The Juvenile Death Penalty in Washington: a State Constitutional Analysis

• Publication year: 1991

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 2WINTER 1992

The Juvenile Death Penalty in Washington: A State Constitutional Analysis

Bruce L. Brown(fn*)

On February 6, 1990, a Kitsap county jury found Michael Monroe Furman guilty of aggravated first degree murder.(fn1) On March 6, 1990, the trial court sentenced Furman to death.(fn2) At the time of the murder, Furman was seventeen years and ten months old.(fn3) He was, therefore, a juvenile as defined by Washington statute.(fn4) Furman is the first juvenile to be sentenced to death in Washington since 1932, and his sentence is unique among all of the juvenile murder cases filed under the current statute.(fn5)

Furman's appeal is currently pending before the Washington State Supreme Court.(fn6) In that appeal, Furman asserts that the imposition of the death penalty for a crime committed while a juvenile is cruel punishment that violates Article 1, Section 14 of the Washington Constitution.(fn7) This Article argues that Furman should prevail.

The Washington Supreme Court should hold that Article 1, Section 14 bars the execution of juveniles for numerous reasons. First, the Washington State Constitution provides greater protection to juveniles than the United States Constitution.(fn8) Second, applying the death penalty to juveniles serves no valid legislative purpose because that penalty has no deterrent or retributive value.(fn9) Third, no legislative declaration expressly states that the death penalty should apply to juveniles. Absent such a declaration, the court should not abdicate its state constitutional responsibility to protect individuals. Fourth, in other jurisdictions and in foreign countries, the trend is to not apply the death penalty to juveniles.(fn10) Finally, as noted above, Furman's sentence is unique among recent juvenile murderers.(fn11)

This Article first briefly examines the United States Supreme Court cases dealing with the juvenile death penalty. Second, the Article describes the history and structure of Washington's death penalty statute. Third, the Article analyzes whether the state constitution's ban on cruel punishment prohibits the imposition of the death penalty on juveniles.

Such a state constitutional analysis necessarily requires examination of two issues. Because the U.S. Supreme Court has upheld the constitutionality of applying the death penalty to persons sixteen years or older, the threshold issue is whether the Washington Constitution provides greater protection to juveniles between sixteen and eighteen years of age. In analyzing this threshold issue, the Article applies the reasoning of State v. Gunwall(fn12) and concludes that Washington's Constitution does provide greater protection than its federal counterpart.

The second issue is whether the juvenile death penalty violates the Washington Constitution's ban on cruel punishment. Applying the four-part test enunciated in State v. Fain,(fn13) this Article concludes that the Washington Constitution's ban on cruel punishment prohibits the imposition of the death penalty on juveniles. Thus, the Washington Supreme Court should vacate Furman's death sentence.

I. The Federal Constitution and the Juvenile Death Penalty

The United States Supreme Court has twice addressed whether the Eighth Amendment(fn14) prohibits imposing the death penalty on juveniles. In Thompson v. Oklahoma,(fn15) a plurality of the Court held that the Eighth Amendment prohibits the execution of offenders who were under the age of sixteen at the time of the offense.(fn16) Justice O'Connor concurred on nonconstitutional grounds.(fn17) One year later, in Stanford v. Kentucky,(fn18) a different plurality held that the Eighth Amendment does not bar imposing the death penalty on offenders who were either sixteen- or seventeen-years-old at the time of the offense. Once again, Justice O'Connor concurred in the judgment.(fn19) Thus, the Supreme Court has indicated that the Eighth Amendment does not bar states from executing someone for an offense committed when the offender was sixteen years old or older.

II. The Washington Death Penalty Statute

In 1972, the United States Supreme Court invalidated most state death penalty statutes.(fn20) Shortly thereafter, the Washington State Supreme Court declared the Washington death penalty statute unconstitutional.(fn21) Over the course of the next decade, the Washington State Legislature failed in several attempts to enact a constitutional death penalty statute.(fn22) Finally in 1981, the legislature passed the current statute.(fn23)

The current statute permits the execution of anyone convicted of aggravated first degree murder. A person is guilty of aggravated first degree murder if he or she commits premeditated first degree murder,(fn24) and a jury finds the existence of one or more statutory aggravating circumstances.(fn25) If the State intends to seek the death penalty, it must file written notice of that intent within thirty days of arraignment.(fn26)

A trial in which the State seeks the death penalty is divided into two parts: the guilt phase and the penalty phase. The court first empanels a jury to determine whether the defendant is guilty of aggravated first degree murder.(fn27) If the jury finds the defendant guilty, the trial court then reconvenes the same jury to hear the special sentencing proceeding to determine the penalty.(fn28)

During the penalty phase, both the State and the defendant may make opening and closing arguments and present evidence.(fn29) After the State and the defendant rest, the statute requires the jury to answer the following question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"(fn30) If the jury unanimously answers "yes," the court must sentence the defendant to death.(fn31) If the jury cannot reach a unanimous verdict, or if the jury unanimously answers "no," the court must sentence the defendant to life imprisonment without possibility of parole.(fn32)

Whenever a trial court sentences a defendant to death, the Washington Supreme Court conducts a mandatory review of the sentence.(fn33) The court must determine the following: 1) whether the evidence is sufficient to justify the jury's determination that there are not sufficient mitigating factors to merit leniency; 2) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases; and 3) whether the jury allowed passion or prejudice to influence its verdict.(fn34) If the court decides all three questions against the defendant, then the supreme court remands the case to the trial court for issuance of a death warrant.(fn35)

III. State Constitutional Analysis

As noted above, the United States Supreme Court has held that the Eighth Amendment does not prohibit imposition of the death penalty on juveniles who were sixteen or seventeen at the time of the offense.(fn36) State constitutions may, however, provide greater protection to individual rights than corresponding federal constitutional provisions.(fn37)

In State v. Gunwall,(fn38) the Washington Supreme Court sought to establish a principled basis for determining when courts should reject federal precedent in favor of an independent state constitutional interpretation.(fn39) In Washington, two stages of analysis must be completed by the court in determining whether the state constitution provides greater protections. First, the court must determine whether the Washington Constitution's protections against "cruel" punishment are broader than those against "cruel and unusual" punishment in the Eighth Amendment. If the court finds Washington's protections broader, it must then determine whether those protections are broad enough to prohibit the imposition of the juvenile death penalty. The following sections conclude that the Washington Constitution's protections are broad enough to preclude the juvenile death penalty.

A. The Gunwall Analysis

The majority in Gunwall criticized courts that simply "announce that their decision is based on the state constitution but do not further explain it."(fn40) To counter this tendency, the court identified six nonexclusive factors that Washington state courts must examine when deciding whether to interpret a state constitutional provision more expansively than its federal counterpart:(fn41)1) the text of the state constitution;2) the significant differences in the texts of parallel provisions of the federal and state constitutions; 3) the history of the state's constitutional and common law;4) the pre-existing state law; 5) the significant differences in the structures of the federal and state constitutions; and6) the presence or absence of particular state interests or local concerns.(fn42)

To determine whether a given state constitutional provision is more protective of individual rights than the federal constitution, the supreme court has consistently analyzed all six Gunwall factors.(fn43) Furthermore, the court has repeatedly refused to consider state constitutional issues absent sufficient briefing of the Gunwall factors.(fn44) The court's recurring references to all six factors indicate that a rejection of federal precedent is principled only when it follows an analysis of all the Gunwall criteria. The following section...