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AGO 1976 No. 15 - August 05, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

CRIMES ‑- CAPITAL PUNISHMENT ‑- CONSTITUTIONALITY OF DEATH PENALTY ‑- INITIATIVE AND REFERENDUM ‑- ENACTMENT OF NEW DEATH PENALTY LAW

(1) Recent decisions by the United States Supreme Court holding mandatory death penalty laws to be unconstitutional have rendered RCW 9A.32.046, enacted pursuant to Initiative No. 316, constitutionally unenforceable; however, in line with other supreme court decisions involving death penalty laws a constitutionally valid death penalty statute may still be enacted in accordance with guidelines set forth in those decisions.

(2) Because RCW 9A.32.046 was enacted as a part of Initiative No. 316 at the 1975 state general election, that statute may not be repealed by the legislature for a period of two years following its enactment and it may only be amended during such period by a two-thirds majority vote of the members of both houses of the legislature; however, this existing state death penalty statute may be amended or repealed at any time pursuant to an initiative or referendum measure approved by the voters.

(3) It is possible that legislation establishing a new, constitutionally valid, death penalty for the state of Washington could be enacted by the legislature by a simple majority vote, even during the immediate two-year period following the passage of Initiative No. 316, if the new law is not drafted as either an amendment or repeal of RCW 9A.32.046.

                                                              - - - - - - - - - - - - -

                                                                  August 5, 1976

Honorable Earl F. Tilly
State Representative, 12th District
1509 Jefferson
Wenatchee, Washington 98801

                                                                                                                 Cite as:  AGO 1976 No. 15

Dear Sir:

            In a line of decisions handed down on July 2, 1976, the United States Supreme Court upheld the constitutionality  [[Orig. Op. Page 2]] of statutes providing for imposition of the death penalty for the crime of murder (and in the case of Georgia, certain other crimes) as enacted by the legislatures of the states of Georgia, Florida and Texas.  See,Gregg v. Georgia,     U.S.    , 44 L.W. 5230; Proffitt v. Florida,     U.S.    , 44 L.W. 5256; and Jurek v. Texas,     U.S.    , 44 L.W. 5262.  At the same time, however, the Supreme Court invalidated, as a form of "cruel and unusual punishment" prohibited by the Eighth Amendment to the U.S. Constitution, other death penalty laws which had been enacted in the states of North Carolina and Louisiana.  Woodson v. North Carolina,     U.S.   , 44 L.W. 5267; and Roberts v. Louisiana,     U.S.    , 44 L.W. 5281.  As the prime sponsor of the Washington death penalty law, chapter 9, Laws of 1975-76, 2nd Ex. Sess. (Initiative No. 316), you have, therefore, requested our opinion regarding the impact of these decisions upon our own law and, in addition, you have posed several questions pertaining to the procedures to be followed in amending our law if it is deemed by us no longer to be constitutionally enforceable.

            We will set forth your specific questions, and our answers thereto, within the body of this opinion.

                                                                     ANALYSIS

            I.

            Introduction:

            Capital punishment, or the death penalty, has in recent years become the subject of considerable activity both within the halls of state legislatures and in the courts.  Although earlier attempts to have this form of criminal punishment declared unconstitutional by the courts had failed, a sharply divided United States Supreme Court, some four years ago in Furman v. Georgia, 408 U.S. 238, 33 L. ed. [[L.Ed.]]2d 346, 92 S.Ct. 2726 (1972), struck down a Georgia death penalty law on the ground that this law was in violation of the prohibition against "cruel and unusual punishment" contained in the Eighth Amendment to the U.S. Constitution.  Thereafter, state lawmakers throughout the nation reacted by changing the death penalty statutes of their respective states in order, if possible, to remove the features of those statutes to which the Supreme Court had apparently objected in theFurman case.  This course of legislative response to the Court's ruling, in turn, culminated in the five cases decided on July 2, 1976,  [[Orig. Op. Page 3]] to which you have referred in your request.  The basic question here presented concerns the impact of those cases upon the particular response to theFurman ruling which was made by the voters of our own state through their passage of Initiative No. 316 at the November, 1975, state general election.

