In Washington, a Life in the Balance

Darold Ray Stenson was to be executed by the State of Washington today. His execution would have marked the first execution in the state in over seven years. Thankfully, both state and federal courts have granted him a temporary stay, and at least for the next 90 days, Mr. Stenson will live.

Statistical evidence suggests that troubling sentencing disparities exist in Washington based on the race of the victim. Washington prosecutors have sought death almost three times more when one or more of the victims is white than when the victims are persons of color, and a defendant in Washington is more likely to be sentenced to death if he killed a white victim. Both of Mr. Stenson’s victims were white.

Poor defendants are also more likely to land on death row. No defendants who retained counsel in an aggravated murder case have ever been sentenced to death in Washington. Only indigent defendants, like Mr. Stenson, with no choice but to rely on appointed counsel, have been sent to death row. In Washington, as across the country, Justice Douglas’s observation in Furman v. Georgia rings true: “The defendant of wealth and position never goes to the electric chair or the gallows.”

In Washington, as in other states, a death sentence also depends more on the location of the crime than the character of the defendant or the nature of the crime. Clallam County, where Mr. Stenson was prosecuted, has sought the death penalty in 60 percent of eligible cases, almost twice the state-wide average. A recent Washington State Bar report (PDF) found that in the last 25 years, death sentences have been imposed in only 10 of Washington’s 39 counties. Mr. Stenson may have never arrived on death row had his crime occurred in another county.

With the ACLU of Washington, the ACLU Capital Punishment Project filed a friend-of-the-court brief presenting evidence of the racial, economic, and geographic disparities that plague Washington’s death penalty system. The Washington State Bar Association and Murder Victims Families for Reconciliation (MVFR) also filed friend-of-the-court briefs in support of Mr. Stenson’s appeal. The MVFR brief described how some family members of the victims in Mr. Stenson’s case were denied the opportunity to tell the jury that they opposed the death penalty for Mr. Stenson. Though the Washington Supreme Court initially rejected these claims on procedural grounds, Mr. Stenson’s counsel has urged the court to reconsider. For now, the court has upheld a lower trial court’s stay of Mr. Stenson’s execution so that new DNA testing may be conducted.

Beyond these systemic sentencing disparities, even though he was convicted of killing two persons, Mr. Stenson’s death sentence is clearly arbitrary and disproportionate when compared to other Washington murder cases. In fact, Washington mass murderers have escaped the death penalty. Gary Ridgway, the “Green River Killer,” and one of the most infamous serial killers in our country’s history, was convicted of killing over 48 women; authorities suspect he killed many more. He is serving life without parole. Other convicted murderers who have killed many victims in much more aggravated circumstances than Mr. Stenson have also escaped death. The notion that these mass killers will remain in Washington’s prisons for the rest of their lives yet Mr. Stenson could be executed for an undeniably less aggravated crime is impossible to justify.

Not only has Washington not executed anyone in over seven years, but no one has been sentenced to death there in almost as much time. Washington has executed only four people in the past 45 years, and three of them waived their appeals and volunteered for execution. The last — and only — involuntary execution under Washington’s modern death penalty system occurred over fourteen years ago.

Such infrequent, arbitrary, and discriminatory administration of the death penalty is the very definition of a failed system. Today, Mr. Stenson will live, but his fate is far from certain. We will hope that the state and federal courts reviewing his case in the coming weeks and months will spare Mr. Stenson’s life permanently.