NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - Washington

After the U.S. Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), the Washington Supreme Court held that the state’s death penalty statute violated the Eight and Fourteenth Amendments to the U.S. Constitution because it provided no guidance to control the sentencing authority in determining who would receive the death penalty and who would receive a sentence of life imprisonment. See State v. Baker, 81 Wash. 2d 281, 501 P.2d 284 (1972).

The Washington legislature’s 1976 amendment to the capital sentencing law attempted to correct this problem by eliminating any discretion on the part of the sentencing authority. The new law imposed a mandatory death penalty. However, in light of the U.S. Supreme Court’s opinion in Woodson v. North Carolina, 428 U.S. 280 (1976), the Washington Supreme Court held the amended statute unconstitutional. See State v. Green, 91 Wash. 2d 431, 588 P.2d 1370 (1979).  

In 1981, the legislature enacted the current capital punishment scheme which provides for a bifurcated sentencing proceeding where the jury hears all evidence relevant to mitigation.

Woodson v. North Carolina, 428 U.S. 238 (1976) (declaring mandatory death sentences unconstitutional).

Furman v. Georgia, 408 U.S. 349 (1972) (holding complete, unguided discretion capital punishment statute unconstitutional).

Brown v. Lambert, 431 F.3d 661 (9th Cir. 2005) (holding that under Campbell v. Kincheloe, the Washington death penalty statute is facially valid and adequately channels and guides jury sentencing discretion with respect to evidence of collateral convictions).

Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987) (holding death penalty statute constitutional against attacks of unguided jury discretion, unbridled discretion of prosecutor in seeking the death penalty, and mandatory presumption in favor of death penalty), cert. denied, 488 U.S. 948 (1988).

State v. Green, 91 Wash. 2d 431, 588 P.2d 1370 (1979) (holding Washington mandatory death penalty statute unconstitutional), reconsidered on other grounds, 94 Wash. 2d 216, 616 P.2d 628 (1980).

State v. Baker, 81 Wash. 2d 281, 501 P.2d 284 (1972) (holding Washington death penalty statute, which leaves imposition of penalty to unguided discretion of jury, violates constitutional prohibition against cruel and unusual punishment).

Wash. Rev. Code § 10.95.050 (Supp. 2006) (providing special sentencing hearing for aggravated first degree murder).

Aggravated first degree murder and treason are capital crimes in Washington. If found guilty of aggravated first degree murder, a defendant receives either a death sentence or a sentence of life imprisonment without the possibility of release. Under Washington law, mentally retarded or juvenile persons cannot be sentenced to death. Furthermore, in 2002 the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the Eighth Amendment (see § 1.6), and in 2005 the Court held in Roper v. Simmons, 543 U.S. 551 (2005), that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time of the offense.

Roper v. Simmons, 543 U.S. 551 (2005) (holding that Eighth and Fourteenth Amendments forbid imposition of death penalty on those who were under the age of 18 at time their crimes were committed). 

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment). 

State v. Furman, 122 Wash. 2d 440, 858 P.2d 1092 (1993) (holding that a person under eighteen years old when crime committed cannot be sentenced to death).

Wash. Rev. Code § 10.95.030 (2002) (providing sentences for aggravated first degree murder, providing for death penalty if warranted by special sentencing hearing; prohibiting death penalty if defendant mentally retarded).

An indigent capital defendant has a right to court-appointed counsel at trial, on appeal, and for the first postconviction relief petition. The defendant may also request payment of investigative, expert, and other services necessary for an adequate defense.

In 1997, the Supreme Court of Washington adopted rules for the appointment of counsel in death penalty cases. The trial court appoints at least two attorneys for trial representation in a capital case. The supreme court, who also appoints counsel for personal restraint petitions, appoints two attorneys for the direct appeal. The supreme court will not appoint trial counsel for postconviction representation. The court will appoint appellate counsel for postconviction representation only if appellate counsel and petitioner request continued representation. The supreme court maintains a list of counsel who meet capital case competency standards. The trial court must make findings of fact if good cause is found for not appointing list counsel. In appointing counsel on appeal, the supreme court will consider the list, but will have final discretion in the appointment of counsel.

Wash. Rev. Code § 4.88.330 (2002) (providing payment by state for appellate review counsel for indigent defendant).

Wash. Rev. Code § 7.36.250 (Supp. 2006) (providing waiver of filing fees and costs for indigent in habeas proceeding).

