Death Penalty in Retreat in US as Washington State Bans Executions as ‘Invalid’

© AP Photo / Rick BowmerThis Nov. 18, 2011 file photo shows the execution room at the Oregon State Penitentiary.
This Nov. 18, 2011 file photo shows the execution room at the Oregon State Penitentiary. - Sputnik International
Washington state’s Supreme Court unanimously struck down the death penalty as unconstitutional on October 11, only the latest US state to abandon the punishment. Cases before several other state courts as well as the US Supreme Court are challenging other aspects of execution, signaling a changing of tide in attitudes on the question.

"The death penalty is invalid because it is imposed in an arbitrary and racially biased manner," the justices wrote in their unanimous ruling. "While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered."

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The Washington Post noted that the order will not stop any scheduled executions because a moratorium was placed on the punishment in 2014 by then-Governor Jay Inslee, but will instead be converted into life sentences.

Radio Sputnik's By Any Means Necessary spoke with Robert Dunham, executive director of the Death Penalty Information Center, about the Northwest state's decision as well as the status of several other cases concerning capital punishment playing out across the US.

​"Washington state is an interesting state when it comes to capital punishment," Dunham said, noting the state's record of going back and forth on legalizing and banning state executions. Earlier this year, a bill backed by Seattle's district attorney and widely projected to pass got most of the way through the state legislative process, but "for reasons that are unclear," Dunham said, the state house's leadership failed to put it to a final vote before the end of the session.

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However, where the legislature seems to have gotten caught up in partisan politics, the state's supreme court was able to bypass that, Dunham said, acting "solely on the facts, based on a pretty solid study of what was going on" was able to follow through on the conclusion that "the death penalty is not constitutionally sustainable," Dunham told hosts Eugene Puryear and Sean Blackmon.

Dunham noted that "the death penalty in the United States is becoming more and more geographically isolated" as abolition advances in many states. In New England, the only state that retains capital punishment in New Hampshire, due only to a governor's veto over a legislative vote to abolish it. Pennsylvania has placed a moratorium on the practice, and on the West Coast, both Oregon and Washington had placed moratoria prior to Washington's abolition.

Thus, Dunham noted, the practice is "leaving the north" and "becoming more and more of a creature of the south and the southwest."

Dunham discussed one very high profile death penalty case in the US south, that of Vernon Madison in Alabama. Madison, who's been in jail for 33 years and suffered multiple strokes and brain damage, "can't tell you the season, the day of the week or recite the alphabet beyond ‘G,'" noted on October 2, citing arguments made by Madison's lawyers. Worst of all, 68-year-old Madison is only scarcely aware that he's due to be executed for killing a police officer in 1985, lacking any memory at all of the crime.

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"Alabama's been trying to kill Vernon Madison for a long time," Dunham said, "and he's had a number of unconstitutional trials. The issue in this case, from a legal perspective, is no longer whether he is constitutionally sentenced to death — although there are persistent questions about that — it is whether he is mentally competent to be executed." Dunham noted that even before suffering his "catastrophic" strokes, Madison was "borderline, intellectually [speaking]."

Dunham said the central issue with Madison is that he doesn't have "a rational understanding of the legal process, a rational understanding of what he is sentenced to death for and what execution means."

The state of Alabama argues that he does.

Dunham told Sputnik that "when the deputy attorney general suggested that Madison was competent to stand trial there were gasps, but there were people audibly holding their breath."

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"That's almost incomprehensible," Dunham said, noting that it tells you "something about the state of mind of the Alabama prosecutors — it's almost as if they would prosecute a potted plant."

Now, however, the US Supreme Court has halted his execution, taking on the case of Madison v. Alabama in January and hearing arguments earlier this month.

Another case, heard by Tennessee's Supreme Court on October 3, dealt with the question of whether Edmund Zagorski's scheduled execution by lethal injection only eight days after the case was heard would amount to torturing him to death. The court ruling, which Dunham said was "almost in your face," was 4-1 on October 8 against the case. However, only hours before Zagorski's scheduled execution, Tennessee Governor Bill Haslam stopped it for an additional 10 days in order to give a new challenge time to work its way through the US 6th Court of Appeals, The Tennessean reported October 11.

This, Dunham said, is due to the ideological whiplash the court experiences as the political makeup of its justices changes.

The question of execution by lethal injection has been raised in Tennessee and other states due to several botched executions that only resulted in extreme pain caused to the prisoner.

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Dunham noted that a study in North Carolina "showed that 73 per cent of everybody who's on North Carolina's Death Row was convicted and sentenced at a time in which the prosecutors had no discretion not to seek the death penalty if they charged [the suspect with] first-degree murder. So that meant that someone may have committed a first-degree murder, but they could have been borderline intellectually disabled, they could have been seriously mentally ill, there could have been a whole range of reasons why the prosecutor would not want to seek the death penalty, but the prosecutor didn't have that choice. And at that same time, there was no institutional capital defender, so that you got whoever the court appointed."

"In 2001, both of those things changed and since that time the number of death sentences imposed in North Carolina has plummeted. And we've seen across the country that when quality institutional capital defenders come into cases, people don't get sentenced to death."

"What we know then, is that structurally, what was going on in the 80s and 90s [in North Carolina] was causing people to be sentenced to death who wouldn't be sentenced today, and we're seeing the same thing when we look at the cases where people are currently up for execution."

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