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AGO 1976 No. 4 - Jan 22 1976
Attorney General Slade Gorton


The provisions of Initiative No. 316, defining the crime of aggravated murder in the first degree and providing for a mandatory sentence of death with respect to that degree of murder, do not apply to offenses committed prior to July 1, 1976.

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January 22, 1976

HonorableEarl F. Tilly
State Representative, 12th District
Legislative Building
Olympia, Washington 98504
                                                                                                               Cite as:
AGO 1976 No. 4

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Do the provisions of Initiative No. 316, defining the crime of aggravated murder in the first degree and providing for a mandatory sentence of death with respect to that degree of murder, apply to offenses committed prior to July 1, 1976?

            We answer the foregoing question in the negative for the reasons set forth in our analysis.


            Initiative No. 316 was approved by the voters of our state at the recent, November 4, 1975, general election. Accord, Wash. Const., Art. II, § 1 (Amendment 7). In substance, this initiative established an additional degree of murder, called "aggravated murder in the first degree," and then provided for the mandatory imposition of the death penalty in the case of any conviction of this crime.[1]

            [Orig. Op. Page 2]

            In the words of § 1 of the initiative, a person will be guilty of this offense if he commits the crime of murder in the first degree ". . . as defined in RCW 9A.32.030 . . ." under any of the following circumstances:

            (1) When the victim is a law enforcement officer or fire fighter performing his official duties;

            (2) When the defendant is serving a term of imprisonment in a state institution at the time of the act resulting in the death sentence;

            (3) When the defendant committed or solicited another person to commit the murder for pay;

            (4) When the murder was committed with intent to conceal the commission of another crime or the identity of any person committing that crime, or when the murder was committed with intent to obstruct justice;

            (5) When there is more than one victim and the murders result from a single act or were part of a common scheme or plan;

            (6) When the defendant committed the murder in furtherance of the crime of rape or kidnapping or in immediate flight from either of those crimes.

            RCW 9A.32.030, in turn, codifies the statutory elements of first degree murder which were spelled out in § 9A.32.030, chapter 260, Laws of 1975, 1st Ex. Sess. ‑ the new "Washington Criminal Code" which was passed in June of 1975 by the state legislature. This section of the new criminal code provides that:

            "(1) A person is guilty of murder in the first degree when:

            "(a) With a premeditated intent to cause the death of another person, he causes the death of such person or of a third person; or

            "(b) Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or

            [Orig. Op. Page 3]

            "(c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnaping, in the first or second degree, and, in the course of an in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

            "(i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

            "(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

            "(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

            "(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

            ". . ."

            Under the provisions of Article II, § 1 (Amendment 7), supra, laws such as Initiative No. 316 which have been enacted through the initiative process are ordinarily to be ". . . in operation on and after the thirtieth day after the election at which . . . [they are] approved . . ." Where, however, a later effective date is provided for by the particular measure involved, such rules of future conduct as are thus prescribed [Orig. Op. Page 4] by the initiative will not become enforceable until that later date arrives. See,Gottstein v. Lister, 88 Wash. 462, 511, 153 Pac. 595(1915); accord, AGO 1973 No. 12 , copy enclosed, dealing with the respective effective date of Initiative No. 276 and portions of Referendum Bill No. 25.[2]

            The relevance of this concept with respect to Initiative No. 316 stems from the interrelationship between this law, as approved by the voters last November, and the new state criminal code which was passed by the legislature earlier in 1975. The first section of chapter 260, supra, by which that code (now Title 9A RCW) was enacted, reads as follows:

            "(1) This title shall be known and may be cited as the Washington Criminal Code and shall become effective on July 1, 1976.

            "(2) The provisions of this title shall apply to any offense committed on or after July 1, 1976, which is defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires, and shall also apply to any defense to prosecution for such an offense.

            "(3) The provisions of this title do not apply to or govern the construction of and punishment for any offense committed prior to July 1, 1976, or to the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this title had not been enacted.

            [Orig. Op. Page 5]

            "(4) If any provision of this title, or its application to any person or circumstance is held invalid, the remainder of the title, or the application of the provision to other persons or circumstances is not affected, and to this end the provisions of this title are declared to be severable.

            "(5) Chapter, section, and subsection captions are for organizational purposes only and shall not be construed as part of this title." (RCW 9A.04.010.)

            Bearing this statutory timetable in mind the first point to be noted is that Initiative No. 316 is, by its own terms, an addition to the new criminal code ‑ as evidenced by the following introductory language appearing at the beginning of each of its first four sections:

            ". . . There is added to chapter 9A.32 RCW a new section to read as follows:"

            Chapter 9A.32 RCW contains the portions of the new criminal code which pertain to homicide. Secondly, as earlier noted, § 1 of the initiative expressly relies upon and incorporates thenew definition of first degree murder which is contained in RCW 9A.32.030, supra.  In order for a person to be guilty of "aggravated murder in the first degree" he must, in the process, have committed a murder in the first degree within the meaning of that section of the revised criminal code.

            In short, Initiative No. 316, by its express terms, is now a part of "this title" to which the statutory timetable contained in RCW 9A.04.010,supra, applies. It is dependent upon the newly defined crime of first degree murder (as set forth in RCW 9A.32.030) for its operative effect ‑ insofar as the new crime of "aggravated murder in the first degree" is concerned. Therefore, although the initiative is now a law in the same sense as the new criminal code (chapter 260,supra) itself is, its operative effect is deferred by the same statutory language as governs the remainder of that code ‑ of which the initiative is now an integral part. It thus necessarily follows that in accordance with RCW 9A.40.010(12), the initiative is, likewise, inapplicable to any offenses committed prior to the date specified therein ‑ July 1, 1976.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

    [1]Except that, in recognition of possible constitutional objections to its death penalty provisions, § 3 of the initiative provided that if the death penalty should be found to be unconstitutional a mandatory sentence of life imprisonment should be deemed to be substituted for that penalty.

    [2]Section 49 of Initiative No. 276 (approved by the voters on November 7, 1972) specified a deferred effective date of January 1, 1973, for the entire initiative while § 25 of Referendum Bill No. 25 (also approved at that same election) stated that §§ 9 through 25 thereof should not take effect until January 30, 1973, if passed by a vote of the people.