State v. Frampton

627 P.2d 922, 95 Wash. 2d 469, 1981 Wash. LEXIS 994

• Court: Washington Supreme Court
• Decided: April 16, 1981
• Docket: 45570, 45634, 45811, 45922, 46328, 47257, 47285
• Status: Published

Opinions

Dolliver, J. —

These cases are before the court pursuant to an order of October 10, 1980, calling for briefs and oral argument on certain issues relative to the death penalty. All of the cases involve an attempt by the State to impose the death penalty for the crime of aggravated murder in the first degree. RCW 9A.32.040-.047; RCW 10.94.010-.030.

Nedley Norman, Jr., Howard Foren, Michael Robtoy, Floyd William Marr, and Morris Frampton are here on appeal from first degree murder convictions and sentences of death imposed after sentencing hearings held pursuant to RCW 10.94.020. Each of their death sentences was imposed by the trial judge pursuant to RCW 9A.32.040(1), after the jury returned affirmative answers to each of the sentencing questions posed by RCW 10.94.020(8)-(10).

Douglas Justice is here on appeal from his conviction of first degree murder and the sentence of life imprisonment without possibility of parole or release imposed on him after his jury returned a negative answer to the "mitigating circumstances" sentencing question posed by RCW 10.94-.020(8).

Scott Smith and Robert DeAngelis are here on interlocutory appeals by the State of trial court rulings that the death penalty could not be constitutionally imposed in light of State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980), and United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). In Smith's case, the trial court ruled the death penalty was unconstitutional in light of Martin, but held that the defendant could still receive life imprisonment without possibility of parole if he was convicted on a not guilty plea. In the DeAngelis case, the trial court dismissed the notice of death penalty without indicating what punishment was available if the defendant was convicted at trial.

Except for Robtoy, who declined to plead and had a plea of not guilty entered by the court, all defendants have at all times pleaded not guilty to these murder charges.

Defendant Smith contests our review of the order issued by the trial court. This matter was considered by the Supreme Court Commissioner and in an order dated September 23, 1980, the Commissioner ruled the order of the trial court to be appealable. On October 23, 1980, we denied Smith's motion to modify the Commissioner's ruling. His case is properly before us. Defendant Pauley is not a participant in this proceeding.

The five issues which the court accepted for argument are:

1. Whether the present statutory scheme for imposing the death penalty is unconstitutional in light of State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980);

2. If so, may the State still seek and have imposed in cases of aggravated first degree murder, the punishment of life imprisonment without the possibility of parole;

3. Whether the special sentencing proceeding for imposing the death penalty unconstitutionally withdraws from the jury the question of the appropriate sentence;

4. Whether it is possible for a jury to make a prediction as to the future dangerousness of a defendant which is required by RCW 10.94.020(10)(b); and

5. Whether death by hanging is cruel and unusual punishment.

The issues will be dealt with in this sequence.

We are not considering (1) whether the death penalty is per se unconstitutional and violates the Eighth Amendment and Const, art. 1, § 14, or (2) whether "the sentence of death [in any of these cases] is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.94.030(3)(b).

I

RCW 10.94.020(1) provides:

If notice of intention to request the death penalty has been served and filed by the prosecution in accordance with RCW 10.94.010, then a special sentencing proceeding shall be held in the event the defendant is found guilty of murder in the first degree under RCW 9A.32-.030(1) (a).

RCW 10.94.020(2) provides, in part:

[If] the trial jury returns a verdict of murder in the first degree under RCW 9A.32.030(l)(a), then, at such time as the verdict is returned, the trial judge shall reconvene the same trial jury to determine in a separate special sentencing proceeding whether there are one or more aggravating . . . and . . . mitigating circumstances . . . and to answer special questions . . .

In State v. Martin, supra at 8, the court found there was "no current statutory provision that authorizes the impaneling of a special jury to decide the death penalty issue when a capital defendant pleads guilty." We held that since there is no statutory means by which the death penalty can be imposed when a defendant pleads guilty, the maximum penalty which could be imposed on a plea of guilty to first degree murder is life imprisonment with a possibility of parole.

The State now argues, however, that within existing statutes, there is a method whereby the death penalty can be imposed when there is a guilty plea in a case of first degree murder. To reach this result, it urges that we construe RCW 10.49.010 in pari materia with either RCW 10.94-.020(1) or RCW 10.94.020(2).

RCW 10.49.010, a statute enacted in 1854 and unchanged since then, provides:

If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in their discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.

Under the analysis of the State, following a plea of guilty, a jury, as authorized by RCW 10.49.010, would be impaneled under a "special sentencing proceeding" (RCW 10.94-.020(1), (2)), deliberate pursuant to the procedures contained in RCW 10.94.020(3)-(10), answer the special questions under that portion of the statute and determine whether the sentence would be death or life imprisonment without parole.