            Under the Georgia statute which was struck down in the Furman case, the jury involved in a murder or other criminal trial in which the death penalty could be imposed was vested with unrestricted discretionary authority whereby it was permitted to determine in each case, in accordance with whatever criteria might seem significant to the particular jury, whether or not the defendant (upon being convicted) should be sentenced to death or, instead, to a term of imprisonment.  Two members of the Supreme Court, Justices Brennan and Marshall, expressed the view that this statute was unconstitutional under the Eighth Amendment, supra, because the death penalty, no matter how or for what crime it is imposed, constitutes cruel and unusual punishment in violation of that portion of the federal Bill of Rights.  Three other members of the court, Justices Douglas, Stewart and White, wrote opinions in which, instead, they merely held the procedural aspects of the Georgia law to be unconstitutional because, basically, of the unquestionably irrelevant factors which a jury was allowed to take into consideration in rendering its decision as to whether a given criminal defendant should live or die.  This constituted "cruel and unusual" punishment, in the minds of these three justices, because of the arbitrary or happenstance results which could flow from the statutory system involved.  As was succinctly explained in the concurring opinion of Justice Stewart, 408 U.S. 309-10:

            "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.  For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . ."

            Notwithstanding this objection to the Georgia law, however, the four remaining members of the 1972 Supreme Court which ruled in the Furman case ‑ Chief Justice Burger and Justices Blackmun, Powell and Rehnquist ‑ voted to sustain the death  [[Orig. Op. Page 4]] penalty even when imposed in the manner then provided for by that law.  In essence the position of those four dissenters was that the Eighth Amendment is not violated by such a law because that constitutional provision in no way speaks ". . . to the power of legislatures to confer sentencing discretion on juries. . ."  (408 U.S. 238.)

            Since, however, a majority of the Supreme Court thought otherwise, the result of theFurman case was that at least the "unlimited discretion" approach which was a part of the then existing Georgia death penalty statute ‑ as well as those of most other states as they then existed ‑ became constitutionally unenforceable.  In our own state this was expressly held to be so by the Washington supreme court, with respect to the death penalty provisions of RCW 9.48.030, in September of 1972, in the case ofState v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972).  But because only two members of the Furman majority looked upon the death penalty as being unconstitutional perse, two other possible routes to a constitutionally defensible death penalty law appeared still to be available.  One such route, seemingly, was that of totally eliminating any discretionary function in the court or jury and, instead, substituting an automatic, mandatory, death penalty for certain specified degrees of murder or other crimes which had traditionally been characterized as capital offenses.  Conversely, the other possible route to a constitutionally valid death penalty law was to retain the basic concept of a discretionary penalty while attempting to remove the constitutional infirmities of unrestricted discretion by establishing mandatory standards and criteria to be applied by the court or jury in each case ‑ standards and criteria which would be relevant to the issue of life or death for those convicted of the serious crimes for which the death penalty might be imposed.

            Among the states which chose to take the latter approach were Georgia itself, along with Florida and Texas.  On the other hand the states which responded to the Furman decision by enacting mandatory death penalty statutes included North Carolina and Louisiana ‑ and, as we will see in a moment, the state of Washington.  Conceivably, in view of the diversity of opinions expressed by the different justices in theFurman case, either or both of these responses could have been expected to pass constitutional muster when tested;  [[Orig. Op. Page 5]] and in fact, as things turned out, both types of death penalty laws were found to be valid by three of the four members of the Court who had dissented in Furman.  Those three were Chief Justice Burger and Justices Blackmun and Rehnquist ‑ joined by Justice White who had been among the justices ruling against the "unlimited discretion" approach which the majority had held to be unconstitutional in that case.  The remaining five members of the Court,1/ however, ultimately drew a distinction between (1) the mandatory imposition of a death penalty in all capital cases and (2) the "guided discretion" system represented by the new Georgia laws and those of Florida and Texas.  Thus, while the latter were upheld by a seven to two majority of the Supreme Court inGregg v. Georgia, Proffitt v. Florida and Jurek v. Texas, supra, the former was held to be unconstitutional by a five to four majority inWoodson v. North Carolina and Roberts v. Louisiana, supra.2/

             The basic problem with the "unlimited discretion" approach, as we have seen, is that it was found to produce arbitrary and capricious results.  Juries could decide whether a convicted criminal was to live or die on the basis of suchirrelevant factors as the color of his skin, or his or her sex or religion or even mere physical appearance.  The problem with a mandatory death penalty, by the same token, is (according to those who ruled against it in Woodson andRoberts) that such a law is also arbitrary in that itrequires the execution of all persons convicted of a given capital offense ‑ regardless of such arguably relevant factors as their past criminal records, the likelihood of future misconduct, or various other mitigating circumstances involved in each particular case.  However, the "limited discretion" approach which was upheld by the Court in theGregg,Proffitt and Jurek cases was found to be acceptable (a) because the death penalty is still not unconstitutional, perse, at least for those crimes such as murder for which it has traditionally been imposed3/ and (b) because the procedural safeguards of this approach appeared reasonably calculated to insure a rational imposition of the penalty.           [[Orig. Op. Page 6]]

            II.

