Death penalty moratorium a breach of social contract

By Bryan Myrick

On Tuesday afternoon in Olympia, Washington state Gov. Jay Inslee announced that he will unilaterally impose a moratorium on death penalties during his tenure in office.

On legal grounds, Washington state’s constitution and statutes give the governor the power to grant temporary reprieves from capital punishment to death row inmates, often referred to as stays of execution. It does not mean that the next governor could not step into office and remove the reprieves.

On political grounds, Inslee has acted to step around the Legislature, brush aside the courts and substitute his own version of morality for that of jurists who reviewed the facts in each case and came to the conclusion that the just punishment for some horrible crimes was to deprive the guilty person of their life.

Inslee’s decision was reinforced by Washington’s top government lawman, State Attorney General Bob Ferguson, who said, “(T)he governor has the authority to hit the ‘pause’ button for executions in Washington.”

Ferguson’s remote control analogy seems too cute for a grim subject, but it is accurate. Inslee’s single-minded act freezes the process of delivering justice to nine death row inmates and for their 16 victims and the victims’ families. If there is any emotional closure for those families that comes from seeing the evil that was done to their loved ones punished, that resolution is now further from reach.

In announcing his edict, Inslee made clear that he believes giving nine men who were found guilty of brutally and viciously raping and murdering women and children a reprieve from execution is correcting an inequality.

Inslee’ rationalization is a smokescreen of faux pragmatism — citing the reversal rate of convictions, cost of prosecution and length of time to execution — in advance of his main charge in which the governor tilts at philosophical windmills with his suggestion that the lack of deterrent value in capital punishment is also justification for discontinuing its use.

On the first three points, the governor is factually accurate but draws the wrong conclusion. The cost of death penalty cases is high and the legal challenges to make a conviction stick and see a sentence delivered are rigorous, but that is by design. Though Inslee views the process as flawed, in fact it is accomplishing what it should by making it next to impossible for the state to execute an individual before eliminating all shreds of doubt that such action is appropriate in light of their crime.

On his last and probably most heartfelt point, however, Inslee gives the people of Washington a peek into his political philosophy. By claiming that the lack of evidence that the death penalty serves as an effective deterrent (a dubious assertion on its face), he shows us that he has a severely underdeveloped notion of the function a criminal justice system plays in a civil society.

Criminal sentences may be valuable as a deterrent, but for a society that wishes to be based on the rule of law, it is vital that we are able to punish those who transgress our shared morals and values. (We seem to have so few shared morals left, but defining murder as evil is certainly one.) Deterrence is a welcome by-product of our transaction with the convicted criminal if that occurs, but it is the effect the act of punishment has to reinforce legitimacy and cement our social contract that is so critical.

And the social contract of our representative democracy desperately needs mending.

Earlier this year, Inslee himself vowed to enact sweeping carbon tax rules by executive order. President Barack Obama’s use of executive orders to amend key provisions of the enacted Obamacare law without a vote by Congress is under scrutiny from Republicans as well as the not-at-all conservative editors of The Washington Post. In Virginia, Democratic Attorney General Mark Herring has publicly stated he will not defend state law that defines marriage as only legal between a man and a woman. Those are just the examples that leap to mind.

Inslee said that he hoped his unilateral decision would bring Washington state into “a growing national conversation about capital punishment.” But national conversations in a democratic society begin with the people, build consensus and end with government action. Inslee’s autocratic act is a perversion of that process and a continuation of a trend that, regardless of which party seizes the reins of power, must be reversed.

Bryan Myrick is the editor of the NW Daily Marker, where a version of this commentary originally appeared.