Prior to the enactment of RCW 9A.32 (1975 and 1977) and RCW 10.94 (1977), the Washington statutes relative to trial by jury and murder in the first degree were RCW 9.48.030, RCW 10.01.060 and RCW 10.49.010. A guilty plea was allowed and, in the event of such a plea, it was mandatory that a jury then "be impaneled to hear testimony, and determine the degree of murder and the punishment therefor." RCW 10.49.010. Under this system, the degree of murder and the punishment was determined by the jury whether a defendant pleaded guilty or not guilty. See State v. Davis, 6 Wn.2d 696, 108 P.2d 641 (1940).

In State v. Martin, we held a defendant could plead guilty under the current statutes. Given this ruling, the question posed by the State is: When a defendant pleads guilty to aggravated first degree murder is a jury to be impaneled under RCW 10.49.010 to determine the degree of murder and the punishment therefor, and is that same jury then to conduct a special sentencing proceeding under RCW 10.94.020? Did the legislature intend the old scheme for impaneling a jury in the event of a guilty plea to be continued under the new statutes? We do not believe it did.

If the legislature had meant RCW 10.49.010 and RCW 10.94.020(1) and (2) to be read together when a defendant pleaded guilty, it is unreasonable to believe it would have failed to say so. RCW 9A.32 and RCW 10.94 are carefully drafted, complex and interrelated statutes. They represent an attempt by the legislature to provide for the imposition of the death penalty when certain conditions have been met. It is readily apparent that RCW 9A.32 and RCW 10.94 as they pertain to the death penalty are meant to be read as an integrated whole. Nowhere in the legislative history or in the language of the statute is there the slightest suggestion to the contrary.

RCW 10.94.010 sets up a procedure whereby:

When a defendant is charged with the crime of murder in the first degree as defined in RCW 9A.32.030(l)(a), the prosecuting attorney or the prosecuting attorney's desig-nee shall file a written notice of intention to request a proceeding to determine whether or not the death penalty should be imposed when the prosecution has reason to believe that one or more aggravating circumstances, as set forth in RCW 9A.32.045 as now or hereafter amended, was present and the prosecution intends to prove the presence of such circumstance or circumstances in a special sentencing proceeding under RCW 10.94.020.

The special sentencing proceeding provided by RCW 10.94-.020(1) and (2) is described in great detail in RCW 10.94-.020(3)-(10). For this court now to say the legislature, in the case of a guilty plea when the State requests the death penalty, expected or authorized reference to RCW 10.49-.010, an 1854 statute whose entire reference had been to previous homicide statutes, places too great a strain on statutory construction.

In addition to the lack of reference to RCW 10.49.010 in the death penalty statutes, the legislative history shows a failure by the legislature to consider the scheme proposed by the State. As was outlined in State v. Martin, supra at 19 (Horowitz, J., concurring), there was language in House Bill 615, which contained the original version of RCW 10.94, providing that "if the defendant pleaded guilty to murder in the first degree, the death penalty proceeding shall be conducted before a jury impaneled for that purpose and such jury cannot be waived.'" House Bill 615, § 68, 45th Legislature (1977).

House Bill 615 introduced in the 1977 regular session of the legislature, was stated to be the "Comprehensive Sentencing Act of 1977". House Bill 615, § 1. It was referred to the House Committee on Judiciary. While in committee, it was replaced by Substitute House Bill 615 which was limited to the death penalty and was passed by the House on May 2, 1977. The language in section 68, ante, was eliminated from Substitute House Bill 615. House Journal, 45th Legislature, at 1178.

Substitute House Bill 615 went to the Senate where it was referred to the Senate Judiciary Committee. The bill was amended in committee and reported out "Do Pass". Senate Journal, 45th Legislature, at 1517. On the floor of the Senate, the bill was substantially amended to its present form in RCW 10.94. Senate Journal, 45th Legislature, at 2204. The cited language in section 68 was not in the bill as passed by the Senate. Substitute House Bill 615 was referred again to the House which adopted the Senate amendments. House Journal, 45th Legislature, at 1765. The importance of this legislative activity was correctly stated by Justice Horowitz:

The significance of this rejection should not be overlooked in ascertaining legislative intent. Consideration of the legislative history of an enactment has long been held to be a legitimate method of determining the legislature's intent. Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965); State ex rel. Fair v. Hamilton, 92 Wash. 347, 159 P. 379 (1916). The majority in Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 536 P.2d 157 (1975), acknowledged the value in appropriate circumstances of considering sequential drafts of a bill. Hama Hama Co. v. Shorelines Hearings Bd., supra at 450. Unlike the enactment considered in that case, RCW 10.94 is not "replete with inconsistencies, errors, and apparent oversights," and thus it is clear some insight can be gained from examining the death penalty statute's legislative history. It is presumed that members of the legislature were aware of the state of the law and of prior drafts of the bill at the time RCW 10.94 was enacted. See State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977); State ex rel. Fair v. Hamilton, supra at 352; 2A C. Sands, Sutherland's Statutes and Statutory Construction § 48.04, at 197 (4th ed. 1973). It therefore is presumed that the legislature did not intend to allow a special sentencing procedure for infliction of the death penalty on a first degree murder defendant who pleads guilty. There is no evidence which overcomes this presumption.