            Questions Presented:

            With this introductory resume of the current constitutional status of the death penalty in mind, we turn, now, to your specific questions.  First you have asked:

            "Has our latest statute or portions thereof, the provisions of which were contained in Initiative 316, passed by the voters in November, 1975, been invalidated by the recent U.S. Supreme Court decisions?"

            Before we respond directly to this question two further preliminary observations are in order.  First, as was also true several years ago when the Supreme Court first ruled on the constitutionality of state laws regulating abortions,4/ the Court's decisions did not directly pass upon the provisions of our own state abortion law because that law (RCW 9.02.070) was not actually before the tribunal.  Instead, those decisions involved statutes in two other states, Georgia and Texas.  Nevertheless, as in the instant case it was, in our judgment, clear as a matter of law that the rulings in question had rendered portions of our own law henceforth "constitutionally unenforceable" in the sense which we explained in the following excerpt from AGO 1973 No. 7 [[to Alan Bluechel, State Representative on February 14, 1973]](copy enclosed) ‑ written shortly after those rulings were rendered:

            "We now come to the essence of your question:  To what extent will the supreme court's decisions in Roe v. Wade and Doe v. Bolton, supra, affect the future enforceability of our existing statutes dealing with abortions.

            "Purely from a standpoint of form, of course, all of the provisions of these statutes will remain in our criminal code in the manner in which they now appear until they are either amended or repealed through the legislative process.  Moreover, to the extent that they are not in clear conflict with the supreme court's rulings, these statutes remain entitled to an over-all presumption of  [[Orig. Op. Page 7]] constitutionality until held to be otherwise by a court of competent jurisdiction ‑ both as a matter of office policy and as a matter of law.  In the case of such conflicts asdo exist between them and the supreme court's decisions, however, future enforcement will unquestionably be effectively precluded by these decisions for the obvious reason that in any prosecution brought to enforce a requirement of our statutes which conflicts with the supreme court's rulings,supra, the person or persons charged with a violation of these statutes will be able to invoke the federal constitution, as now interpreted by the supreme court, as a defense.  Accord, so much of Article VI of the United States Constitution as provides that:

            "'This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.'

            "We will, therefore, couch our ensuing conclusions in this light ‑ i.e., enforceability rather than constitutionality, perse.  . . ."

            Likewise, in answering your first question as it relates to the impact of the Supreme Court's latest decisions regarding the death penalty upon what is now RCW 9A.32.046,infra, we will here also speak of the currentenforceability of that law rather than of itsconstitutionality,perse.

            Secondly, as we have noted earlier it is true that the new death penalty law, which was formulated largely under your sponsorship after the earlier Washington law (RCW 9.48.030)  [[Orig. Op. Page 8]] was declared unconstitutional in State v. Baker, supra,5/ originated as Initiative No. 316 and, as such, was approved by the voters at the November, 1975, state general election.6/   The fact that this law was thus enacted by the people rather than the legislature, however, must be viewed as being of no legal significance in terms of its present constitutional enforceability because it is now a well-established principle that the power of the people to pass a law by the initiative process is no greater than that of the legislature, as such, and is subject to all of the same constitutional restrictions or limitations which pertain to an act of the legislature.  See, e.g.,Bare v. Borton, 84 Wn.2d 380, 526 P.2d 379 (1974).

