On Tuesday afternoon in Olympia, Washington state Gov. Jay Inslee announced that he will unilaterally impose a moratorium on death penalties during his tenure in office.
On legal grounds, Washington state’s Constitution and statutes give the governor the power to grant temporary reprieves from capital punishment to death row inmates, often referred to as stays of execution. It does not mean that the next governor could not step into office and remove the reprieves.
On political grounds, Inslee has acted to step around the Legislature, brush aside the courts, and substitute his own version of morality for that of jurists who reviewed the facts in each case and came to the conclusion that the just punishment for some horrible crimes was to deprive the guilty person of their life.
Washington’s top government lawman, State Attorney General Bob Ferguson, weighed in.
“Washington’s Constitution and state statutes grant the governor significant powers over the fate of individuals sentenced to death,” Ferguson said. “Consequently, the governor has the authority to hit the “pause” button for executions in Washington.”
The attorney general’s statement pointed out that there are currently nine death row inmates in state prisons, all of whom are appealing their convictions.
Ferguson’s opinions about the death penalty as expressed Tuesday are far less passionate than what he has said in the past. In the mid-1990s while he was a law student, Ferguson became the lead researcher on an appeals case to overturn the conviction of Ronald Turney Williams, a three-time murderer and cop-killer sitting on Arizona’s death row. According to the May 2012 report in Washington State Wire:
Though not officially Williams’ attorney, Ferguson became the lead researcher, communicating with Williams in phone calls and letters. And what is most striking about an interview Ferguson gave to Student Lawyer magazine at the time is that he went well beyond the usual legal rhetoric about the need to provide all clients with representation.
“The reason I went to law school was to work against the death penalty,” he explained. “I see absolutely no justification or support for executing people. But after this experience I came away feeling almost radicalized against the death penalty.”
His research didn’t overturn the conviction or set aside the sentence. But the Arizona court, after reading the motion he had written, overturned the previous decision and appointed counsel.
“It felt great,” Ferguson told the magazine… “In a way, I felt bad that here was this guy on Death Row and all he had was me to help him out. After that, not making law review didn’t seem like such a bad thing.”
Williams never did get his lethal cocktail.
But Ferguson’s position on the death penalty didn’t motivate Inslee’s decision to bypass the legal system. So what did? Inslee’s rationalization for his act tilts at philosophical straw men, citing the reversal rate of convictions, cost of prosecution, length of time to execution and lack of evidence that capital punishment serves as a deterrent as justifications for his sweeping edict.
On the first three points, he is factually accurate but draws the wrong conclusion. The cost of death penalty cases is high and the legal challenges to make a conviction stick and see a sentence delivered are rigorous by design. Inslee views the process is flawed, yet in fact it is accomplishing what it should. By making it extremely difficult, it is nearly impossible for the state to execute an individual before eliminating all shreds of doubt that such action is appropriate in light of their crime.
On his fourth point, however, Inslee has given the people of Washington a peek into his political philosophy. By claiming that the lack of evidence that the death penalty serves as an effective deterrent (a dubious assertion on its face), he shows us that he has a severely underdeveloped notion of the function a criminal justice system plays in a civil society.
Criminal sentences may be valuable as a deterrent, but for a society that wishes to be based on the rule of law, it is vital that we are able to punish those who transgress its shared morals and values. Deterrence is a welcome by-product of our transaction with the convicted criminal if that occurs, but it is the effect the act of punishment has to reinforce legitimacy and cement our social contract that is so critical.
And the social contract is in desperate need of mending of late.
Earlier this year, Inslee also vowed to enact sweeping carbon tax rules by executive order if the Legislature failed to do so. Pres. Barack Obama’s use of executive orders to amend key provisions of the enacted Obamacare law without a vote by Congress is under scrutiny from Republicans and some members of the press. In Virginia, Democratic Attorney General Mark Herring has publicly stated he will not defend his state’s law defining marriage as only legal between a man and a woman. Those are just the examples that leap to mind.
Inslee said that he hoped his decision would bring Washington state into “a growing national conversation about capital punishment.” But national conversations in a democratic society begin with the people, build consensus and end with government action. Inslee’s autocratic act is a perversion of that process and a continuation of a trend that, regardless of which party seizes the reins of power, must be reversed.