Martin, at 19. While it may be contended the legislature eliminated section 68 because it was aware of the existence of RCW 10.49.010, there is nothing to suggest this was the case and if this was so it is reasonable to believe the. legislature would have said so.

Furthermore, as has been observed many times, death as a punishment is different. When a defendant's life is at stake, the courts have been particularly sensitive to insure that every safeguard is observed. Gregg v. Georgia, 428 U.S. 153, 187, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). The connection between RCW 10.49.010 and RCW 10.94.020 is too tenuous to be used as a vehicle to condemn a defendant to death by execution. We reaffirm our position in State v. Martin, supra, that there is neither a "current statutory provision that authorizes the impaneling of a special jury to decide the death penalty issue when a capital defendant pleads guilty" (Martin, at 8) nor a "statutory means provided by which the death penalty can be imposed." Martin, at 9. RCW 10.49.010 fitted in with the scheme of previous homicide and death penalty statutes. See State v. Baker, 78 Wn.2d 327, 474 P.2d 254 (1970). It is not applicable to the present system.

The maximum penalty for a defendant who pleads guilty to first degree murder is life imprisonment without possibility of parole. A defendant who pleads not guilty and is subject to a jury trial may receive the death penalty. Where, pursuant to statutory procedure, the death penalty is imposed upon conviction following a plea of not guilty and a trial, but is not imposed when there is a plea of guilty, that statute is unconstitutional. United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968); State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980) (Horowitz, J., concurring). The Washington statutes for the imposition of the death penalty needlessly chill a defendant's constitutional rights to plead not guilty and demand a jury trial and violate due process. United States v. Jackson, supra. They do not meet the standards of the state or federal constitutions.

The State next contends that as a matter of policy it should be allowed to require a jury in capital cases. This may be a salutary policy but a request for its implementation must be directed to the legislature, not this court. We agree with the views of the United States Supreme Court in United States v. Jackson, supra at pages 584-85:

It is true that a defendant has no constitutional right to insist that he be tried by a judge rather than a jury, Singer v. United States, 380 U. S. 24 [13 L. Ed. 2d 630, 85 S. Ct. 783 (1965)], and it is also true "that a criminal defendant has [no] absolute right to have his guilty plea accepted by the court." Lynch v. Overholser, 369 U. S. 705, 719 [8 L. Ed. 2d 211, 82 S. Ct. 1063 (1962)]. But the fact that jury waivers and guilty pleas may occasionally be rejected hardly implies that all defendants may be required to submit to a full-dress jury trial as a matter of course. Quite apart from the cruel impact of such a requirement upon those defendants who would greatly prefer not to contest their guilt, it is clear — as even the Government recognizes — that the automatic rejection of all guilty pleas "would rob the criminal process of much of its flexibility." As one federal court has observed:

"The power of a court to accept a plea of guilty is traditional and fundamental. Its existence is necessary for the . . . practical . . . administration of the criminal law. Consequently, it should require an unambiguous expression on the part of the Congress to withhold this authority in specified cases." [United States v. Willis, 75 F. Supp. 628, 630 (D.C. 1948).]

Finally, the State asserts that since the Texas and Washington statutes are similar, we should adopt the reasoning of the Texas courts in construing our statute. We reject this argument. The major similarity between the Washington and Texas statutes and mentioned in the legislative debate (see House Journal, 42d Legislature (1971), at 1160) is the question to the jury as to the prediction of future dangerousness. See IV, infra. As to the Texas statutes which concern guilty pleas, the requirement of a jury trial in a capital case and the identity of the sentencing jury, we do not find the scheme of the Texas statute to be comparable to the complex, interrelated system of Washington.

We reaffirm our holding in State v. Martin, supra, that a defendant who pleads guilty cannot be subjected to the enhanced penalties for first degree murder under RCW 9A.32.040. We hold that the procedure for imposing the death penalty is unconstitutional for any defendant, either a defendant who pleads guilty or one who is found guilty by a jury. United States v. Jackson, supra.

II

The constitutional principle of United States v. Jackson, supra, is that if the severity of the punishment is dependent upon the way guilt is determined — e.g., by a plea of guilty or by a jury trial — this imposes an impermissible burden on the exercise of constitutional rights. The question we must now consider is whether, although the death penalty may not be imposed, the State may still seek and have imposed in cases of aggravated first degree murder, the punishment of life imprisonment without the possibility of parole. We hold it may not.

