Editorial: Strike death penalty, forced sterilization from books

By The Herald Editorial Board

Among the many substantive bills that have already been passed or are scheduled for votes soon in the state Legislature as it starts to wrap up its session later this month, is some housekeeping of state laws.

Assuming the legislation is signed by Gov. Jay Inslee, both chambers have voted to adopt Senate Bill 5087, which would wipe the Revised Code of Washington — the compendium of state laws now in effect — clean of statutes that once:

Allowed judges to order sterilization of people deemed “insane,” “feeble-minded,” “dependent” or “diseased”;

Required public employees to sign a loyalty oath that they were not communists;

Limited the bargaining rights of charter school employees;

Allowed police to inspect massage businesses without a warrant;

Required a two-thirds majority of the Legislature or a public referendum to raise taxes; and among a long list of others;

Authorized courts to impose capital punishment for aggravated first-degree murder.

What those laws all share — and why they are headed for official removal from the RCWs — is that they’ve already been ruled unconstitutional by state or federal courts, and while still on the books are no longer enforceable.

“By leaving these on the books we are misleading the public in what laws govern the state,” said Chalia Stallings-Alla’ilima, assistant state attorney general, during a January hearing before the Senate Law and Justice Committee. “And it’s leading to confusion, which undermines confidence and makes the law unclear for those who are trying to use it.”

After review of the RCWs, a list of statutes ruled unconstitutional by the courts was provided by state Supreme Court Chief Justice Steven Gonzalez to the Attorney General’s Office, which requested the legislation, then sponsored by state Sen. Jamie Pedersen, D-Seattle.

The absurdity of these “zombie” laws was brought to the attention of Pedersen when a constituent pointed out a 2022 New York Times article that reported that of 32 states that had forced sterilization laws during the first-half of the 20th century, Washington was the only state with the law still on the books.

“I looked it up and, in fact, even though the statute was struck down as unconstitutional in 1941 it does remain in Title 9 of the Revised Code of Washington,” Pedersen said at the same January hearing.

The statute regarding the death penalty, not surprisingly, drew the most attention as the legislation worked its way through both chambers, a sign that the debate about capital punishment continues, with opponents of the bill wanting to see the Legislature consider changes to the law that could meet constitutional tests, rather than remove it from state law.

Proponents hold that — along with being a just punishment — the threat of execution is useful in securing guilty pleas and other information from defendants. State Rep. Jenny Graham, R-Spokane, whose sister was a victim of Green River Killer Gary Ridgeway, said during floor debate on April 7 that authorities were able to use the death penalty as leverage against Ridgeway to learn the locations of several of his victims’ remains and that “those families would not have had justice” without it, Axios reported Tuesday.

But Ridgeway’s case also points to capital punishment’s inequities. Ridgeway, now 74 and convicted of 49 separate murders during the 1980s and 1990s — making him the second most prolific serial killer in U.S. history — received terms of life in prison, rather than the death penalty.

Opponents have also long argued that capital punishment in Washington state, as elsewhere, was too costly and inequitably applied in cases involving racial and ethnic minorities. A 2015 study by Seattle University found that death penalty cases on average cost the state in prosecution and defense $1 million more than non-death penalty cases. Likewise, a 2004 study found that while Blacks were only 3 percent of the state population, they were 18 percent of death penalty defendants. By comparison, 67 percent of death penalty defendants were whites, but were 82 percent of the population.

Gov. Inslee imposed a moratorium on capital punishment in 2014, which was followed in 2017 by his request and that of Attorney General Bob Ferguson for legislation that would end the death penalty in the state. A year later, the state Supreme Court unanimously struck down capital punishment, finding that, in the decision by then Chief Justice Mary Fairhurst, it lacked “fundamental fairness.”

“The death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant,” Fairhurst wrote.

Regardless of the debate that is certain to continue as to the death penalty’s utility or its futility, its justice or injustice, a law that is currently deemed unconstitutional should not be allowed to remain on the books as a placeholder, in hopes that future lawmakers and courts might change their minds.

One day they may, and nothing in the bill’s passage precludes lawmakers from considering legislation that would seek to return the death penalty to the RCWs.

But for now, for the benefit of public clarity, laws found unconstitutional — regarding capital punishment, forced sterilization, loyalty oaths and more — should be struck.