Wash. Rev. Code § 10.73.150 (2002) (providing indigent capital defendant’s right to counsel on first appeal and first postconviction petition; right to counsel on second and subsequent postconviction petitions if collateral attack not barred).

Wash. R. App. P. 16.25 (providing for appointment of counsel for personal restraint petition in capital cases; supreme court roster of death penalty qualified counsel).

Wash. Super. Ct. Spec. Proc. Crim. R. 2, as amended effective Jan. 1, 2003 (providing for appointment of counsel in capital cases; supreme court roster of death penalty qualified counsel).

The state superior court, which exercises original jurisdiction over civil and criminal cases, tries all capital cases. Capital trials have two phases: a guilt phase and a penalty phase. The state must file a notice of intent to pursue a capital sentence within thirty days of arraignment. Before filing the notice, the state must determine whether sufficient mitigating circumstances exist to merit leniency.

During the guilt phase, the jury determines whether the defendant is guilty of aggravated first degree murder. Aggravating circumstances are: (1) murder of a law enforcement officer, (2) defendant was imprisoned at time of murder, (3) murder for financial gain, (4) solicited murder, (5) murder to maintain status in organization, (6) drive-by shooting, (7) murder of judge, probation officer, or district attorney, (8) murder to conceal crime or identity, (9) multiple murder victims, and (10) felony murder. A defendant also commits aggravated murder when the victim has a restraining order against the defendant or when the victim is a family or household member and the defendant has a history of violence against the victim. If the jury finds at least one aggravating circumstance, it convicts the defendant of aggravated first degree murder. The defendant is then subject to a separate sentencing proceeding to determine whether there are sufficient mitigating circumstances to merit leniency.

State v. Thomas, 150 Wash. 2d. 821, 83 P.3d 970 (2004) (reversing a conviction for aggravated first degree murder and the death sentence, the court agreed with the defendant’s contention that the jury instruction and the aggravating factors special verdict form given did not require the jury to find that defendant in particular had the intent to murder or that the aggravating factors specifically applied to him as opposed to his accomplice, and held that these instructional errors were not subject to a harmless error analysis for purposes of upholding a death sentence because to do so would be to find facts that increase the sentence beyond the statutory maximum).

State v. Marshall, 144 Wash. 2d 266, 27 P.3d 192 (2001) (vacating guilty plea by defendant to aggravated first degree murder after which death sentence was imposed, and holding that where defendant moves to withdraw guilty plea on asserted basis of defendant’s incompetence when plea was made, trial court must either grant motion to withdraw guilty plea or convene formal competency hearing).

In re Brett, 142 Wash. 2d 868, 16 P.3d 601 (2001) (reversing convictions for aggravated first degree murder and felony murder and vacating death sentence based on ineffectiveness of defense counsel at guilt and penalty phase of trial, where counsel knew or should have known of petitioner’s significant medical and mental conditions, substantial medical opinion was available at time of trial to support defense theory, and counsel failed to conduct reasonable investigation into medical and mental conditions).

State v. Roberts, 142 Wash. 2d 471, 17 P.3d 713 (2001) (holding jury instruction unconstitutional that did not require a finding that the defendant personally caused the victim’s death or was a major participant in the homicidal acts).

State v. Finch, 137 Wash. 2d, 975 P.2d 967 (1999) (holding that court abused discretion shackling defendant during a capital sentencing hearing).

State v. Brown, 132 Wash. 2d 529, 940 P.2d 546 (1997) (holding that qualifying jurors for a death case does not violate state constitution), cert. denied, 523 U.S. 1007 (1998). 

State v. Clark, 129 Wash. 2d 805, 920 P.2d 187 (1996) (holding personal service of notice of intent to seek death penalty not required; service required in accordance with Civ. R. 5, governing service and filing of pleadings).

State v. Brett, 126 Wash. 2d 136, 892 P.2d 29 (1995) (holding robbery need not be completed to be used as an aggravating factor; aggravating factors are sentencing enhancements, not crimes; first degree murder is not a lesser included offense of aggravated first degree murder; state’s reliance on multiple aggravating circumstances constitutional), cert. denied, 516 U.S. 1121 (1996).

