The Juvenile Death Penalty in Washington: A State Constitutional Analysis

The Juvenile Death Penalty in Washington: A State Constitutional Analysis Bruce L. Brown* On February 6, 1990, a Kitsap county jury found Michael Monroe Furman guilty of aggravated first degree murder.1 On March 6, 1990, the trial court sentenced Furman to death.2 At the time of the murder, Furman was seventeen years and ten months old.3 He was, therefore, a juvenile as defined by Washington statute.4 Furman is the first juvenile to be sentenced to death in Washington since 1932, and his sentence is unique among all of the juvenile murder cases filed under the current statute.5 Furman's appeal is currently pending before the Washington State Supreme Court.6 In that appeal, Furman asserts that the imposition of the death penalty for a crime committed while a juvenile is cruel punishment that violates Article 1, Section 14 of the Washington Constitution.7 This Article argues that Furman should prevail. * Visiting Instructor of Law, University of Illinois. B.A. 1986, J.D. 1989, University of Washington; LL.M expected 1992, University of Illinois. The Author would like to thank Shelly Crocker, Kit Kinports, Donna Masumoto, Colleen O'Connor, and Clark Shores for their comments on drafts of this Article. The opinions reflected in the Article are, of course, solely those of the Author. 1. Clerk's Papers at 904-07, State v. Furman, No. 57003-5 (Wash. filed June 4, 1990). The clerk's papers and briefs filed in this case are available for inspection by contacting the Clerk of the Supreme Court in Olympia, Washington. 2. Id. at 1135. See infra notes 20-35 and accompanying text for a description of the statutory death penalty scheme in Washington. 3. Brief of Respondent at 10, State v. Furman, No. 57003-5 (Wash. filed June 4, 1990). 4. A "juvenile" is "any individual under the age of eighteen years." Wash. Rev. Code § 13.34.030(1) (1989). In this Article, "juvenile" refers to the age of the person at the time of the offense. 5. See infra notes 151-55 and accompanying text. The uniqueness of Furman's sentence is not changed by the fact that he was almost eighteen at the time of his offense. This Article argues that the Washington Supreme Court should draw a bright-line rule prohibiting the imposition of the death penalty on juveniles. 6. See supra note 1. 7. Article 1, Section 14, of the Washington Constitution provides that "[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted." Because the United States Supreme Court has indicated that the federal constitution does not bar the imposition of the death penalty on juveniles (see infra notes 14-20 and 362 University of Puget Sound Law Review [Vol. 15:361 The Washington Supreme Court should hold that Article 1, Section 14 bars the execution of juveniles for numerous reasons. First, the Washington State Constitution provides greater protection to juveniles than the United States Constitution.' Second, applying the death penalty to juveniles serves no valid legislative purpose because that penalty has no deterrent or retributive value.9 Third, no legislative declaration expressly states that the death penalty should apply to juveniles. Absent such a declaration, the court should not abdicate its state constitutional responsibility to protect individuals. Fourth, in other jurisdictions and in foreign countries, the trend is to not apply the death penalty to juveniles. 10 Finally, as noted above, Furman's sentence is unique among recent juvenile murderers." This Article first briefly examines the United States Supreme Court cases dealing with the juvenile death penalty. Second, the Article describes the history and structure of Washington's death penalty statute. Third, the Article analyzes whether the state constitution's ban on cruel punishment prohibits the imposition of the death penalty on juveniles. Such a state constitutional analysis necessarily requires examination of two issues. Because the U.S. Supreme Court has upheld the constitutionality of applying the death penalty to persons sixteen years or older, the threshold issue is whether the Washington Constitution provides greater protection to juveniles between sixteen and eighteen years of age. In analyzing this threshold issue, the Article applies the reasoning of State v. Gunwall'2 and concludes that Washington's Constitution does provide greater protection than its federal counterpart. The second issue is whether the juvenile death penalty violates the Washington Constitution's ban on cruel punishment. Applying the four-part test enunciated in State v. accompanying text), Furman's argument focuses solely on the state constitutional issue. 8. See infra notes 46-81 and accompanying text. 9. See infra notes 94-118 and accompanying text. 10. See infra notes 122-41 and accompanying text. 11. See infra notes 149-54 and accompanying text. 12. 106 Wash. 2d 54, 720 P.2d 808 (1986). See infra text accompanying notes 41-42 for Gunwall's six-factor test. In Gunwall, the Court held that the state constitution's privacy clause provides greater protection to an individual's right to privacy than does the Fourth Amendment to the federal constitution. 106 Wash. 2d at 64-67, 720 P.2d at 814-15. 1992] Juvenile Death Penalty in Washington Fain,3 this Article concludes that the Washington Constitution's ban on cruel punishment prohibits the imposition of the death penalty on juveniles. Thus, the Washington Supreme Court should vacate Furman's death sentence. I. THE FEDERAL CONSTITUTION AND THE JUVENILE DEATH PENALTY The United States Supreme Court has twice addressed whether the Eighth Amendment 4 prohibits imposing the death penalty on juveniles. In Thompson v. Oklahoma,'" a plurality of the Court held that the Eighth Amendment prohibits the execution of offenders who were under the age of sixteen at the time of the offense.' 6 Justice O'Connor concurred on nonconstitutional grounds.'7 One year later, in Stanford v. Kentucky,'8 a different plurality held that the Eighth Amendment does not bar imposing the death penalty on offenders who were either sixteen- or seventeen-years-old at the time of the offense. Once again, Justice O'Connor concurred in the judgment. 9 Thus, the Supreme Court has indicated that the 13. 94 Wash. 2d 387, 617 P.2d 720 (1980). Fain was convicted of being a habitual criminal and was sentenced to life imprisonment on the basis of three convictions for minor, nonviolent property crimes. I& at 402, 617 P.2d at 728. The court applied a four-part test to determine whether Fain's punishment violated the state constitution's ban on cruel punishment. See infra text at notes 81-82. The court held that Fain's punishment violated Article 1, Section 14 of the state constitution. 94 Wash. 2d at 402, 617 P.2d at 728. 14. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. 15. 487 U.S. 815 (1988). 16. Id A plurality of the Court, in an opinio (...truncated)