Public defenders in King County have long voiced concern over the state’s use of the death penalty, contending it’s a deeply flawed and arbitrary form of punishment. Now, thanks to Gov. Inslee’s decision last month to place a moratorium on executions, an issue that has gripped the public defense community for decades is getting the kind of public attention it deserves.

Why do I and my colleagues consider the death penalty system broken beyond repair?

First, racial disparity permeates the use of capital punishment, both in Washington and across the country. Since 1976, 20 white defendants have been executed for the murder of a black person in the United States, while 269 black people have been executed for the murder of a white person. In Washington, nine people are currently on death row, four of whom are African-American. That’s nearly 50 percent, in a state where African-Americans comprise 4 percent of the population.

Second, no system of justice is flawless, but the price of a mistake when it comes to capital punishment is greater than we, as a civilized and democratic society, should bear. Since 1973, according to the Death Penalty Information Center, more than 140 men on death row have been exonerated, one of them from Washington state. At least 10 people, according to the organization, have been executed despite compelling evidence of innocence.

Finally, countless studies have shown that capital punishment is increasingly an arbitrary sanction – a punishment based not on some objective measure of the alleged crime but on geography, the beliefs of individual prosecutors and budgetary concerns. Currently, for instance, three death penalty cases are under way in King County, but Yakima County hasn’t prosecuted one since 1989 – and not for a lack of opportunity. (A family of three was bludgeoned to death in Yakima in 2011.) What’s more, several of the state’s most notorious killers have been sentenced to life in prison without parole (Gary Ridgeway, for instance, who was convicted of murdering 49 women), while others who committed crimes not nearly as heinous have been executed.

Just how arbitrary is capital punishment in Washington state? Consider the words of State Supreme Court Justice Mary Fairhurst from a 2012 opinion: “One could better predict whether the death penalty will be imposed on Washington’s most brutal murderers by flipping a coin than by evaluating the crime and the defendant.”

As Gov. Inslee noted when he announced his moratorium on executions, the paramount duty of the state is ensuring equal justice under the law. When the death penalty is applied arbitrarily, when geography and budgets – not the brutality of the crime – dictate its use, “equal justice” becomes, at best, a hollow and meaningless phrase.

This debate is hardly academic for us in public defense. King County’s Department of Public Defense currently has eight attorneys assigned to three aggravated murder cases where the prosecutor is seeking the death penalty instead of life in prison without parole. These are the most serious and complex cases a public defender can take on – and ones with the most significant ramifications and the highest public costs. Every motion, every legal maneuver, gets scrutinized at the appellate level, meaning the attorney has to get it right the first time – or face a potential reversal, a much costlier proposition.

I welcome a discussion about our current criminal statutes. And I applaud the governor for giving us the time-out we need to take a closer look at how the death penalty – the ultimate criminal sanction – plays out in Washington state. According to state statute, the presumed sentence for aggravated murder is life in prison without the possibility of release. My hope is that a thoughtful conversation will lead many to realize that life imprisonment provides both justice and protection and that capital punishment is no longer a humane or effective response to violence in our community.

This commentary  was posted on Crosscut, a Seattle-based online news source, on March 11.

Benjamin Kaplan understands why the kids he works with no longer trust adults. By the time they enter his world, most have been abused, neglected or mistreated countless times by the adults who were supposed to keep them safe. 

So if he tells a young offender he’ll call on Tuesday, he makes sure he calls on Tuesday. He doesn’t say “see you later” unless he really means he’ll see that teen later. And he tries to view his young clients for who they are in the moment – a traumatized kid in a bad situation – not for what they’ve done.

"A lot of what I do is simply about building trust,” he said. “I try to establish a relationship with them."

Kaplan works with juvenile offenders as a mitigation specialist for the Department of Public Defense, a position similar to that of a social worker in that he helps his clients get much-needed services. His position is called mitigation specialist, however, because of another important role he plays: He takes a close look at what led that young person into the criminal justice system – the “mitigating circumstances” the attorney presents to the court to secure the best legal outcome for the client.

Many of his clients, for instance, have been charged with a sexual offense – from indecent exposure to molestation to rape. He ferrets out the teen’s history, discovers a troubled past and then uses that information to advocate for treatment rather than incarceration.

“The majority of these kids are not criminally inclined. They’re poorly socialized and don’t know how to express themselves,” Kaplan said. Labeling them a sex offender at a young age is tantamount to marking them with a scarlet letter for life. “And if we throw someone away at 13, what does that say about us as a society?” he asked.

Kaplan, a graduate of the University of Oregon, has been doing this kind of work for nearly a decade, operating out of a small office at Society of Counsel Representing Accused Persons, a public defense agency that’s now a division within DPD. He’s a seasoned professional who has seen a lot of tragedies – young people charged with murder and rape, kids living on the streets because of abuse at home, teenagers who have turned to prostitution. His style is matter of fact and no-nonsense. “I can talk about sex offenses all day long,” he joked.

But Kaplan, a lanky man who rides his bike from his home near Carkeek Park every day, hardly seems jaded. Indeed, he embraces his job because of his deep belief that people can change and his profound respect for the young people he works with – kids he sees as survivors trying to find their way through a turbulent world. He recalled a 16-year-old girl arrested for murder after she stabbed and killed a man during a drunken rage. She was working as a prostitute; he was her customer.

“By the time she was 16, she’d experienced enough trauma for 10 lifetimes,” he said. “People would say, ‘She’s got a wall built up around her.’ I saw her as a survivor. She had some real skills – they just weren’t pro-social skills.”

Kaplan measures success in increments, in small victories that might be lost on others. He has seen teens get back into high school, get treatment for their sexual deviancy, attain 30 days of sobriety. He’s also built relationships. The girl who murdered her customer is now an adult, and while she’s still making some bad choices, she’s staying in touch with Kaplan, calling him about once a year to tell him how she’s doing.

