State v. Benn

Durham, J.

(concurring) — I agree with the majority opinion in substance. However, the methodology it employs in the proportionality section is both unnecessary and contrary to existing law. In effect, the majority adopts the precise analysis that was rejected in State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991), cert. denied, 113 S. Ct. 164 (1992). The result is exactly that which we have sought to avoid — endless pages of comparisons to particular cases. Especially troubling is the fact that the majority compares all cases in a given category (multiple murders). Since this is the most common type of homicide to warrant the death penalty, that means that in every future case of multiple murder, every other case will have to be similarly compared.

This is not a hairsplitting issue — it goes to the very heart of proportionality. The purpose of proportionality review is to *696avoid the systemic problems of random arbitrariness and the imposition of the death sentence based on race. Lord, at 909. In order to alleviate these problems, we search for "family resemblances", not individual matches. Lord, at 910-11. Proportionality review serves to "assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly imposed'". State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986) (quoting Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829 (1975)), cert. denied, 480 U.S. 940 (1987). We specifically search only for such broad tendencies because "[o]ur review is not intended to ensure that there can be no variation on a case-by-case basis, nor to guarantee that the death penalty is always imposed in superficially similar circumstances." Lord, at 910.

While the majority pays lip service to this concept, in practice, it analyzes 30 different cases, 4 of which were acknowledged by both sides to be dissimilar, in a fruitless and misleading attempt to consider all possible matches. All that is necessary in proportionality review is that we look for a trend, not individual case matches. To do otherwise means that the failure of a single match would indicate disproportionality and invalidate the sentence. As we concluded in Lord, requiring such precise uniformity "would effectively eliminate the death penalty." Lord, at 910. In the majority opinion, there are 22 pages devoted to this project. What will be required 10 years from now? It is not enough to say we are following Lord and Harris, and then do the opposite. The current opinion is precisely the case-by-case comparison that was specifically rejected in Lord.

Brachtenbach, Dolliver, and Andersen, JJ., concur with Durham, J.