State v. Pirtle

Durham, C.J.

(concurring) — "In virtually every recent death penalty case decided by this court, a different definition of proportionality has been promulgated. The resulting confusion is unacceptable.” State v. Brett, 126 Wn.2d 136, 214-15, 892 P.2d 29 (1995) (Durham, C.J., concurring). Once again, the majority feels compelled to tinker with what is perhaps the most over-analyzed area of death penalty review, this time purporting to build upon an analysis which was not adopted by a majority of this court.

In State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991), cert. denied, 113 S. Ct. 164 (1992), we articulated the "family resemblances” test. This approach determines proportionality by comparing the case under review with similar cases, recognizing that not all cases in which the death penalty has been imposed share a set of particular attributes. Lord, 117 Wn.2d at 911. This approach was followed in State v. Dodd, 120 Wn.2d 1, 838 P.2d 86 (1992), and State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105, cert. denied, 116 S. Ct. 131, 133 L. Ed. 2d 79 (1995). The departures from this approach in State v. Benn, 120 Wn.2d 631, 845 P.2d 289, cert. denied, 114 S. Ct. 382 (1993) and Brett did not garner a majority of votes. As I indicated in my concurrence in Brett, the court’s endlessly varying proportionality analysis is itself an obstacle to ensuring proportionality.

Reconsideration denied January 19, 1996.