State v. Ford, 125 Wash. 2d 919, 891 P.2d 712 (1995) (en banc) (holding trial court did not abuse discretion continuing arraignment in first degree murder case where defendant wanted to plead guilty but prosecutor indicated that it needed to disclose exculpatory evidence, and then allowing prosecutor to amend information to charge aggravated first degree murder).

State v. Dearbone, 125 Wash. 2d 173, 883 P.2d 303 (1994) (stating that good cause to extend thirty-day notice period requires proof of an external impediment to compliance; substantial compliance with terms of statute insufficient).

State v. Ortiz, 119 Wash. 2d 294, 831 P.2d 1060 (1992) (stating second degree felonymurder is not a lessor included offense of aggravated murder).

State v. Jeffries, 105 Wash. 2d 398, 717 P.2d 722 (holding, in regard to aggravating circumstance pertaining to concealment of crime, that specific crime is not an element of aggravated murder; it need not be stated nor proved; holding “crime” and “plan or scheme” are not unconstitutionally vague), cert. denied, 479 U.S. 922 (1986).

State v. Baruso, 72 Wash. App. 603, 865 P.2d 512 (holding conviction for murder not required to support jury’s finding of aggravated circumstance of more than one victim in a “common scheme or plan”), review denied, 124 Wash. 2d 1008 (1994).

Wash. Rev. Code § 10.95.020 (2002) (requiring at least one aggravating circumstance for finding defendant guilty of aggravated first degree murder; enumerating aggravating circumstances).

When a jury convicts the defendant of aggravated murder, a separate sentencing proceeding occurs where the jury hears evidence and determines whether the defendant should receive a death sentence. The court with the consent of the parties has discretion to waive the jury at the sentencing hearing. If the original jury is unavailable, the court will convene a new jury.

Before the guilt phase of the trial begins, the court requires the state and the defense to provide discovery that they anticipate offering at the sentencing proceeding. However, upon a showing of cause, the trial court has discretion to defer disclosure of penalty phase evidence until completion of the guilt phase.

The Washington Rules of Evidence apply at sentencing. If the guilt phase jury is not the sentencing jury, then the defense and the state may reintroduce evidence concerning the facts and circumstances of the murder. 

At the end of the sentencing hearing, the jury must return a special verdict on the following question: “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” If a unanimous jury answers affirmatively, the defendant receives a sentence of death.

As a matter of first impression, the Washington Supreme Court ruled that the trial court need not conduct a colloquy to ensure that a capital defendant’s decision to waive the right to present mitigating evidence was knowing, voluntary and intelligent. The court reasoned that the decision is akin to other trial strategy decisions and thus, discussion with counsel is all that is required. State v. Woods, 23 P.3d 1046 (2001).

Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) (holding jury instruction which required unanimous “yes” or “no” answer to mitigation question violates due process), cert. denied, 507 U.S. 951 (1993).

In Re Woods, 154 Wash. 2d 400, 114 P.3d 607 (2005) (holding defense counsel were not deficient in failing to present a mitigation case during the penalty phase where counsel did investigate mitigation and were ready to put forth mitigation evidence but defendant steadfastly objected to the presentation of mitigation evidence, and counsel exercised reasonable professional judgment in abiding by defendant’s wishes).

In Re Davis, 152 Wash. 2d 647, 101 P.3d 1 (2004) (holding that the failure of a capital defendant’s attorney to object to defendant’s being shackled during the penalty phase of the trial constituted ineffective assistance of counsel requiring remand for a new penalty phase trial, even though the jury’s opportunity to observe defendant in shackles was partial and fleeting, since the focus in the penalty phase was not on guilt, but, rather, on defendant’s character and future dangerousness).

State v. Clark, 143 Wash. 2d 731, 24 P.3d 1006 (2001) (reversing death sentence because introduction of prior conviction went beyond scope of RCW 10.95.060(4) and because evidence was unduly prejudicial), cert. denied, 534 U.S. 1000 (2001).

State v. Woods, 143 Wash. 2d 561, 23 P.3d 1046 (2001) (holding that the trial court need not conduct a colloquy to ensure that a capital defendant’s decision to waive the right to present mitigating evidence was knowing, voluntary and intelligent), cert. denied, 534 U.S. 964 (2001).

In re Brown, 143 Wash. 2d 431, 21 P.3d 687 (2001) (holding that claim of budgetary constraints did not support finding of cruel and unusual punishment where petitioner was provided at state expense services of three attorneys and four experts to assist in preparation of defense against imposition of death penalty).

