Major Analysis Project (rough draft)

If Gary Ridgway got life, how can anyone get death?

This question is often posed by opponents of capital punishment. If the Green River killer received life in prison for murdering 48 women, they ask, how can Washington State justify the death sentence for someone who killed far fewer people? Ridgway’s case has fueled an onslaught of arguments against the death penalty since his guilty plea six years ago. It was even the subject of a Washington State Supreme Court case: In State v. Cross, defendant Davya Cross challenged the imposition of the death penalty on him based on Ridgway’s sentence. Cross lost his case when the Court determined that his arguments were a moral issue rather than a legal one; even so, opponents continue to cite the Ridgway case in support of their arguments. But while it may seem convincing, the Ridgway case often takes on too large of a role in an argument, causing opponents to lose sight of the much stronger supporting evidence their claims require.

Capital punishment has been a subject of debate among both lawmakers and citizenry in Washington for more than a century. The state executed its first defendant in 1904 under a statute that required the death penalty for convicted first-degree murderers. In 1913, the death penalty was abolished in Washington; it was reinstated six years later with a necessary jury recommendation. Defendants continued to be executed until 1972, when the issue of arbitrariness was brought before the U.S. Supreme Court in Furman v. Georgia. That June, the Court ruled by a vote of five to four capital punishment unconstitutional. Death penalty statutes in 40 states, including Washington, were effectively voided, thus commuting the sentences of 629 death row inmates across the country. Just five months passed before Florida became the first state to rewrite its death penalty statute, eliminating problems cited in Furman. Washington followed, reinstating its death penalty statute in 1977 (“Constitutionality of the Death Penalty in America” and “Legal History of the Death Penalty in Washington State”).

Seventy-seven defendants have been executed in Washington since 1904. In the period between 1981 (the Revised Code of Washington’s last revision) and 2006, there were 254 aggravated first-degree murder cases across the state where the death penalty was an option. Prosecutors sought the death penalty in 79 of those cases. Juries returned death sentences in 30 cases. Of the 30 death sentences handed down, 20 have been reversed on appeal. Six defendants are currently on death row pending appeal and clemency hearings. Four cases have resulted in executions. Of these four, three have been “volunteers” – defendants who have waived appeals and allowed themselves to be executed. The method of execution in Washington is lethal injection, unless the defendant chooses to die by hanging (Davidson).

In January 2008, The Daily of the University of Washington printed an opinion essay by student Ryan Morden. Entitled “Let’s Kill the Death Penalty in Washington,” Morden claims that capital punishment is both inhumane and unjust, and therefore should be abolished. He cites as his main piece of evidence the fact that Green River killer Gary Ridgway received life in prison without parole for murdering 48 women. The author then compares the Ridgway case to a more recent headline:

Over Christmas break, two people shot a family of six to death in Carnation, a small town 30 miles east of Seattle. The murder was horrific, and people are calling for the death penalty. However, the message in our state is this: The more people you kill, the less likely you will be put to death thanks to the outcome of Ridgway’s trial. Remember, 48 killed is fine – six murdered is not. (Morden)

Although Morden also points to the amount of time it can take for a defendant to die by lethal injection (referring to the application of the death penalty as “cruel and unusual punishment”) as well as to biblical passages that seem to prove that capital punishment is in conflict with the Bible, the vast majority of his argument relies on the audience agreeing with his evaluation of the Ridgway case (Morden).

On the surface, Morden’s comparison between Ridgway and the Carnation murders seems legitimate. However, when you consider the often-unmentioned mitigating factors in Ridgway’s case, it becomes clear that this is a false comparison. The arrest of Ridgway in 2001 yielded enough information to charge him with only seven of the Green River killings, despite police suspicion that he had murdered dozens of other women in the region. King County prosecutor Norm Maleng agreed to a plea bargain only because of pressure from victims’ family members, who demanded information that would provide closure to the deaths of their loved ones. This is not to say that Ridgway did not deserve to die: Most people would probably agree that, if any case merited the death penalty, Ridgway’s was it. Yet the extenuating circumstances essentially eliminated the possibility of seeking the death penalty. Do the facts of one particular case mean Washington should refuse to execute anyone in the future? According to Morden, the answer is yes.

What is so interesting about Morden’s essay is his abandonment of the expected evidence for arguments against capital punishment. Rather than going on about cost and racial and socio-economic factors, Morden presents rarely-cited evidence in support of his claim. This move had every possibility of success: Rather than rehashing old statements, Morden could have given death penalty supporters new reasons to consider changing their positions. Instead, though, the evidence he presents lacks credibility. “In some cases, it’s been known to take from 30 minutes to an hour for a criminal to die, causing the recipient to undergo intense suffering until his body finally gives up,” Morden states. He goes on to argue that “lethal injection might as well be called ‘concentrated chemical domestic warfare’ without the ‘war’ part” (Morden). What the audience doesn’t know is where this information came from. Did a doctor say this? Or was it posted on Wikipedia by some kid with too much time on his hands? The author’s failure to disclose his sources affects his ethos, because the audience has no way of knowing how reliable the rest of his information is.

