In State v. McEnroe, the Washington Supreme Court ruled that prosecutors are not prohibited by statute from considering the evidence of guilt in deciding whether to seek the death penalty. Prosecutors must consider mitigating factors, and they also have discretion to consider other factors, including the strength of the evidence. Such consideration, the Court explained, does not violate principles of equal protection so long as prosecutors make an individualized determination.
In late December 2007, Joseph McEnroe and Michele Anderson confessed to murdering six members of Anderson’s family and were charged with aggravated first degree murder, which carries a possible sentence of death. A prosecutor’s discretion to seek the death penalty is governed by RCW 10.95.040(1), which provides that “[i]f a person is charged with aggravated first degree murder . . ., the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.” The prosecutor determined that McEnroe and Anderson were eligible for death sentences, and in issuing the notice of special sentencing proceeding, the prosecutor acknowledged the statutory obligation to consider mitigating circumstances but concluded that there were insufficient reasons to keep jurors from considering sentences of death. The defendants later learned that the prosecutor, in deciding to leave the jury the option of recommending death sentences, weighed the strength of the evidence against McEnroe and Anderson in addition to considering mitigating evidence.
After this revelation, the trial court concluded that the prosecutor violated RCW 10.95.040 and struck the notices of special sentences proceeding, reasoning (1) that the prosecutor was limited under the statute to considering only mitigating evidence and (2) that consideration of the strength of evidence violated equal protection principles because it allowed for the hypothetical possibility that defendants who were equal in every respect except strength of evidence could be exposed to varying degrees of criminal punishment upon proof of identical criminal elements. On discretionary review, the Court of Appeals certified the cases for transfer to the Supreme Court. In a unanimous opinion by Justice Wiggins, the Supreme Court reversed.
Interpretation of RCW 10.95.040
In evaluating the defendants’ argument that the prosecutor violated RCW 10.95.040(1), the Court recognized that the statutory text does not define “mitigating circumstances.” Applying the cannon that statutes should be read as a whole and considered in the “entire sequence of all statutes relating to the same subject matter” and a dictionary definition of “mitigate,” the Court concluded that mitigating circumstances are those that “require a punishment less severe than death.” Instructive were related statutory provisions governing the jury’s determination in a special sentence proceeding – which also focuses on whether there are sufficient mitigating circumstances to merit leniency – state that juries “may consider any relevant factor” in addition to eight enumerated mitigating factors. Here, the Court further concluded, that the prosecutor considered mitigating circumstances and therefore complied with the statute.
Addressing the critical point at issue – whether RCW 10.95.040(1) prohibits the consideration of information other than mitigating circumstances – the Court concluded that prosecutors may weigh the evidence of guilt for four reasons:
- No statutory provision barred prosecutors from considering factors other than mitigating circumstances;
- Because prosecutors could consider the facts and circumstances of the case alongside mitigating evidence, there is no logical reason to exclude the strength of the evidence from consideration;
- There are sound policy reasons to consider the evidence, in light of the gravity and expense of death penalty cases; and
- Consideration of the evidence is consistent with the Court’s implicit assumptions in earlier decisions.
Turning to the equal protection issue, the Court explained that prosecutors do not enjoy unfettered discretion in deciding whether to seek the death penalty and must make individuated decisions, considering mitigating circumstances. The Court rejected the trial court’s ruling that weighing evidence necessarily violated equal protection principles as illustrated by a hypothetical involving two defendants identical in every relevant respect but strength of evidence in which the prosecutor decided to seek the death penalty in the case with strong evidence but not in the case with relatively weak evidence. Such a hypothetical, the Court stated, was unrealistic. In reality, the Court declared, prosecutors must make individuated assessments considering a variety of factors, and vindicate equal protection principles in the process.
Applying the doctrine of constitutional avoidance, the Court declined to address the State’s argument that the trial court’s ruling violated the principle of separation of powers.
The substantive impact of this opinion will likely be limited to scope of prosecutors’ discretion in deciding whether to seek the death penalty. In this respect, the Court declined the invitation to restrict prosecutorial discretion to consideration of only mitigating factors. The Court’s interpretation of RCW 10.95.040 is valid and sound, as it cannot be logically inferred from the text that mitigating circumstances are the exclusive consideration.
Outside the particular issue of prosecutorial discretion, this opinion is noteworthy for the Court’s application of interpretive canons – using related statutory provisions as interpretive guides and reliance on dictionary definitions – and the doctrine of constitutional avoidance.
The Court’s ruling on equal protection makes sense in light of the requirement for individualized assessment and evidence showing that the prosecutor considered mitigating circumstances. But the Court’s reasoning is incomplete. Rather than fighting the hypo – which might not be realistic but nonetheless illustrates a valid criticism – it would have been helpful for the Court to explain why a theoretical possibility does not constitute an equal protection violation and, further, why there was no equal protection violation in this case, as distinguished from instances of disparate treatment. An important takeaway here for both prosecutors and defense counsel alike is that creating a record of the factors considered is important to establish an individuated determination.