            Having so explained these two points we must now answer your first question essentially in the affirmative.  Because it is a death penalty law of the same basic type as those held to be unconstitutional inWoodson v. North Carolina and Roberts v. Louisiana, supra,7/ so much of our new law as  [[Orig. Op. Page 9]] provides for the automatic, mandatory, imposition of a death sentence for all persons convicted of aggravated murder in the first degree8/ is, in our opinion, now constitutionally unenforceable.  By this we mean, specifically, that portion of Initiative No. 316 which is now RCW 9A.32.046 and reads, in full, as follows:

             [[Orig. Op. Page 10]]

            "A person found guilty of aggravated murder in the first degree as defined in RCW 9A.32.045, shall be punished by the mandatory sentence of death.  Once a person is found guilty of aggravated murder in the first degree, as defined in RCW 9A.32.045, neither the court nor the jury shall have the discretion to suspend or defer the imposition or execution of the sentence of death.  Such sentence shall be automatic upon any conviction of aggravated first degree murder.  The death sentence shall take place at the state penitentiary under the direction of and pursuant to arrangements made by the superintendent thereof:  Provided, That the time of such execution shall be set by the trial judge at the time of imposing sentence and as a part thereof."

            This statute, like those involved in the Woodson and Roberts cases, deprives the court or jury, as the case may be, of any discretion to impose a lesser penalty without regard to any mitigating circumstances which may be present in a given case.  Or, as we expressed the point during our introductory discussion above, the Washington law, like those of North Carolina and Louisiana, ". . . requires the execution of all persons convicted . . . [of aggravated murder in the first degree] . . . regardless of such arguably relevant factors as their past criminal records, the likelihood of future misconduct, or various other mitigating circumstances involved in each particular case."9/

             [[Orig. Op. Page 11]]

            Question (2):

            By your next question you have asked:

            "Can we have a capital punishment law that is constitutional in Washington State?"

            This question, of course, assumes the foregoing response to your first question; i.e., that the present provisions of RCW 9A.32.046, supra, have become constitutionally unenforceable because of the Supreme Court's invalidation of similar mandatory death penalty statutes inWoodson v. North Carolina and Roberts v. Louisiana, supra.  But at the same time the Court's 7-2 ruling in favor of the constitutionality of what we have above referred to as "limited discretion" death penalty laws inGregg v. Georgia,Proffitt v. Florida and Jurek v. Texas, supra, makes it equally clear that a constitutionally valid statute may be fashioned for our own state as well.  As explained by Justice Stewart, writing for the Court inGregg:

            "In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing  [[Orig. Op. Page 12]] authority is given adequate information and guidance.  As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

            "We do not intend to suggest that only the above‑described procedures would be permissible underFurman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns ofFurman, for each distinct system must be examined on an individual basis.  Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meetingFurman's constitutional concerns."  (44 L.W. at 5242.)

            Therefore, our direct answer to your second inquiry, as above set forth, is also in the affirmative.  A law similar to those which were found to be valid in these last three cases would, if enacted by the Washington legislature (or the people through the initiative process), be constitutionally defensible.10/

             Although certain differences exist between the three death penalty laws which were thus upheld,11/ the basic element which they all have in common is that of a bifurcated trial whereby the accused person is first tried to determine his guilt or innocence of the crime with which he has been charged.  At this initial trial only such evidence is admissible as is relevant to that single question.  Then, if the  [[Orig. Op. Page 13]] accused is found guilty of a crime for which the death penalty may be imposed, a second hearing or trial is held for the purpose of determining whether, in fact, it should be.  During this phase the jury (or court if the case was tried without a jury) is required to consider various specified aggravating and/or mitigating circumstances ‑ including evidence which would not have been admissible under ordinary standards of relevancy during the "guilt or innocence" phase of the trial.  Then, the question of punishment is to be decided on the basis of specified legal standards in accordance with the findings made at this second stage of the proceedings.  Finally, at least in the case of the Georgia and Florida laws, any death penalty resulting from the trial is to be reviewed, automatically, by a higher court not only for the purpose of insuring that the proceedings below were properly conducted under the standards set forth in the law but that the death penalty imposed is consistent with other sentences imposed in other trials under similar circumstances.12/

             Questions (3) and (4):

            Your next two questions, which we will consider together, read as follows:

            "Would changes to the invalidated statute to bring it into conformance with the U.S. Supreme Court decisions require a two-thirds vote of the Legislature if the changes were considered during the regular session of the 45th Legislature, convening in January, 1977?

            "Could the Legislature repeal the provisions of Initiative 316 and substitute a new law?"

            These two questions stem from the above noted fact that our current death penalty statute (RCW 9A.32.046) originated as a part of an initiative to the people under Article II, § 1 (Amendment 7) of the state constitution.  Thus, it is presumably  [[Orig. Op. Page 14]] now subject to so much of Article II, § 41 (Amendment 26) of the constitution as provides that:

            ". . .  No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment:  Provided, That any such act, law or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution, and no amendatory law adopted in accordance with this provision shall be subject to referendum.  But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon.  These provisions supersede the provisions of subsection (c) of section 1 of this article as amended by the seventh amendment to the Constitution of this state."