Before turning to the constitutional argument, we note that in the event of a guilty plea the same hiatus exists in RCW 10.94 in the procedure for reconvening a jury for purposes of imposing a sentence of life without possibility of parole as there is for imposing the death penalty. All of the jury sentencing procedures, including life with possibility of parole, are predicated on the filing of a notice of intention to request the death penalty in accordance with RCW 10.94.010. Thus, if the death penalty scheme is unconstitutional, as we hold it to be, the procedure for filing a notice of intention to seek the death penalty is obviated and the question of life imprisonment without possibility of parole may not be considered.

There are also constitutional reasons for striking the sentence of life imprisonment without possibility of parole. Although United States v. Jackson, supra, involved the death penalty, its rationale is not confined to the death penalty. The State, however, relying upon Corbitt v. New Jersey, 439 U.S. 212, 58 L. Ed. 2d 466, 99 S. Ct. 492 (1978), contends Jackson has no application.

In Corbitt, it was held that Jackson did not apply to the punishment scheme in New Jersey. Under the New Jersey homicide statutes, juries designated whether murder was in the first or second degree. The mandatory punishment for those convicted of first degree murder was life imprisonment; second degree murder carried a maximum sentence of 30 years. There was no death penalty. Trials to the court in murder cases were not permitted and guilty pleas were forbidden. However, pleas of non vult or nolo contendere were allowed. If accepted, the trial court had discretion to impose a life sentence or the second degree murder sentence without actually determining whether the murder was of the first or second degree. The Supreme Court stated the difference between Jackson and Corbitt:

We agree with the New Jersey Supreme Court that there are substantial differences between this case and Jackson, and that Jackson does not require a reversal of Corbitt's conviction. The principal difference is that the pressures to forgo trial and to plead to the charge in this case are not what they were in Jackson. First, the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia, 428 U. S. 153, 187 [49 L. Ed. 2d 859, 96 S. Ct. 2909] (1976), is not involved here. Although we need not agree with the New Jersey court that the Jackson rationale is limited to those cases where a plea avoids any possibility of the death penalty's being imposed, it is a material fact that under the New Jersey law the maximum penalty for murder is life imprisonment, not death. Furthermore, in Jackson, any risk of suffering the maximum penalty could be avoided by pleading guilty. Here, although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial.

(Footnote omitted.) Corbitt v. New Jersey, supra at 217.

As is apparent from the New Jersey statute and its treatment by the Supreme Court, it was in effect a statute which encouraged plea bargaining. As was observed in Cor-bitt v. New Jersey, supra at pages 223-24:

Had Corbitt tendered a plea and had it been accepted and a term of years less than life imposed, this would simply have recognized the fact that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. The States and the Federal Government are free to abolish guilty pleas and plea bargaining; but absent such action, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. New Jersey has done no more than that.

We discern no element of retaliation or vindictiveness against Corbitt for going to trial. There is no suggestion that he was subjected to unwarranted charges. Nor does this record indicate that he was being punished for exercising a constitutional right. Indeed, insofar as this record reveals, Corbitt may have tendered a plea and it was refused. There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed. Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.

(Footnote omitted.)

In contrast to our statutory scheme, the New Jersey system allowed the judge to impose either the maximum or minimum sentence for murder upon the plea of non vult. Even though the facts may indicate second degree murder, the trial court on a plea of non vult might sentence a defendant to life imprisonment. Under RCW 10.94, any risk of the more severe penalty can be avoided by pleading guilty; the maximum penalty is reserved only for those who assert their right to a jury trial and plead not guilty.

In other jurisdictions where this issue has arisen and where the death penalty has not been involved, the courts have consistently found the legislation constitutionally defective. See People v. C., 27 N.Y.2d 79, 261 N.E.2d 620, 313 N.Y.S.2d 695 (1970); Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620 (1973); State v. Hass, 268 N.W.2d 456 (N.D. 1978); State v. Nichols, 247 N.W.2d 249 (Iowa 1976); In re Lewallen, 23 Cal. 3d 274, 590 P.2d 383, 152 Cal. Rptr. 528 (1979). A statute which exacts a penalty for demanding a jury trial is unconstitutional. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). The State may not by statute offer "an individual a reward for waiving a fundamental constitutional right, or [impose] a harsher penalty for asserting it". People v. C., supra at 86. As the Supreme Court pointed out in United States v. Jackson, supra at page 583:

For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not he inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right.

Even so, the State contends, a life sentence without a possibility of parole or release is not sufficiently different from life imprisonment with the possibility of parole and given the fact that parole is a matter of favor or grace to which the legislature may attach such conditions as it sees fit, the penalty is the same. See In re George, 90 Wn.2d 90, 579 P.2d 354 (1978); State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).

It is apparent, however, that the legislature did not think the two penalties to be the same. Life imprisonment without possibility of parole or release is reserved only for those first degree murderers who the jury also finds to have committed an "aggravated" murder. The sentence of life without possibility of parole cannot be suspended, deferred, or commuted by any judicial officer. The Board of Prison Terms and Paroles cannot grant parole, reduce the period of confinement or release a defendant for good behavior. Temporary release or furlough programs are forbidden. RCW 9A.32.040(2). The reservation of these penalties, which are absolute, to those who plead not guilty is exactly that kind of burden which is forbidden by the constitution.