“Can I ask for more than that?” he asked.

“You can’t control how things will go,” he added. “You just plant seeds along the way and hope for the best.”

Lisa Daugaard, a longtime public defender with a rich history in advocacy and civic affairs, was recently named the deputy director of the Department of Public Defense.

She comes to DPD from The Defender Association Division, where she has served as deputy director since 2007. Lisa is a graduate of Yale Law School; she also has a master’s in government from Cornell University. After she obtained her J.D. in 1995, Lisa went to work for The Defender Association, where she handled misdemeanor and felony work, represented hundreds of WTO co-defendants, and helped to launch TDA’s Racial Disparity Project, a highly regarded project that uses policy advocacy, litigation, community organizing and other education to reduce racial bias in the criminal justice system. She also helped to develop LEAD (Law Enforcement Assisted Diversion), which has been hailed as a model for low-level drug offenders and is being replicated in other cities.

Lisa is working closely with Dave Chapman, the County’s Public Defender, on all aspects of running the new Department of Public Defense.

Eileen Farley, an accomplished attorney who headed up the Northwest Defenders Association for more than a decade, is about to take on what will likely be the assignment of a lifetime. She’s been selected to serve as the supervisor overseeing public defense services in Mount Vernon and Burlington in the wake of a federal lawsuit that found the two cities routinely failed to provide adequate defense to indigent clients facing misdemeanor criminal charges.

U.S. District Court Judge Robert Lasnik’s decision, issued last December, required the two cities to hire a supervisor to ensure their defense system complies with constitutional standards. Both parties in the suit – ACLU and the two cities – agreed to ask Eileen to play this important role. She starts her new position in April.

Eileen became the director of the Northwest Defenders Association, a Seattle-based public defense firm, in 2002. Last year, the agency became a division within the new Department of Public Defense, and Eileen served as one of the department’s division directors, helming the Northwest Defenders Division.

Over the course of her career, she’s been a leader in judicial reform and criminal defense work. She co-wrote the first two editions of “Washington Criminal Practice in Courts of Limited Jurisdiction,” served on the Washington State Sentencing Guidelines Commission and is currently a member of the Washington State Bar Association’s Committee on Public Defense and the state court system’s Interpreter Commission.

Serving meals to homeless people brings several employees closer to DPD's clients

On a blustery Saturday night last month, seven volunteers served a home-cooked meal to 150 homeless men and women at Operation Nightwatch, a ministry located in Seattle. The volunteers included stalwarts in the Department of Public Defense as well as their relatives – DPD Division Director Donald Madsen and his wife, Chief Justice Barbara Madsen, DPD Senior Staff Attorney Jonathan Newcomb and his daughter Natalie, DPD Seattle Municipal Court Supervisor Karen Murray and DPD financial controller Anne Dolan and her husband Cary.

As that night’s coordinator, Karen had checked the kitchen pantry a few days before to decide what donated food items would be used to prepare the night’s meal. The menu was simple: grilled cheese sandwiches, along with garden vegetable and chicken noodle soup. All told, more than 250 sandwiches were distributed that night. 

This wasn’t the first time employees from the Associated Counsel for the Accused, now a division within the county’s Department of Public Defense, stepped up to serve meals to homeless residents. ACA began volunteering with Operation Nightwatch four years ago, part of a conscious effort to channel the firm’s volunteer efforts toward those activities that directly touched the lives of many of their clients. 

Pam Pasion, ACA’s Assistant Drug Court Supervisor, brought Operation Nightwatch to ACA’s attention after she met with Nightwatch staff to discuss some of the unmet needs ACA volunteers could fulfill. She quickly saw that the populations Operation Nightwatch served were some of the same people who entered the criminal justice system due to ongoing issues of substance abuse, mental illness or physical and emotional abuse – a population that mostly goes unnoticed because they’re homeless. Operation Nightwatch is a nighttime ministry whose mission is to provide the homeless with shelter and food. Those in need are treated with respect and dignity by Nightwatch staff and volunteers, and, for a window of time, they become visible.

Since Pam introduced ACA to Operation Nightwatch, ACA staff have volunteered 21 times, and they now know a thing or two about the needs of the organization’s clients. As a result, ACA volunteers handed out not only home-cooked meals on that rainy February night but also dry socks and toiletry kits – items donated by dozens of ACA employees.

These efforts are in keeping with the mission of ACA and now the Department of Public Defense, which seeks to provide high-quality legal representation to clients and to do so with a profound respect for their dignity and independence and an understanding of what’s driving their criminal behavior. Although the clients’ names change, the stories are often familiar, revealing histories of chemical abuse, physical abuse, post-traumatic stress disorder, mental illness and sometimes homelessness. And ACA is not the only division that undertakes such efforts. DPD’s three other divisions – The Defender Association Division, Society of Counsel Representing Accused Persons Division and the Northwest Defenders Division – have also embraced a range of volunteer activities, efforts that bring them closer to the needs of their clients.

The Department of Public Defense is increasingly focused on holistic defense – a kind of practice that recognizes clients have not only legal needs but also a wide range of social service needs. The goal is to provide excellent legal representation as well as seamless access to social supports, so that the client doesn’t quickly re-enter the legal system. And to do that well, a public defender needs to see the whole person and garner his or her trust. Experiences like those with Operation Nightwatch do both. They underscore what many in public defense know full well – that by meeting clients on their turf and in their communities, they’ll begin to establish relationships far stronger than those forged only in the courtroom.

Photo: Karen Murray, left, checks the soup, while others make sandwiches. In the foreground at far right is Don Madsen. Photo Credit: Jonathan Newcomb