Unbridled Prosecutorial Discretion and Standardless Death Penalty Policies: the Unconstitutionality of the Washington Capital Punishment Statutory Scheme

• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 2WINTER 1984

Unbridled Prosecutorial Discretion and Standardless Death Penalty Policies: The Unconstitutionality of the Washington Capital Punishment Statutory Scheme

James E. Lobsenz(fn*)

I. Introduction

The statutory scheme for capital punishment in Washington State(fn1) vests local county prosecuting attorneys with the power to seek the execution of murderers in certain circumstances. But nothing requires prosecutors to seek capital punishment. The choice is theirs and theirs alone. No judge may compel a prosecutor to seek death. Alternatively, no judge may prevent a prosecutor who wishes to seek the death penalty from doing so. And given the demise of the grand jury, there is no check at all against overzealous prosecutorial decisions to seek death. While a jury may ultimately refuse to authorize capital punishment, the prosecutor alone has the power to trigger the process of forcing defendants to run the gauntlet of a death penalty trial.

This awesome power granted to Washington county prosecutors is not only unchecked by any other institution, it is unguided by any set of meaningful standards. Prosecutors are authorized-but not required-to seek death in cases of aggravated first degree murder where there is "reason to believe that there are not sufficient mitigating circumstances to merit leniency."(fn2) But the legislature has not said what constitutes a mitigating circumstance, nor how many such circumstances are "sufficient" for leniency, nor whether some mitigating circumstances are more meritorious than others. Every county prosecutor in the state is left to decide these issues based upon his or her own moral philosophy and conscientious principles.

Perhaps no other legislative mandate delegates so much power, in a manner so unchecked and unguided by standards or definitions, than this legislative decision to anoint county prosecutors as individual guardians of the moral conscience of our local communities. The legislature has given prosecutors unfettered power to request executions, or not to request executions, as they alone see fit.

This Article advances six reasons why Washington's statutory scheme for capital punishment should be deemed unconstitutional. As set forth below, the current death penalty statutes violate the separation of powers doctrine, the grand jury indictment clause of the fifth amendment, the equal protection clauses of the fourteenth amendment and article I, section 12 of the Washington State Constitution, the vagueness doctrine of the due process clause, and the doctrine of unlawful delegation of legislative power. Finally, it promotes an unequal administration of capital punishment in further violation of the guarantee of equal protection of the law.

II. Separation of Powers

The Washington Supreme Court has repeatedly recognized that "[t]he separation of powers doctrine is a fundamental principle of the American political system."(fn3) It has not hesitated to rigorously enforce the separation of powers doctrine where one branch of government has intruded upon the province of another.(fn4) The supreme court has traced the history of the doctrine back to the eighteenth century, noting that the interrelated concepts of separation of powers, checks and balances, and inherent judicial power, "are major constituents of our governmental framework."(fn5) The philosophers of the Enlightenment era, John Locke, Henry St. John, Viscount Bolingbroke, and Baron de Montesquieu "were influential proponents of their individual versions of the doctrine."(fn6) By 1776, the separation of powers doctrine "was being advanced as the only coherent constitutional theory upon which an alternative to colonial forms of government could be based."(fn7)

While the doctrine is perhaps best known in its national context, "[t]he constitutions of several states, inheritors of the federal constitutional legacy, also embody the principle."(fn8) The Washington Supreme Court has twice recognized that under some circumstances, in order to preserve judicial independence and the continued vitality of the separation of powers doctrine, courts may, upon clear and cogent proof of a need for additional financial resources, compel the legislature to authorize the expenditure of public funds necessary for the operation of the judicial system.(fn9) "Separation of powers . . . dictates that the judiciary be able to insure its own survival when insufficient funds are provided by the other branches."(fn10) The court has forbidden the legislature to make adjudicatory decisions on legal issues such as what constitutes "economic impossibility."(fn11)

Applying the separation of powers doctrine, the court recently held unconstitutional a statute which purported to allow escrow agents to prepare documents for real estate transactions as an encroachment on the judicial function of regulating the practice of law.(fn12) Most importantly, the court held unconstitutional a statute which granted prosecuting attorneys the power to veto a deferred prosecution as an encroachment upon the judicial function of sentencing.(fn13)

A legislative scheme which grants the prosecutor a veto power over the applicability of the death penalty violates the doctrine of separation of powers by unconstitutionally usurping the judicial sentencing function. The current statutory scheme provides that upon conviction of aggravated first degree murder, a special sentencing proceeding to consider the imposition of the death penalty "shall be held if a notice of special sentencing proceeding was filed and served as provided by RCW [Revised Code of Washington] 10.95.040."(fn14) The legislature has thus made the act of the prosecutor in filing the notice a mandatory prerequisite for any death penalty proceeding. Without the filing of such a notice, the court is powerless to consider imposing a sentence of death.

This legislative scheme is similar to the scheme struck down as unconstitutional in State v. Cascade District Court.(fn15) In Cascade, the court examined RCW 10.05,(fn16) which provides for deferred prosecution in courts of limited jurisdiction where the accused's criminal conduct is caused by alcohol, drug, or mental problems for which the defendant is in need of treatment. A defendant who wishes to obtain a deferred prosecution treatment program must file a petition at the time of arraignment.(fn17) RCW 10.05.030 then purports to grant the prosecuting attorney the power to veto any further action on the petition.(fn18) According to the legislative scheme, if the prosecutor agrees to a diagnostic referral and evaluation, the defendant may subsequently submit a proposed treatment plan to the court for the court's approval.(fn19)

In Cascade, the prosecution conceded that "the decision to defer prosecution following an evaluation and written report is entirely a judicial function."(fn20) But the state contended that the decision whether to continue arraignment and refer the accused for a diagnostic evaluation was not a judicial function. The supreme court's inquiry thus focused on whether the decision to refer for evaluation was "essentially judicial or prosecutorial, and if wholly or partially judicial, whether the prosecution may exercise a 'veto' over the court's decision."(fn21)

After reviewing various statements of legislative purpose, the Cascade court concluded "that the decision to refer an accused for a diagnostic evaluation is essentially a sentencing alternative and therefore at least partially a judicial act."(fn22) The court emphasized that the decision to approve the sentencing alternative of a deferred prosecution "involves an examination of the circumstances of the particular case, weighing of the allegations, hearing argument contrary to the petition, and resolving the disputes between the parties. These are fundamentally judicial acts."(fn23)

The state argued that vesting the court with the authority to initiate consideration of a deferred prosecution invaded the charging function traditionally reserved to the prosecuting attorney. Recognizing that a deferred prosecution was a sentencing (or "dispositional") alternative, the court rejected the state's argument, noting that "[t]his contention overlooks the fact that the court's disposition of the petition follows the prosecutor's decision to charge; once the accused has been charged and is before the court, the charging function ceases."(fn24)

Having concluded that consideration of a deferred prosecution petition was essentially a judicial function, the Cascade court then observed that by making the concurrence of the prosecutor a prerequisite for approval of the petition, "the statute permits a prosecutor to wholly arbitrarily veto a judicial disposition."(fn25) By granting the executive branch of government a complete veto over the exercise of a judicial function, the statute was deemed to violate the separation of powers doctrine.(fn26)

The statute at issue here, RCW 10.95.040,(fn27) is fatally flawed in the same manner as the statute struck down in Cascade. It too grants the prosecutor an arbitrary veto power over the availability of a sentencing alternative. Like the filing of the petition for a deferred prosecution, the filing of notice of a special sentencing proceeding "follows the prosecutor's decision to charge."(fn28) Once one accused of aggravated first degree murder...