The legislature believed and we find the penalty of life imprisonment without hope of parole or release to be substantially different than life with the possibility of parole. This difference violates the principle enunciated in United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968).

We hold the State may not constitutionally seek life imprisonment without possibility of release or parole for those who are found guilty of aggravated first degree murder. The fact that RCW 10.94 contains a severability clause (RCW 10.94.900) is irrelevant if the portion remaining, as here, is still unconstitutional.

m

Defendants contend the sentencing procedures in RCW 10.94.020 are constitutionally defective because the questions which the jury must answer in the sentencing procedure are in the nature of special questions to the jury and "infringe on [the jury's] power to deliberate free from legal fetters". United States v. Ogull, 149 F. Supp. 272, 276 (S.D.N.Y. 1957). The difficulty as seen by defendants is spelled out in United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). It is

the subtle, and perhaps open, direct effect that answering special questions may have upon the jury's ultimate conclusion. There is no easier way to reach, and perhaps force, a verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by a majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of the questions.

Under RCW 10.94.020, the jury must be unanimously convinced beyond a reasonable doubt that (1) one or more statutory aggravating circumstances have been proven (RCW 10.94.020(7)); (2) there are not sufficient statutory or nonstatutory mitigating circumstances to merit leniency (RCW 10.94.020(8)); (3) the evidence presented at trial establishes the guilt of the defendant with clear certainty (RCW 10.94.020(10)(a)); and (4) there is a probability that the defendant would commit additional criminal acts of violence that would constitute a continuing threat to society (RCW 10.94.020(10)(b)).

Defendants not only raise objection to these questions, they also state there must be a general verdict rendered by the jury as to the sentence. It should be noted that the cases cited by the defendants involve jury verdicts as to guilt or innocence and not the sentencing procedure. Whatever may be the requirement in these cases, in a capital case the sentencing procedures contained in the Washington statutes are acceptable to the United States Supreme Court. The Texas death penalty procedure, like that in Washington, requires the jury to answer special questions but has no general verdict for sentencing. The Texas statute was upheld in Jurek v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976). In Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), there were special questions and a general verdict from the jury. The Georgia statute was upheld. In discussing sentencing procedure, the Gregg court said:

In summary, the concerns expressed in Furman [Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972)] that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

Gregg v. Georgia, supra at 195.

In Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Supreme Court concluded that:

[I]n all but the rarest kind of capital case, [the sentencer may] not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

(Footnotes omitted.) Pursuant to RCW 9A.32.045(2), the sentencing jury is not precluded from considering any mitigating factor: "In deciding whether there are mitigating circumstances sufficient to merit leniency, the jury may consider any relevant factors, including, but not limited to, the following:". Consequently, the Washington procedures both meet the requirements of Gregg and do not violate the strictures of Lockett.

So long as the statutes meet the requirements enunciated by the United States Supreme Court so that the death penalty is not imposed arbitrarily or capriciously and the sentencing authority is given adequate information and guidelines, a general verdict by the jury on sentencing is not required. We hold that under the statutory scheme for imposing the death penalty in this state a general verdict by the jury as to the sentence is not constitutionally required, and that the questions asked do not infringe upon the prerogatives of the jury.

IV

RCW 10.94.020(10) (b) reads:

Are you [the jury] convinced beyond a reasonable doubt that there is a probability that the defendant would commit additional criminal acts of violence that would constitute a continuing threat to society?

Defendants claim the question is so vague and the issue it presents so imponderable that it fails to provide a rational and fairly limited basis for the decision whether or not to impose the death penalty. We disagree and, contrary to the position of defendants, find that this question has been considered and answered by the United States Supreme Court in Jurek v. Texas, supra.

In Jurek, the Supreme Court reviewed a provision of the Texas death penalty statute which is identical to the question in RCW 10.94.020(10)(b). In discussing this provision of the Texas statute, the court, in an opinion signed by three Justices said:

Focusing on the second statutory question that Texas requires a jury to answer in considering whether to impose a death sentence, the petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.

(Footnotes omitted.) Jurek v. Texas, 428 U.S. 262, 274-76, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976).

Chief Justice Burger concurred in the judgment. Justice White, joined by the Chief Justice and Justice Rehnquist, concurred. The question before us was specifically reviewed by the concurring opinion of Justice White. Discussing the issue of vagueness, the concurrence stated:

Petitioner claims that the additional questions upon which the death sentence depends are so vague that in essence the jury possesses standardless sentencing power; but I agree with Justices Stewart, Powell, and Stevens that the issues posed in the sentencing proceeding have a commonsense core of meaning and that criminal juries should be capable of understanding them.