            We can conceive of no basis for concluding that the mandatory death penalty portion of Initiative No. 316 is in any way exempt from the provisions of this section of the state constitution merely because it has been rendered constitutionally unenforceable by reason of the Supreme Court's decisions in theWoodson andRoberts cases, with regard to the similar death penalty laws of North Carolina and Louisiana.  Therefore, it may not now be repealed by the legislature ‑ i.e., until November 5, 1977, or thereafter ‑ and it may not be amended by the legislature until that time except by ". . . a vote of two-thirds of all of the members elected to each house. . . ."

            We note also, however, the concluding sentence of Article II, § 41 (Amendment 26),supra, which, alternatively, permits an act approved by the voters to be thereafter amended or repealed at any time ". . . at any general regular or special election by direct vote of the people thereon. . . ."  Accordingly, it would be possible for this or any other measure approved by the voters at the November 5, 1975, general election to be amended (or even repealed) by the affirmative action of less than a two-thirds majority of the members of each house of the  [[Orig. Op. Page 15]] legislature approving a referendum bill submitted to the voters in the manner contemplated by subsection (b) of Article II, § 1 (Amendment 7) of the constitution.13/

             Questions (5) and (6):

            Your final two questions also relate to the procedures which could be followed by the legislature in the enactment of a constitutionally valid death penalty law in accordance withGregg v. Georgia, Proffitt v. Florida and Jurek v. Texas,supra.  They are as follows:

            "5) Could the Legislature adopt a new capital punishment law without repealing the provisions of Initiative 316 with instructions that the new law be the applicable statute in cases involving the specified crimes?

            "6) If your answer to question 5 is in the affirmative, could the new law be adopted by a constitutional majority of the Legislature rather than two-thirds?"

            The important point to be borne in mind with respect to these questions is that the death penalty provided for by Initiative No. 316 (i.e., RCW 9A.32.046) is, by its own terms, only applicable to the crime of aggravated murder in the first degree as defined therein.  See, RCW 9A.32.045,supra, codifying § 1 of the initiative.  Other sections of the new state criminal code, however, define first degree murder as a separate and, in effect, a lesser included offense and fix the penalty for that crime as life imprisonment.  We have reference to RCW 9A.32.030 and 9A.32.040, both of which originated with the new code itself, chapter 260, Laws of  [[Orig. Op. Page 16]] 1975, 1st Ex. Sess., rather than as a part of Initiative No. 316.

            Most certainly, therefore (in answer to your fifth question), the legislature could ‑ by appropriately amending either or both of these sections of the new code ‑ adopt a new capital punishment law for the crime of first degree murder (or other crimes as well by the same process) without either repealing or expressly amending any of the code sections which were added by the initiative.  In effect, the defined crime in the initiative of aggravated murder in the first degree (RCW 9A.32.045) and its accompanying mandatory death penalty (RCW 9A.32.046) would simply be disregarded and rendered obsolete by means of this approach.

            Logically, of course, this should also mean (in answer to your sixth and final question) that ". . . the new law could be adopted by a constitutional majority of the legislature rather than two-thirds. . ." even though enacted within the two-year period during which Article II, § 41 (Amendment 26), supra, will remain applicable to the provisions of Initiative No. 316 itself.  At least we know of no cases in which a court, in an analogous situation, has yet ruled otherwise.  This, however, does not mean that the proponents of a revised new death penalty law should necessarily feel content if they are able to persuade merely a simple majority of the members of the legislature to vote for a bill fashioned to avoid that constitutional provision.

            In the first place, of course, more than a simple majority would be necessary to override a gubernatorial veto if that should occur.  Accord, the provisions of Article III, § 12 of our constitution.  But in addition, even if the governor were to approve of the bill the validity of any new death penalty law would presumably be litigated in the courts in any event ‑ probably by the first person to be sentenced thereunder.  At that time this issue would no doubt then be raised as a part of such litigation if the law in question were to have been passed by the legislature by less than a two-thirds majority during the first two years following the passage of the initiative.  Therefore, while we believe the correct answer to your final question to be in the affirmative we would most certainly caution the proponents of any new death penalty legislation to seek the approval of such a  [[Orig. Op. Page 17]] greater majority if possible, particularly if the new law includes a consideration of aggravating factors paralleling the language of Initiative No. 316, in lieu of a different list of aggravating circumstances or being a statute which allows resort to mitigating circumstances only.  Or, in the alternative, those proponents could accomplish the same objective by having the bill referred to the people for their approval instead, in accordance with the second part of our answer to question (5), above.