State v. Gentry, 125 Wash. 2d 590, 888 P.2d 1105 (following U.S. Supreme Court’s Payne decision in holding no per se state constitutional bar to victim impact evidence), cert. denied, 516 U.S. 843 (1995).

State v. Bartholomew, 101 Wash. 2d 631, 683 P.2d 1079 (1984) (holding that state due process clause requires application of rules of evidence at sentencing).

Wash. Rev. Code § 10.95.060 (2002) (providing for admission of evidence at sentencing proceeding, jury deliberation).

Wash. Rev. Code § 10.95.080 (2002) (providing for imposition of sentence upon sentencing jury’s verdict).

Wash. Super. Ct. Spec. Proc. Crim. R. 4 (providing discovery in death sentence proceeding).

The guilt-phase jury considers circumstances in aggravation and in mitigation of a death sentence. The sentencing-phase jury considers whether there are sufficient mitigating circumstances to merit leniency.

Wash. Rev. Code § 10.95.020 (2002) (defining aggravated first degree murder as first degree murder and at least one enumerated aggravating circumstance).

In answering the sentencing interrogatory, the jury may consider any relevant factors including but not limited to: (1) prior criminal history, (2) extreme mental disturbance when murder committed, (3) defendant’s age, (4) victim’s consent, (5) defendant’s participation compared to co-defendant’s participation, (6) duress, (7) incapacity to appreciate wrongfulness of actions and (8) likelihood that defendant will pose a danger to others in the future.

State v. Davis, 141 Wash. 2d 798, 10 P. 3d 977 (2002) (finding jury could have found that there was not sufficient evidence to merit leniency despite the introduction of mental incapacity by physiologists and a difficult childhood ).

State v. Elmore, 139 Wash. 2d 250 (1999) (affirming the constitutionality of RCW 10.95.060(4) rejecting the defendant’s argument that the instructions limited the jury to find mitigating evidence that only related to the crime itself). 

State v. Sagastegui, 135 Wash. 2d 67, 954 P.2d 1311 (1998) (stating a competent defendant constitutionally entitled not to present any mitigating evidence at sentencing; absence of mitigating evidence does not preclude mandatory appellate review).

State v. Brett, 126 Wash. 2d 136, 892 P.2d 29 (1995) (holding language “jury may consider any relevant factors” is not arbitrary and capricious), cert. denied, 516 U.S. 1121 (1996).

The Washington Supreme Court has jurisdiction over direct appeals of death penalty cases and also conducts a mandatory death sentence review. To facilitate this review, the superior court provides an information report to the supreme court, which includes: (1) personal and background information about the defendant, (2) procedural and substantive information about the trial and sentencing proceeding, (4) information about the victim, and (5) information about defendant’s counsel. The trial court prepares this report after receiving input from both parties. 

The supreme court consolidates the mandatory sentencing review and direct appeal. On mandatory review, the supreme court must determine: (1) whether sufficient evidence supports the death verdict, (2) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, (3) whether the sentence is the result of passion or prejudice, and (4) whether the defendant was mentally retarded.

At least thirty days prior to the commencement of the capital trial, the defense must notify the prosecution if it intends to raise the defendant’s mental condition at the sentencing hearing. If the defense intends to raise the defendant’s mental condition, a mental expert designated by the prosecution examines the defendant. The expert’s results are disclosed to the prosecution only after the jury returns a guilty verdict and defendant elects to proceed with a mentally ill sentencing defense.

The parties may file briefs and present oral argument to the supreme court in death sentence reviews. If the supreme court invalidates the sentence based upon insufficient evidence, a proportionality analysis, or a finding of passion or prejudice, the court remands the case to the trial court for resentencing. The court has one year to make a determination and file an opinion on the mandatory sentence review.

State v. Elledge, 144 Wash. 2d 62, 26 P.3d 271 (2001) (holding that defendant’s waiver of right to directly appeal death sentence was made “knowingly, voluntarily, and intelligently,” despite absence of expert testimony as to defendant’s competency to make waiver, where defendant was questioned by counsel and trial court concerning choice to accept death sentence and his answers demonstrated appreciation of consequences of that decision; rejecting argument that special counsel be appointed to investigate and present mitigating evidence).