Jurek, at 278-79. In essence, the Supreme Court upheld the Texas language on predicting future events because (1) prediction of future behavior has a common core of meaning juries can understand and (2) prediction of future behavior depends on the jury having sufficient information and under the Texas statute the jury would have before it "all possible relevant information about the individual defendant whose fate it must determine." Jurek, at 276. The Washington statute is clearly sufficient to meet this standard. RCW 10.94.020(7), (8), (10)(a), (b); RCW 9A.32-.045(2). Certainly the rationale and results of Jurek can be argued. See, e.g., Black, Due Process for Death: Jurek v. Texas and Companion Cases, 26 Cath. U.L. Rev. 1 (1976). We believe, however, that the constitutional validity of the Texas statute which is identical to RCW 10.94.020(10) (b) has been considered by a majority of the Supreme Court and its constitutionality upheld. This same issue has come before the Texas Court of Criminal Appeals. Collins v. State, 548 S.W.2d 368 (Tex. Crim. App. 1976), cert. denied, 430 U.S. 959, 51 L. Ed. 2d 811, 97 S. Ct. 1611 (1977). In Collins, the Texas court held the words "a probability" in the context of the statute are not unconstitutionally vague or overbroad.

Defendants next urge that the due process clause of the Washington Constitution, article 1, section 3, "No person shall be deprived of life, liberty, or property, without due process of law", may set a higher standard than the fourteenth amendment to the United States Constitution and should control. We have long held that federal cases construing the various due process clauses of the federal constitution should be given great weight but that they are not necessarily controlling in our construction of Const, art. 1, § 3. Young v. Konz, 91 Wn.2d 532, 588 P.2d 1360 (1979); Herr v. Schwager, 145 Wash. 101, 258 P. 1039 (1927).

We believe, however, that the prediction of future dangerousness while admittedly difficult is neither so vague nor imponderable as to be unconstitutional. Although the case concerned an attack on the commitment law for criminal insanity and the predictive language was "a substantial likelihood of repeating similar acts" rather than "a probability" certain criminal acts would be committed, we believe the analysis and holding by the court in Alter v. Morris, 85 Wn.2d 414, 536 P.2d 630 (1975), overruled on other grounds, In re Harris, 94 Wn.2d 430, 436, 617 P.2d 739 (1980), is applicable here. While, as we observed in Alter at page 420, "the social and scientific determinants of dangerousness, especially future dangerousness, are far from perfect", nonetheless we found the standard not to be unconstitutional:

[T]he State's interest in the safety of its citizens is strong enough to allow the legislature some leeway in formulating what Eire essentially predictive standards. The theory of mentsd commitment underlying both statutes is twofold: preventive detention, and treatment. Neither statute authorizes commitment and detention on the sole ground of a person's need for treatment; protection of citizens is the primary justification for the deprivation of Em individual's liberty under these statutes. Protection by prevention requires prediction; under our statutes, prediction is based in part on the fact of prior dangerous acts proved beyond a reasonable doubt. Full due process safeguards surround that proof. The fact that the prediction cannot be foolproof does not discredit the attempt. At this point in the development of our knowledge about human behavior, the dangerousness standard is not an unreasonable one.

Alter v. Morris, supra at 420-21.

We hold RCW 10.94.020(10)(b) meets the standards of both the federal and the state constitutions.

V

Defendants contend that execution by hanging (RCW 10.70.090) violates the eighth amendment to the United States Constitution and Const, art. 1, § 14. We emphasize again that the issue before us is not the constitutionality of the death penalty per se but only whether a particular method of executing the death penalty violates the constitution.

The State cites a number of cases upholding the constitutionality of hanging as a means of execution. These cases without exception are more than 50 years old, apply long discarded standards for determining cruel and unusual punishment (State v. Burris, 194 Iowa 628, 190 N.W. 38 (1922)), or simply fail to discuss any standards (State v. Butchek, 121 Ore. 141, 253 P. 367 (1927)). The 1951 Oregon case cited does not even discuss the constitutionality of death by hanging. State v. Leland, 190 Ore. 598, 227 P.2d 785 (1951). The State cites no modern authority which holds execution by hanging to be constitutional.

In Weems v. United States, 217 U.S. 349, 378, 54 L. Ed. 793, 30 S. Ct. 544 (1910), the Supreme Court observed that the concept of cruel and unusual punishment "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice." Even before the rigors of the Eighth Amendment were applied to the states in Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962), the court recognized that

[t]he traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Prohibition against the wanton infliction of pain has come into our law from the Bill of Rights of 1688. The identical words appear in our Eighth Amendment. The Fourteenth would prohibit by its due process clause execution by a state in a cruel manner.

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 91 L. Ed. 422, 67 S. Ct. 374 (1947). The four dissenting Justices agreed:

Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people. . . .

. . . The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself.

(Italics ours.) Resweber, at 473-74.

