Standardless Death Penalty Policies : The Unconstitutionality of the Washington Capital Punishment Statutory Scheme

Abstract

The statutory scheme for capital punishment in Washington State' 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."' But the legislature has not said what constitutes a miti-