            This completes our consideration of your several questions regarding the Washington death penalty law as it has been impacted by the U.S. Supreme Court's recent decisions.  We trust that the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Including Justice Powell who had been among the dissenters in Furman.

2/See, also, Fowler v. North Carolina,    U.S.    , 44 L.W. 3761 (July 6, 1976);Thompson v. North Carolina,     U.S.   , 44 L.W. 3761 (July 6, 1976); andWilliams and Justus v. Oklahoma,     U.S.   , 44 L.W. 3761 (July 6, 1976).

3/Justices Brennan and Marshall dissenting.

4/See, Roe v. Wade, 410 U.S. 113, 35 L. ed. [[L.Ed.]]2d 147, 93 S.Ct. 705 (1973) andDoe v. Bolton, 410 U.S. 179, 35 L. ed. [[L.Ed.]]2d 201, 93 S.Ct. 739 (1973).

5/Accord, Furman v. Georgia, supra.

6/See, Wash. Const., Art. II, § 1 (Amendment 7); however, because the initiative was framed as an amendment to the new state criminal code it did not actually become operative until July 1, 1976 ‑ as explained in AGO 1976 No. 4 [[to Earl F. Tilly, State Representative on January 22, 1976]].

7/In Roberts the court specifically noted that the Louisiana statute, like Initiative No. 316, limited the category of crimes covered to certain aggravated offenses ‑ in contrast to the North Carolina law which imposed the death penalty for any willful, deliberate or premeditated homicide and any felony murder.  The court, however, ignored the distinction, saying:

            "That Louisiana has adopted a different and somewhat narrower definition of first-degree murder than North Carolina is not of controlling constitutional significance.  The history of mandatory death penalty statutes indicates a firm societal view that limiting the scope of capital murder is an inadequate response to the harshness and inflexibility of a mandatory death sentence statute. . . ."Roberts v. Louisiana, 44 L.W. at 5283.

8/Defined in RCW 9A.32.045 as follows:

            "A person is guilty of aggravated murder in the first degree when he commits murder in the first degree as defined in RCW 9A.32.030 under or accompanied by any of the following circumstances:

            "(1) The victim was a law enforcement officer or fire fighter and was performing his or her official duties at the time of the killing.

            "(2) At the time of the act resulting in the death, the defendant was serving a term of imprisonment in a state correctional institution.

            "(3) The defendant committed the murder pursuant to an agreement that he receive money or other thing of value for committing the murder.

            "(4) The defendant had solicited another to commit the murder and had paid or agreed to pay such person money or other thing of value for committing the murder.

            "(5) The defendant committed the murder with intent to conceal the commission of a crime, or to protect or conceal the identity of any person committing the same, or with intent to delay, hinder or obstruct the administration of justice by preventing any person from being a witness or producing evidence in any investigation or proceeding authorized by law or by influencing any person's official action as a juror.

            "(6) There was more than one victim and the said murders were part of a common scheme or plan, or the result of a single act of the defendant.

            "(7) The defendant committed the murder in the course of or in furtherance of the crime of rape or kidnaping or in immediate flight therefrom."

9/Note, however, in connection with the answer to your first question, the following provisions of RCW 9A.32.047 (codifying § 3 of Initiative No. 316):

            "In the event that the governor commutes a death sentence or in the event that the death penalty is held to be unconstitutional by the United States supreme court or the supreme court of the state of Washington in any of the circumstances specified in RCW 9A.32.045, the penalty for aggravated murder in the first degree in those circumstances shall be imprisonment in the state penitentiary for life.  A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer, and the board of prison terms and paroles shall never parole a prisoner or reduce the period of confinement nor release the convicted person as a result of any automatic good time calculation nor shall the department of social and health services permit the convicted person to participate in any work release or furlough program."

10/We understand, in so advising you, that a stay order has been entered by Justice Powell with regard to actual implementation of the Gregg, Proffitt and Jurek rulings in connection with a petition for rehearing.  If, as a result of that petition there is later any change in the views of the Court regarding the "limited discretion" types of death penalty law we will, of course, promptly advise you.

