The Washington PostDemocracy Dies in Darkness

The state Supreme Court justice who stepped down to protest the death penalty

One of the country’s idle execution chambers. (Rick Bowmer/AP)
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The Supreme Court’s heated debate over lethal injection on Wednesday highlighted the stark divide that remains in how the justices view the death penalty. It was the first time in nearly a decade that the justices had contemplated lethal injection, the country’s primary method of execution, and their arguments were notable for the sharp tone as much as their underlying disagreements about what they were debating.

As Ken Armstrong at the Marshall Project points out, not long after these arguments wrapped up, the Washington state Supreme Court was holding a memorial service to honor one of its former justices. It seemed oddly relevant, because that justice had specifically said he was stepping down from the court two decades ago to protest the state’s use of the death penalty.

Robert F. Utter, who died last year at age 84, wrote in April 1995 that his only regret about serving on the court was a failure “to provide equal access to justice” to everybody in the state.

“I have reached the point where I can no longer participate in a legal system that intentionally takes human life in capital punishment cases,” Utter wrote in a letter explaining his decision, which you can read in full over at the Marshall Project. “We continue to demonstrate no human is wise enough to decide who should die.”

Utter is not the most high-profile judge to turn against the death penalty, of course. Just a year before Utter’s letter, former Supreme Court justice Harry A. Blackmun declared that he had reversed his position on the death penalty after almost a quarter of a century on the court. Blackmun declared that he would no longer meddle “with the machinery of death” and decried the country’s capital punishment system as “fraught with arbitrariness, discrimination, caprice and mistake.” (Blackmun retired from the court that year.)

Still, Utter’s resignation and his later comments were dramatic in a different way, a judicial swan song reached after dissenting two dozen times from cases that upheld the death penalty. His feelings on capital punishment were not with him all of his life, though, but rather were forged in his experiences as a young judge and strengthened over his years on the bench, as he later explained in a series of interviews with the Washington State Legacy Project in 2009.

In these interviews, Utter recalls that while serving as a prosecutor in King County, he asked for death sentences while working on cases. “I just felt it was part of the law,” he said. “We didn’t win those cases when I was a prosecutor in the 1950s, thank goodness.”

Utter said that his views on capital punishment could be traced back to a trial involving Don Anthony White, a young black man who had what Utter described as “all sorts of mental problems.” White had killed two people and been sentenced to death, but he was granted a new trial before Utter, who was a superior court judge at the time. Utter said White as a young man had dramatically changed while on death row, and the jury in the new trial found him guilty but spared his life.

“That really opened my eyes to the power of rehabilitation,” Utter told the Legacy Project.

However, he said, these were his personal feelings, and he said he could not dissent against the death penalty without a legal basis. “But the legal reasons against it are there in almost every case you look at,” he said. Over his nearly 23 years on the state Supreme Court, Utter said his opposition continued to grow, until he finally decided he could do more good by stepping aside than by continuing to dissent.

“There were two death penalty cases coming up in the next term,” he told the Legacy Project. “At that point I had to ask myself, ‘Am I going to do more benefit in the long term by staying on the court or by resigning and bringing the issue to the floor?'”

A majority of Americans support the death penalty, though that level of support has been consistently falling since about the time Utter stepped down. And a sizable majority of people are also pretty sure that an innocent person can be executed in the current system, an opinion that transcends race, gender and political preferences.

Washington state has carried out five executions since the U.S. Supreme Court reinstated the death penalty in 1976. It last executed an inmate in 2010, when Cal Brown, who was convicted of raping and murdering a woman, was killed by lethal injection. Utter spoke out against that execution, again stating that he felt the system remained unequal and costly.

Last year, Gov. Jay Inslee (D) announced a moratorium on executions in the state due to what he called an unequal and inconsistent system.

“There are too many flaws in the system,” Inslee said in a statement at the time. “And when the ultimate decision is death there is too much at stake to accept an imperfect system.”