State v. Brett, 126 Wash. 2d 136, 892 P.2d 29 (1995) (upholding statutory appellate proportionality review as constitutional; stating purpose of review is to provide additional assurance that sentence is not disproportionate, rather than to ensure proportionality in the first instance), cert. denied, 516 U.S. 1121 (1996).

State v. Dodd, 120 Wash. 2d 1, 838 P.2d 86 (1992) (holding capital defendant can waive right of general review but cannot waive statutory review of death sentence).

Wash. Rev. Code § 2.06.030 (2002) (providing for appellate jurisdiction over death cases).

Wash. Rev. Code § 10.95.100 (2002) (providing supreme court mandatory review of death sentence).

Wash. Rev. Code § 10.95.120 (2002) (requiring trial court to provide information report to supreme court in aggravated murder cases).

Wash. Rev. Code § 10.95.130 (2002) (setting forth consolidation of sentencing review and appeal; briefing and oral argument; substance of sentencing review).

Wash. Rev. Code § 10.95.140 (2002) (providing for remand upon supreme court decision).

Wash. Rev. Code § 10.95.150 (2002) (providing one-year deadline for supreme court to file opinion on mandatory sentence review).

Wash. R. Super. Ct. Proc. Crim. 6 (requiring counsel to submit proposed questionnaires to trial court).

The Washington Supreme Court established by rule a single procedure, a personal restraint petition, for obtaining collateral relief in the appellate courts. This petition replaces all postconviction common law remedies in the court of appeals and the supreme court. The supreme court has original jurisdiction over personal restraint petitions in capital cases.

Habeas relief is still available through a petition to the superior court, although the superior court may transfer such a habeas petition to the appellate court for consideration as a personal restraint petition. 

A petitioner must file a collateral relief petition within one year after the judgment becomes final. This limitation period is not applicable if the petitioner alleges: (1) newly discovered evidence, (2) unconstitutional charging statute, (3) double jeopardy, (4) insufficient evidence at trial, (5) illegal sentence, or (6) significant retroactive change in the law.

Petition of Runyan, 121 Wash. 2d 432, 853 P.2d 424 (1993) (holding one-year statute of limitation for filing collateral relief petition does not violate state or federal equal protection clauses).

In the Matter of Keene, 95 Wash. 2d 203, 662 P.2d 360 (1981) (holding conviction may not be collaterally attacked on a nonconstitutional ground which could have been raised on appeal).

Wash. Rev. Code § 10.73.090 (2002) (permitting one-year deadline for collateral petition).

Wash. Rev. Code § 10.73.100 (2002) (enumerating exceptions to one-year statute of limitation).

Wash. R. App. P. 16.3–16.15, 16.25–16.27 (providing personal restraint petition procedures generally; special procedure in capital cases).

Wash. R. App. P. 16(3)(c) (providing Supreme Court with exclusive original jurisdiction in capital personal restraint proceedings).

Washington Rules of Appellate Procedure establish procedures for obtaining collateral relief by way of a personal restraint petition. Appellate Rule 16.4(c) provides personal restraint relief on the following grounds: (a) lack of jurisdiction, (b) violation of state or federal constitution, (c) existence of new material facts, and (d) significant retroactive change in the law.

The supreme court chief justice initially reviews a capital personal restraint petition to determine whether the court can dispose of the petition based on the record or whether the court must remand the petition for a determination on the merits or for a limited hearing. If the court remands the petition for further findings, a superior court in the county of conviction that was not involved in the original proceeding holds a hearing and forwards its findings of fact to the supreme court. 

If the chief justice does not dismiss the petition as frivolous or remand it to the superior court for a determination on the merits, a panel of supreme court justices decides the petition.

Wash. R. App. P. 16.27 (addressing investigative and expert fees in capital personal restraint petitions).

The state’s appellate courts have original discretionary jurisdiction in habeas corpus cases and consider all habeas petitions to be personal restraint petitions. The superior court shares concurrent original jurisdiction of habeas corpus cases. Although the superior court has discretion to transfer a habeas petition to the appellate court, it is not required to do so.

The only grounds for habeas relief are violations of the state or federal constitution. As in personal restraint petitions, a one-year statute of limitation applies to writs of habeas corpus.

Toliver v. Olsen, 109 Wash. 2d 607, 746 P.2d 809 (1987) (holding superior court shares concurrent original jurisdiction of habeas proceeding with appellate courts; Washington Superior Court Criminal Rule 7.8(c)(2), which allows superior court to transfer motion for vacation of judgment to appellate court to be considered as a personal restraint petition, applies to habeas petitions).

