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Originally published Friday, June 8, 2012 at 4:03 PM

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It's time for Washington to replace death penalty with life sentence

It is time for Washington to acknowledge the deep flaws with the capital-punishment system and replace the death penalty with life without parole, writes former Whatcom County Superior Court Judge David Nichols.

Special to The Times

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IT is past time to end the death penalty in Washington.

This month, the Washington State Supreme Court overturned the conviction and death sentence of Darold Stenson, a man who has spent more than 18 years on death row. This decision underscores the inherent flaws of the state's capital-punishment system and why it is time for Washington to end the death penalty.

As a Superior Court judge, I tried many murder cases, including one death-penalty prosecution, which is still in limbo after almost two decades of appeals. In my 20 years on the bench, I came to recognize the death penalty as inherently unfair, arbitrary, costly and ineffective.

Stenson was convicted and sentenced to die for the murder of his wife and business partner in 1995. The state's high court ruled that Stenson's conviction must be reversed and remanded for a new trial because the Clallam County prosecutor's office failed to disclose evidence that might have been helpful to his defense. The evidence only came to light 15 years after his conviction, when Stenson's attorneys requested the state turn over case files.

What is striking is that the existence of error is not unique to Stenson's case. In fact, it's typical of the majority of death-penalty cases. Of the 33 people sentenced to death in Washington since 1981, 20 of their sentences have been overturned. Trial-court errors have resulted in death sentences being converted to life without parole, or, as in Stenson's case, have resulted in both the sentence and conviction being overturned.

The high reversal rate of death sentences in Washington raises a basic question: What is the point of pursuing the death penalty in the first place if most cases end as life without parole anyway?

Death-penalty prosecutions are much more costly and lengthy than cases where prosecutors seek life without parole from the outset. A 2006 Washington State Bar Association report found that capital cases on average cost nearly $800,000 more than noncapital cases for aggravated murder.

The length of death-penalty cases often prolongs the pain of victims' families, who must suffer uncertainty over years of court hearings. That's why some family members of murder victims have become outspoken supporters of replacing the death penalty with life without parole.

In Stenson's case, we should not only question the Clallam County prosecutor's office withholding evidence but also the prosecutor's decision to pursue the death penalty in the first place.

The reality is the death penalty is a lottery of geography — prosecutors in various counties differ widely on whether they will seek the death penalty. The decisions regarding who is sentenced to death have been described as being as random as being struck by lightning. These decisions are influenced by politics, available resources, public outcry and a host of other rationales, including the seriousness of the crime.

There should be "equal protection of the law." But something is obviously wrong if, say, an 18-year-old were put to death because in the heat of the moment he shot a policeman but life without parole is given to someone who killed almost 50 people, as in the case of Gary Ridgway, the so-called "Green River killer."

It is good news that the errors in Stenson's case came to light. However, it is time for Washington to acknowledge the deeper flaws with the capital-punishment system and replace the death penalty with life without parole.

David Nichols served as a Superior Court judge in Whatcom County from 1985 to 2005.

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