There are many reasons to be disappointed by the Washington Supreme Court's opinion affirming Robert Yates' death sentence. After a 5-4 split in Cross where the four justices described Washington's death penalty scheme as broken and beyond repair, in Yates all but one justice somehow found that the death penalty was now working properly. I defy anyone to show me where, when, and how the machinery of death was fixed.
Just as disappointing was the court's discussion about the database used in conducting proportionality review. This database consists of reports--required in every aggravated murder conviction, whether or not death is sought or imposed--designed to enable the court to compare both the crime and the mitigation. Yates argued that the database was insufficient and incomplete, something you'd think a Supreme Court justice would care about--given that a life is at stake.
Here's how the Court summarized the issue: Finally, Yates argues that this court cannot meaningfully engage in the proportionality review mandated in RCW 10.95.130(2)(b) because of the incompleteness and inaccuracy of the trial judge reports. In Yates's view, the defects in the set of reports result in a violation of his due process rights under the Fourteenth Amendment. This argument was punctured in this court's Cross opinion. There, describing the trial judge reports database as "now overwhelmingly complete," the court rejected the claim that the state of the database precluded meaningful proportionality review: "There is an ample amount of detail we can use to compare this case with the others collected, and we have no reason to think that the omitted reports would not be consistent with the completed ones."
The Court's stamp of approval is stunning. Certainly, the Court would be correct if proportionality review focused only on the crime. The reports do describe the crimes of conviction with detail.
However, there is virtually no information about the person--the other half of the equation--in any of the reports. Most reports just leave those sections blank. In other words, we don't know in those other cases if the mitigation that made the difference between life and death was mental illness, childhood trauma, the use of drugs, a desire to plead guilty, or any other factor.
What's going on here? Nationally, two mitigating factors--juvenile status and mental retardation--are now complete bars to the death penalty as part of the 8th Amendment's evolving standards of decency review. The United States Supreme Court reviewed the history of how legislatures, prosecutors, and juries viewed this type of information and determined it was cruel and unusual to execute anyone in either of these two categories--regardless of the facts of the crime.
Doesn't the Washington Supreme Court want to know what prosecutors and jury's in this state view as mitigating? What are they afraid of finding out? Or, is the court saying that it would be too hard to compile this information--as long as the report has some information in it, the report is good enough for government work. That position fails us all.