More recently, the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 102-03, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), stated:

It suffices to note that the primary concern of the drafters was to proscribe " torture [s]" and other " barbar [ous]" methods of punishment. [Granucci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Cal. L. Rev. 839 (1969)], at 842. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah, 99 U. S. 130, 136 [25 L. Ed. 345] (1879) ("[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment. . ."); In re Kemmler, 136 U. S. 436, 447 [34 L. Ed. 519, 10 S. Ct. 930, 933] (1890) ("Punishments are cruel when they involve torture or a lingering death . . .").

Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e.g., Gregg v. Georgia [428 U.S. 153, 49 , 96 S. Ct. 2909 (1976)], supra, at 171 (joint opinion); Trop v. Dulles, 356 U. S. 86, 100-101 [2 L. Ed. 2d 630, 78 S. Ct. 590, 597-98] (1958); Weems v. United States, 217 U. S. 349, 373 [54 L. Ed. 793, 30 S. Ct. 544, 551] (1910). The Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . .," Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, supra, at 101; see also Gregg v. Georgia, supra, at 172-173 (joint opinion); Weems v. United States, supra, at 378, or which "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 173 (joint opinion); see also Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 [91 L. Ed. 422, 67 S. Ct. 374, 376] (1947); Wilkerson v. Utah, supra, at 136.

Although prior to 1900 hanging was the nearly universal form of execution, at the present time in the English speaking parts of the world, only four jurisdictions provide for execution by hanging: Washington, Delaware, Montana and South Africa. See Gardner, Executions and Indignities: An Eighth Amendment Assessment of the Methods of Inflicting Capital Punishment, 39 Ohio St. L.J. 96, 119 (1978); NAACP Legal Defense Fund, Death Row U.S.A. (June 30, 1980); Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (Brennan, J., concurring). These facts alone indicate execution by hanging can hardly be compatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958).

A substantial amount of information has been presented by defendants in their offers of proof, authorized by this court in its order of December 4, 1979. While there is some dispute between the experts of the State and defendants as to the pain and suddenness of a properly performed hanging, the testimony of defendants' experts is far more persuasive than that of the State. The State's factual presentation on the physiological effects of execution by hanging is contained in two brief affidavits by two pathologists, Drs. Charles P. Larson and Gale E. Wilson. Both conclude that hanging results in severance of the spinal cord and immediate unconsciousness, although Dr. Wilson qualifies "immediately unconscious" to mean "a matter of perhaps ten seconds." Although both physicians have impressive credentials and. many years' experience in forensic pathology, there is no claim or showing that either expert has participated in any research on judicial hanging. Nor does either cite any medical monographs or treatises in support of his conclusion. Dr. Larson has testified as an expert witness "several hundred times" in courts in Washington and elsewhere, but he does not say that he ever testified as an expert on what happens to the condemned person before death by hanging occurs. He witnessed three judicial hangings in 1945; as medical officer his duty was to pronounce the executed person dead. We are not told whether unconsciousness was instantaneous in any of those cases. There is no allegation that Dr. Wilson has ever witnessed an execution by hanging.

By contrast, the evidence presented by defendants is lengthy, detailed, and supported by persuasive scientific medical research. Our review of this evidence persuades us that in the great majority of cases death by hanging does involve slow, lingering death. Dr. Cornelius Rosse, chairman of the Department of Anatomy at the University of Washington School of Medicine, has reviewed the medical literature on the subject, and concludes that the common belief that death is instantaneous due to disruption of the spinal cord is incorrect in all but a very small fraction of cases. Where death is not instantaneous, its actual cause is probably strangulation or suffocation, a process that can take severed minutes.

Dr. Phillip D. Swanson, Professor of Neurology and head of that department at the University of Washington, also researched the medical literature on the subject. Dr. Swanson has testified that even if the spinal cord is severed instantaneously, this does not necessarily cause unconsciousness, although the person may lapse into unconsciousness due to lack of oxygen. Again, death would be caused by suffocation or strangulation. Moreover, in cases of less than complete severance of the spinal cord, death could take considerably longer.

Dr. Harry D. Patton, Professor and Chairman of the Department of Physiology and Biophysics at the University of Washington School of Medicine, agrees with his colleagues that there is a considerable question that judicial hanging severs the spinal cord, and adds that the nature of the characteristic fracture caused by a judicial hanging might actually provide some protection to the spinal cord by decompression. Studies of remarkably similar lesions encountered in automobile accident victims who suffered forcible high-velocity dorsiflexion of the head on the spinal column (so-called "hangman's fracture") have shown that all of the subjects survived, suggesting that such lesions do not sever the spinal cord and indeed seem to produce surprisingly little neural damage. Dr. Patton explains:

It seems logical to conclude that the true cause of death in judicial hanging is either strangulation due to tracheal occlusion or cerebral ischemia [compression of the arteries carrying blood to the brain] due to occlusion of the blood supply — or both.

