In re the Personal Restraint of Stenson , 153 Wash. 2d 137 ( 2004 )

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Sanders, J.

(dissenting) — The majority continues to approve use of an incomplete and inaccurate database to conduct the proportionality review required by the legislature in RCW 10.95.130. As in State v. Elledge, 144 Wn.2d 62, 90-91, 26 P.3d 271 (2001) (Sanders, J., dissenting), our proportionality review is corrupted by use of an inaccurate database skewed in favor of imposing death.

¶23 As the majority acknowledged, Washington’s statutes require that trial courts submit reports on every conviction for aggravated first degree murder. Majority at 148-49 (citing RCW 10.95.120). The clear statutory intent is that we consider all such reports; otherwise the legislature would have provided for reporting of only a representative sample.

¶24 While the majority believes that the lack of the word “should” is dispositive, I believe that it clearly was not necessary for the legislature to have included the word in the statutory scheme. This is because the legislature already requires that all reports be submitted to us! The legislature can assume its statutory commands are carried out, and if they had been, there would have been no need to use the word “should.” The simple instruction to review all the reports submitted includes the presumption that all reports would have been submitted, since that is what the statutory scheme requires.

¶25 Further, due process of law under the fourteenth amendment to the United States Constitution requires that when a state enacts a criminal statute, which sets out a procedure for the imposition of a particular penalty, a defendant has a “substantial and legitimate expectation” that he will be deprived of his liberty—and in this case his life—only if the state complies with the procedural requirements of that state statute. Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980). Since the legislature mandates that this court consider all relevant reports in conducting our proportionality review, and since the majority admits we have not done so, Darold Stenson’s due process rights have been violated. This court should conduct a new proportionality review which complies with the statutory mandate and thus with the due process requirements of the Fourteenth Amendment.

¶26 I dissent.

Fairhurst, J., concurs with Sanders, J.