11/Compare, Ga. Code Ann. §§ 27-2503, 27-2534.1, 27-2514 and 26-3102 (Sup. 1975); Fla.Stat.Ann. § 921.141 (Sup. 1976-1977); and Texas Code of Crim. Proc., Art. 37.071 (Sup. 1975-1976).

12/Also of note in connection with this segment of your opinion request is a similar section of the Model Penal Code (Proposed Official Draft) which was prepared in 1962 by the American Law Institute.  According to the Supreme Court's opinion in Proffitt v. Florida,supra, the Florida statute which was there upheld was "largely patterned" after § 210.6 of that code.  Therefore, we are appending a copy of this section of the Model Code to our opinion for your immediate reference.

13/This subsection reads as follows:

            "The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted.  Six per centum, but in no case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition."

            APPENDIX

            MODEL PENAL CODE ‑ DEATH PENALTY PROVISION

            Section 210.6.  Sentence of Death for Murder; Further Proceedings to Determine Sentence.

            (1)Death Sentence Excluded.  When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that:

            (a) none of the aggravating circumstances enumerated in Subsection (3) of this Section was established by the evidence at the trial or will be established if further proceedings are initiated under Subsection (2) of this Section; or

            (b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or

            (c) the defendant, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or

            (d) the defendant was under 18 years of age at the time of the commission of the crime; or

            (e) the defendant's physical or mental condition calls for leniency; or

            (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt.

            (2)Determination by Court or by Court and Jury.  Unless the Court imposes sentence under Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death.  The proceeding shall be conducted before the Court alone if the defendant was convicted by a Court sitting without a jury or upon his plea of guilty or if the prosecuting attorney and the defendant waive a jury with respect to sentence.  In other cases it shall be conducted before the Court sitting with the jury which determined the defendant's guilt or, if the Court for good cause shown discharges that jury, with a new jury empanelled for the purpose.

            In the proceeding, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section.  Any such evidence which the Court deems to have probative force may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant's counsel is accorded a fair opportunity to rebut any hearsay statements.  The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

            The determination whether sentence of death shall be imposed shall be in the discretion of the Court, except that when the proceeding is conducted before the Court sitting with a jury, the Court shall not impose sentence of death unless it submits to the jury the issue whether the defendant should be sentenced to death or to imprisonment and the jury returns a verdict that the sentence should be death.  If the jury is unable to reach a unanimous verdict, the Court shall dismiss the jury and impose sentence for a felony of the first degree.

            The Court, in exercising its discretion as to sentence, and the jury, in determining upon its verdict, shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it deems relevant, but it shall not impose or recommend sentence of death unless it finds one of the aggravating circumstances enumerated in Subsection (3) and further finds that there are no mitigating circumstances sufficiently substantial to call for leniency.  When the issue is submitted to the jury, the Court shall so instruct and also shall inform the jury of the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death.

            Alternative formulation of Subsection (2):

            (2)Determination by Court.  Unless the court imposes sentence under Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death.  In the proceeding, the Court, in accordance with Section 7.07, shall consider the report of the pre‑sentence investigation and, if a psychiatric examination has been ordered, the report of such examination.  In addition, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section.  Any such evidence which the Court deems to have probative force may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant's counsel is accorded a fair opportunity to rebut any hearsay statements.  The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

            The determination whether sentence of death shall be imposed shall be in the discretion of the Court.  In exercising such discretion, the Court shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it deems relevant but shall not impose sentence of death unless it finds one of the aggravating circumstances enumerated in Subsection (3) and further finds that there are no mitigating circumstances sufficiently substantial to call for leniency.

            (3)Aggravating Circumstances.

            (a) The murder was committed by a convict under sentence of imprisonment.

            (b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person.

            (c) At the time the murder was committed the defendant also committed another murder.

            (d) The defendant knowingly created a great risk of death to many persons.

            (e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

            (f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody.

            (g) The murder was committed for pecuniary gain.

            (h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.

            (4)Mitigating Circumstances.

            (a) The defendant has no significant history of prior criminal activity.

            (b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.

            (c) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

            (d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.

            (e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.

            (f) The defendant acted under duress or under the domination of another person.

            (g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to  the requirements of law was impaired as a result of mental disease or defect or intoxication.

            (h) The youth of the defendant at the time of the crime.

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