Mitigation Evidence and Capital Cases in Washington: Proposals for Change

• Publication year: 2002

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 2FALL 2002

Mitigation Evidence and Capital Cases in Washington: Proposals for Change

Mary Pat Treuthart, Anne Branstad, and Matthew Kite(fn*)

I. Introduction

On August 28, 2001, at 12:52 a.m., the state and citizens of Washington executed James Elledge.(fn1) Mr. Elledge had been convicted and sentenced to die for murdering Eloise Fitzner in the basement of a church in Lynnwood, Washington.(fn2) The State of Washington previously convicted Mr. Elledge of homicide after he bludgeoned a motel clerk to death in 1974 over a dispute about a bill.(fn3) Prior to that incident, Mr. Elledge had attacked a Western Union clerk in New Mexico and poured gasoline over her.(fn4) At the sentencing hearing for the murder of Eloise Fitzner, the jury was made aware of Mr. Elledge's history of serious criminal behavior.

In making its decision, however, the jury was not provided any mitigation information about James Elledge that may have merited imposing the more lenient sentence of life in prison without parole. For example, the jury did not know that James Elledge's childhood was so brutal that he once asked to be kept in a reform school rather than return home.(fn5) The jury never learned that James Elledge was married, that he had two daughters, and that he had grandchildren.(fn6) The jury was unaware that James Elledge had many friends within his church and community. The jury was ignorant of the fact that James Elledge had pleaded insanity in the prior homicide case.(fn7) More important, the jury was never told that Mr. Elledge had saved the life of a prison guard.(fn8) The jury that sentenced James Elledge knew only part of the story about a man it condemned to die.

The death penalty is qualitatively different from any other penalty in our system of criminal justice.(fn9) Therefore, it must be applied in a manner that is not arbitrary or capricious.(fn10) Death sentences should be reliably imposed on an individualized basis.(fn11) The presentation of mitigation evidence is essential to meet these requirements.(fn12) Accordingly, Washington's legislature enacted a death penalty statute that specifically provides for the presentation of mitigation evidence and relies on this evidence for proper operation of the death penalty scheme.(fn13)

The Washington statutory scheme, however, contemplates an adversarial process wherein defendants and their attorneys will vigorously oppose the imposition of a death sentence. In situations where mitigation evidence is not presented, the structure of Washington's death penalty statute fails.(fn14) These situations arise when a defendant opts not to put on a defense and is a "volunteer"(fn15) for the death penalty, when the defendant's attorney provides ineffective assistance of counsel, or when the defense is forced to make a strategic choice to withhold mitigation evidence. The underlying legislative assumption that defendants will vehemently fight for their lives no longer applies. In these circumstances, the state imposes death sentences in an arbitrary and capricious manner, and juries are forced to impose unreliable and nonindividualized sentences.

Part II of this article examines the United States Supreme Court's recognition of the importance of mitigation evidence in capital cases. Part III then focuses on the role of mitigation evidence in Washington's death penalty scheme. The following section, Part IV, addresses the public policy implications when mitigation evidence is not presented. Finally, Part V proposes changes to the current sentencing procedure in Washington involving capital crimes.

II. The Role of Mitigation in a Constitutionally Sound Death Penalty Statute

For three decades, beginning with Gregg v. Georgia,(fn16) the Supreme Court has provided states with direction regarding use of the death penalty. The foundation of the Court's concern regarding the death penalty is that it not be "inflicted in an arbitrary and capricious manner."(fn17) In Gregg, the Court informed the states that they could meet the Court's constitutional concerns with "a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance."(fn18) The Court then upheld a death penalty statute that provided procedures permitting "the jury to consider the circumstances of the crime and the criminal before it recommends sentence."(fn19) The Court specifically mentioned that the information that could be provided to the jury included "special facts . . . that mitigate against imposing capital punishment."(fn20)

The same day it announced the Gregg decision, the Court also handed down a ruling invalidating a mandatory death penalty scheme.(fn21) In Woodson, the Court found that North Carolina's statute prevented consideration of the relevant character aspects and the record of a convicted defendant before imposition of a death sentence.(fn22) Justice Stewart's plurality opinion stated:A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind ....[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment. . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.(fn23) This individual assessment creates a certain amount of reliability that a particular sentence is the most appropriate.(fn24)

Two years after the Gregg and Woodson decisions, the Court provided explicit instructions in Lockett v. Ohio(fn25) regarding what "relevant facts" should be considered in capital sentencing. Indeed, the Court sought to furnish "the clearest guidance that the Court can provide" regarding the substance of a death penalty statute.(fn26) As a fundamental aspect of this guidance, the Court concluded thatthe Eighth and Fourteenth Amendments require that the sen-tencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.(fn27)

The presentation of mitigation evidence is essential to provide the adequate information a jury needs to reliably make an individualized assessment regarding the application of the death penalty.(fn28)

In Buchanan v. Angelone,(fn29) the Court further clarified its imperative to the states. In considering the constitutional sufficiency of jury instructions regarding mitigation evidence, the Court pointed to the demarcation between the eligibility phase and the selection phase of the capital sentencing process.(fn30) Whether a person is eligible for the death penalty is constrained by a requirement that the death penalty is a proportionate penalty for a particular crime and is thus not imposed arbitrarily and capriciously.(fn31) At the selection phase, there is a "need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination [that a death sentence is appropriate]."(fn32) Therefore, "[i]n the selection phase . . . the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence."(fn33) In formulating death penalty statutes, the states "may shape and structure the jury's consideration of mitigation as long as [they do] not preclude the jury from giving effect to any relevant mitigating evidence. "(fn34)

The presentation of mitigation evidence is indispensable in ensuring an individualized sentence determination.(fn35) Consequently, juries may not be prevented from considering any relevant mitigation evidence presented in a case.(fn36) Respect for human dignity-central to our system of criminal justice-requires the consideration of mitigating circumstances as an essential part of the process of inflicting the death penalty. The presentation of mitigation evidence is a fundamental requirement for a sound death penalty statute.

III. The Washington Statute and Mitigation

The capital sentencing process intertwines individual rights of the accused, societal interests, ethical obligations of counsel, and social policy concerns. The presentation of mitigating evidence raises important constitutional questions and affects the overall integrity of the imposition of the death penalty.

The Washington State Legislature enacted a death penalty statute that not only specifically provides for the presentation of mitigation evidence but also relies on this evidence for proper operation of the entire capital scheme.(fn37) In the eligibility and selection phases, as well as through mandatory review, the legislature sought to promote a system that is neither arbitrary nor capricious and that allows for more individualized sentencing determinations.(fn38) Under Washington's death penalty scheme, prosecutors, jurors, judges, and the governor depend upon mitigation evidence to constrain and guide their decisionmaking.(fn39)

Mitigation evidence is a crucial aspect...