Dr. Patton again emphasizes that even a clean severance of the spinal cord "does not per se cause loss of consciousness," and describes experiments where the isolated head of a cat is maintained in a conscious condition after the spinal cord has been severed. (He mentions parenthetically that such experiments are by common consent banned as inhumane in this country and that reputable scientific journals will not accept papers reporting such studies.)

Defendants have also submitted numerous eyewitness accounts of actual hangings. Clinton Duffy, onetime warden at San Quentin Prison, participated in 60 hangings. Here is a portion of his description of the first hanging at which he officiated:

The executioner put the noose over the man's head with a knot under the left ear. ... I gave the nod, OK, and he raised his hand and these men in the little room saw that and they cut the springs which sprung the trap. The man hit bottom and I observed that he was fighting by pulling on the straps, wheezing, whistling, trying to get air, and that blood was oozing through the black cap. I observed also that he urinated, defecated, and droppings fell to the floor, and the stench was terrible. I also saw witnesses pass out and have to be carried from the witness room. Some of them threw up. After a doctor had placed a stool in front of the man, he ripped his shirt open, put the stethoscope over his heart, and between eight and thirteen minutes later, the doctor pronounced the man dead by no heartbeat.

When the man was taken down and his black cap removed, Duffy testified he noticed that "big hunks of flesh were torn off" the side of his face where the noose had been, "his eyes were popped," his tongue was "swollen and hanging from his mouth" and he had turned purple.

Instances in which the victims of judicial hanging have not died instantaneously, but have suffered lingering and at times violent deaths are numerous in Washington history. Newspaper accounts of Washington executions during this century reveal that death in one case came as soon as 4 minutes, but in several cases death took 20 minutes or more. (As to the admissibility of these reports, see ER 803(16); ER 901(b)(8); Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961).

Dr. Clarence Schrag, Professor of Sociology at the University of Washington and former Director of Corrections for the Washington State Department of Institutions, described a hanging at Walla Walla:

[T]he trap door was sprung. He fell through the trap door some feet, going out of my sight since I was standing on the platform. He disappeared from my view; but when he hit the end of the rope he bounced so that his head and shoulders came back up above the floor of the platform, which was a surprise to me. He bounced several times.

He then again, contrary to what was shown in the films, engaged in gyrations. Though his ankles and wrists were bound together, there was a great deal of motion, torso twisting, which motion continued, as I recall, for perhaps five minutes; and then began to decline in frequency and amount.

After ten minutes or so I saw no further motion.

Schrag waited for what might have been a total of 20 minutes, but when he felt for the victim's pulse, he was startled by the fact that the tendons were contracted severely, and there was an irregular but strong pulse.

Grim as these accounts may be, the results can be described only as horrifying when the hanging is not properly performed. The May 10, 1910 edition of the Seattle Times described an execution in which it took the victim over 22 minutes to die because of alleged bungling by the executioner. The unfortunate man strangled to death as he pleaded pitifully with the attendants to take him up and spring the drop again. So conscious was he throughout his agony that he was able to unbuckle the straps that bound his arms and drop the straps to the ground.

A perhaps more shocking and repulsive miscalculation occurred in the execution of Grant Rio in 1951. Albert Rembolt, a former employee at the State Penitentiary at Walla Walla, witnessed the execution. He recalls that, because the rope was left too long, Rio had his neck cut badly and was partially decapitated when the trap door was opened. Nineteen minutes later Rio was pronounced dead.

The evidence is overwhelming that in the executions performed in Washington in this century death has not been instantaneous. These horror stories are not unique. Other states which earlier used hanging had the same experience. See N. Teeters, Hang By The Neck 173-81 (1967); defendants' offer of proof, item 11. Furthermore, it is conceded by the State that a properly performed execution is an art and that considerable skill is involved. It is uncontested that there are no trained hangers at the Washington State Penitentiary, nor are the prison authorities aware of any in the United States.

The medical evidence demonstrates that judicial hanging, even when performed by a competent hanger, involves the infliction of unnecessary pain, lingering torture, and slow death. The State can therefore give no assurance that hangings performed in this state in the future will involve anything but lingering and painful deaths. Under the circumstances, we find it inescapable that execution by hanging is that kind of cruel, wanton and barbarous act which offends civilized standards of decency and cannot be held constitutional under the Eighth Amendment and Const, art. 1, § 14.

In summary then, we hold: (1) The present statutory scheme for imposing the death penalty is unconstitutional; (2) under these statutes, the State may not seek and have imposed in cases of aggravated first degree murder the punishment of life imprisonment without the possibility of parole; (3) the special sentencing proceeding for imposing the death penalty does not unconstitutionally withdraw from the jury the question of the appropriate sentence; (4) RCW 10.94.020(10) (b), which requires the jury to make a prediction as to the future dangerousness of the defendant is constitutional; and (5) death by hanging violates the Eighth Amendment and Const, art. 1, § 14.

Brachtenbach, C.J., concurs as to issues I, III, and IV.