Morden’s ethos is also affected by the attitude he takes toward a portion of his audience. As a staff writer for The Daily, Morden should be aware of the fact that his audience is fellow college students. He appears to be taking advantage of the assumption that college students are generally liberal, and that liberals are generally more likely to oppose capital punishment than conservatives. Morden makes several cutting remarks toward conservatives: “Even members of the College Republicans can agree that putting an innocent person to death is wrong,” he says (Morden). The author goes on to take shots at John McCain’s “straight talk” style and at Fox News, which is watched most by conservatives and Republicans. Although he may not have meant anything by these comments, they still weaken Morden’s credibility as a writer – particularly his credibility among the exact group of students he wants to convince of his viewpoint. It is unlikely that conservatives would take his essay seriously, let alone bother formulating a response to his claim.

Like Morden, Kenneth H. Davidson of the Washington State Bar Association (WSBA) uses the Ridgway case as evidence to support his argument. But the biggest difference between the two articles is how they use the case. Morden cites it as his main piece of evidence; Davidson, on the other hand, lets the case take a backseat to the more reliable data and expert testimony. In “Time for a Hard Look at the Death Penalty,” Davidson claims the Washington State Legislature should fund a “thorough, multi-disciplinary study” of the death penalty system (Davidson). His article is presented in a question-and-answer format, which allows him to pose a series of questions that someone without an established opinion might ask about the death penalty. For example, has the death penalty been fairly and evenly applied? Also, does the death penalty serve a significant public good, which justifies its costs?

Davidson goes on to provide thorough answers to each question, frequently citing the Ridgway case in response. He says the following about the benefits of the death penalty versus the benefits of life in prison without parole:

Mark Prothero, who represented Gary Ridgway, questioned the function of the death penalty as a form of punishment. He described Mr. Ridgway’s solitary confinement in a windowless, six feet by 10 feet cell, where he serves his life sentence without the possibility of parole. Twice a week he is taken to a larger, windowless room for an hour of exercise… He has no hope of this routine changing. Mr. Prothero asked: “Is the death penalty really the worst punishment?” (Davidson)

Unlike Morden, who makes the typical “If Gary Ridgway got life, how can anyone get death?” argument, Davidson uses the Ridgway case to support his assertion that capital punishment is a form of “state-assisted suicide” (Davidson). He points to the fact that three of the last four executions in Washington were voluntary, with defendants actually preferring death to life in prison without parole. If the defendant wants to die, Davidson argues, is capital punishment really punishment at all?

Davidson’s article differs greatly from other opinion pieces on the death penalty. Most authors argue for their viewpoint – either pro- or anti-capital punishment – in hopes that, if they argue strongly (or loudly) enough, the audience will eventually adopt their position. Davidson, however, wants his audience to arrive at their own conclusions on the subject. His goal is simply to provide the appropriate information that will enable the audience to make an informed decision. This is not to say that Davidson remains completely objective, though. He clearly opposes the death penalty, although his opinion is (for the most part) masked by the included facts and data. Davidson’s decision to not be as forward with his personal opinion makes his audience more comfortable with the article. Those who support the death penalty are more likely to take his arguments seriously, to consider the evidence and formulate an opinion without feeling a lot pressure from the author to agree with him.

What makes Davidson’s article so effective is the amount of evidence he provides in support of his claim. While Morden offers almost no real evidence, Davidson includes data from a variety of reliable sources. He cites the American Bar Association’s study on racial disparities in the application of the death penalty; exonerations through DNA testing reported by The Innocence Project; and a recent study by death penalty scholar Joanna Shepard determining that capital punishment deters murder in only six states as evidence. Davidson also provides examples from several previous death penalty cases. Furthermore, Davidson himself is a reliable source of information on this subject. In addition to being a former chair of the WSBA Committee on Public Defense’s Death Penalty Subcommittee, he also received the WSBA’s highest honor, the Award of Merit, for his 2007 work on the Death Penalty Study. Davidson’s qualifications provide a strong appeal to ethos, which increases the likelihood that the audience will take his argument seriously.

Opponents of capital punishment have every right to ask the typical “If Gary Ridgway got life, how can anyone get death?” question. It is perfectly valid when taken at face value. After all, if a state with an active death penalty statute refuses to impose it on arguably the most prolific serial killer in American history, how can it justify a death sentence for anyone else? This question could puzzle even the most ardent supporters of capital punishment. But problems arise when opponents refuse to explore the Ridgway case beyond face value. Mitigating factors, such as the desire the victims’ families had for closure, or the decades that passed with the Green River case going unsolved, are ignored. Instead of delving into the messy details of a case, opponents prefer to make sweeping generalizations that will further their arguments – even if it means sacrificing the truth their audiences yearn for.

This is not to say that opponents should stop using the Ridgway case to argue against the death penalty. Rather, they should consider how they are using it. If, like Morden, your claim rests almost entirely on the Ridgway case, you probably need to rework your argument. It is extremely difficult to apply the outcome of one case to all others; more importantly, though, it is an argument that any skeptical audience would likely reject. However, if you follow Davidson’s model and let reliable data and expert testimony shine, you can still use the Ridgway case to create a link between your claim and your evidence. Most people would agree that the question at the heart of so many opponents’ arguments is a good one. But while that may be a good starting point, what really matters is the supporting evidence you need to prove your claim and win over your audience.