Wash. Rev. Code § 7.36.040 (2002) (providing original jurisdiction over habeas corpus).

Wash. Crim. R.7.8(c)(2) (providing for superior court’s discretion to transfer habeas petition to appellate court).

A superior court decision in a personal restraint proceeding that is transferred for a merits determination is reviewable to the same extent as any other trial court decision. A habeas determination is also reviewable; however, there is no express statutory provision pertaining to review of collateral proceedings in capital cases.

The appellate court will not consider a subsequent personal restraint petition unless the petitioner certifies that he or she has not filed a previous petition on similar grounds and shows good cause why he or she did not raise the new grounds in a previous petition.

Generally, a defendant must exhaust his or her appeal before seeking collateral remedies. However, a petitioner may pursue a constitutional claim if the constitutional error attributed to petitioner’s actual and substantial prejudice.

In re Reismiller, 101 Wash. 2d 291, 678 P.2d 323 (1984) (holding failure to raise constitutional claim on appeal does not automatically bar claims in personal restraint petition; to overcome bar, must demonstrate “actual and substantial prejudice”).

In re Keene, 95 Wash. 2d 203, 622 P.2d 360 (1980) (holding a conviction may not be collaterally attacked upon nonconstitutional ground which could have been raised on appeal but was not).

Wash. Rev. Code § 10.73.140 (2002) (limiting collateral attack as to subsequent petitions).

After the state supreme court affirms a death sentence, it remands the case to the superior court for issuance of a death warrant. The trial court judge signs the warrant and directs it to the superintendent of the state penitentiary. The superior court sets the date of execution between thirty and ninety days from the date of the supreme court remand. Lethal injection is the primary method of execution; however, the inmate may choose execution by hanging.

Washington allows up to seventeen witnesses to an execution. An interested witness, who is required to submit an application to the superintendent of prisons, must be a member of the media, the judiciary, the victim’s family, or the defendant’s family. The superintendent compiles a list of witnesses which is certified by the superior court.

Campbell v. Wood, 18 F.3d 662 (9th Cir.) (execution by hanging is not cruel and unusual punishment), cert. denied, 511 U.S. 1119 (1994).

Wash. Rev. Code § 10.95.140 (2002) (providing affirmation of sentence; remand for execution).

Wash. Rev. Code § 10.95.180 (2002) (providing for lethal injection, or, at election of defendant, hanging).

The clerk of the supreme court grants a stay of execution upon request of a petitioner filing a first personal restraint petition. The en banc court grants stays pursuant to subsequent petitions only upon a showing that the subsequent petition is not barred by state law or supreme court rule. When a stay issued by any court of competent jurisdiction is lifted, a new execution date is automatically set by the department of corrections at thirty days after entry of the order lifting a stay.

In re the Personal Restraint Petition of Lord, 123 Wash. 2d 737, 870 P.2d 964 (1994) (holding order lifting stay is not inherent in the denial of a personal restraint petition; such order is entered separately and simultaneously with a “certificate of finality”).

State v. Davis, 6 Wash. 2d 696, 717, 108 P.2d 641 (1940) (stating courts possess an inherent power, independent of statutory authority, to act upon a showing of supervening insanity, and, if necessary, to issue a stay of execution to permit a proper and adequate investigation).

Procedures for determining whether a defendant is competent to be executed are set out in State v. Harris, 114 Wash. 2d 419, 789 P.2d 60 (1990). The Harris court urged the state legislature to address postconviction competency issues in capital cases. However, the legislature has not addressed these issues.

State v. Harris, 114 Wash. 2d 419, 789 P.2d 60 (1990) (setting forth procedures to be followed when capital prisoner’s mental state at issue).

Clemency and pardoning powers are vested in the governor. After a recommendation from the clemency and pardons board, the governor may commute a death sentence only to life imprisonment without possibility of parole. The clemency and pardons board may not recommend clemency without first conducting a hearing, of which the prosecuting attorney must be notified.

Wash. Rev. Code § 9.94A.885 (2002) (providing for clemency and pardons board; petitions for review and commutation of sentences and pardons).

Wash. Rev. Code § 10.95.090 (2002) (setting forth sentence if death sentence commuted).