lightening, randomly striking some defendants and not others.”

Posted by: Carrie Thiem | Feb 17, 2014 11:49:09 AM

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