Is the death penalty finally dead in Washington state?

The death penalty in Washington state is not quite dead, but it likely will be soon.

The state Supreme Court ruled last year that the death penalty law was unconstitutional because it was “imposed in an arbitrary and racially-based manner.” The high court did not conclude that the death penalty was unconstitutional per se, Latin for “by itself.”

The distinction is critical because it left the door slightly ajar on the death penalty.

“We leave open the possibility that the Legislature may enact a ‘carefully drafted’ statute to impose capital punishment in this state, but it cannot create a system that offends constitutional rights,” Chief Justice Mary Fairhurst wrote in the decision released last October.

Sen. Reuven Carlyle, D-Seattle, wants to make sure the door is slammed shut.

A bill Carlyle is sponsoring at the request of Attorney General Bob Ferguson would delete the death penalty law from the Revised Code of Washington. It also would codify the Supreme Court’s decision and current practice, which is to sentence those convicted of aggravated first-degree murder to life in prison without the possibility of release or parole.

“The recent Supreme Court ruling has made it clear that the current application of our death penalty is not only unconstitutional but by its very nature inherently incapable of being applied in a consistent and fair and equitable way,” said Carlyle, who has worked on the issue for 10 years.

The Attorney General’s Office is urging legislators to pass Carlyle’s bill, saying the death penalty should be eliminated because it is “unenforceable” and not taking action would be disrespectful to the Supreme Court’s ruling.

The death penalty has been effectively dead for several years in Washington state. The last execution was carried out in 2010 when the state used lethal injection to kill Cal Brown for the 1991 murder of a Seattle woman. In 2014, Gov. Jay Inslee declared a moratorium on capital punishment. The Democratic majorities in the House and Senate are opposed to the death penalty.

If Carlyle’s bill becomes law, legislators also wouldn’t be able to amend the death penalty statute still on the books.

That is precisely what Sen. Keith Wagoner, R-Sedro Woolley, is trying to do. Under his bill, a prisoner charged with aggravated first-degree murder could be sentenced to the death penalty.

Wagoner has named his bill after Jayme Biendl, a prison guard at the Monroe Correctional Institution who was strangled in 2011 by inmate Byron Scherf, who was serving a sentence of life in prison without possibility of release or parole under the state’s “three strikes, you’re out” law.

Two of those strikes occurred in Pierce County: a guilty plea in 1978 to attacking a 16-year-old girl with a knife and a 1981 guilty plea to first-degree rape and first-degree assault after he abducted a waitress at knife point, bound her, raped her, doused the room she was in with gasoline and set it on fire. The third strike was a conviction of abducting and raping a Spokane-area real estate agent in 1995.

Scherf received the death penalty for Biendle’s murder. A month after the Supreme Court’s decision last year striking down the death penalty, justices remanded his case back to Superior Court for the imposition of a sentence of life in prison without the possibility of release or parole.

“I believe justice was not served in this case,” Wagoner said.

Wagoner acknowledged that his bill would not be retroactive for Scherf but said it would provide the punishment of death if an inmate murders a guard.

“Right now, I don’t know what they do — give you the cold pork chop or the hard pillow after that?” Wagoner asked.

That question arose recently during a meeting of the Senate Law and Justice Committee, which heard testimony on Carlyle’s bill to eliminate the death penalty.

Richard “Dick” Morgan, a former Secretary of the state Department of Corrections, said there is a “punishment that exceeds normal imprisonment” and that is solitary confinement. He referred to that punishment as “profound” because the inmate has almost “no human contact with another person.”

Scherf is an inmate at the Washington State Penitentiary in Walla Walla. He was on death row there and now is in solitary confinement, in his cell 23 hours a day, a prison spokeswoman said. The other time is for meals, exercise and a shower.

Sen. Jamie Pedersen, D-Seattle, is chairman of the Senate Law and Justice Committee. He said Wagoner’s bill won’t get a hearing.

“It’s time for us to be finished with the death penalty,” Pedersen said.

This story was originally published February 8, 2019 at 3:24 PM.