The Mitchell Rupe Ruling Strains The Scales Of Justice

THERE are four new redemptive words on Walla Walla's Death Row: Pass the potato chips.

Eat your way off the gallows. Mitch Rupe did. His 410 pounds tipped the scales of justice in favor of corpulent killers.

He is too fat to hang. He will live for many more meals. Many more snacks. His girth has spared him from the gallows.

No one fretted over the weight of Rupe's murder victims, Tumwater bank tellers Twila Capron and Candace Hemmig, who were shot during a 1981 holdup.

Rupe cheated the noose with the help of cheddar chips, Chee-tos, Doritos, Almond Joys, Butterfingers, Snickers, Hershey Kisses, Mystic Mints, Nutty Bars, Kit Kats, Planters peanuts and cashews, Swiss Cake Rolls, striped shortbread and Oreos.

The three meals a day served in his cell totaled about 2,700 calories. No seconds. But Snack Heaven was always there.

In one week in March, he ate 20 Almond Joys. His Washington State Penitentiary inmate-store bill for the week was $73.90 - partially paid for by his job of stamping return addresses on blank envelopes. That's hardly calorie-burning work.

Prison receipts show he made only one concession to his waistline. He drank three Diet Pepsis to wash down his 20 Almond Joys.

U.S. District Judge Thomas Zilly ruled that Rupe's heft on the end of a rope would create "a significant risk of decapitation." Zilly said "such a hanging would violate basic human dignity."

Zilly did not say there is no acceptable way of hanging Rupe - only that the rope size and drop length proposed by the state were unacceptable given his weight.

The troubling part of the ruling is that it does not specify how fat is too fat. The state's manual prescribing the right length of rope based on the condemned's weight only goes to 220 pounds. Is that the new limit? Or 300? Or 400?

If triple-murderer Charles Campbell had made the same argument, he might have escaped the gallows. He was about 220 pounds when he was hanged after 12 years of milking the system dry.

The precedent of Zilly's too-heavy-to-hang ruling could cloud the fate of the nine inmates left on Death Row.

Prison officials don't have ready figures on their weights. Some could be a few cookie and candy runs away from cheating the hangman.

Forced diets without a medical reason almost certainly would trigger another round of challenges.

Attorneys for the state contended Rupe could be hanged on a shorter rope without danger of decapitation. Zilly didn't buy that.

Zilly also overturned Rupe's death sentence because jurors weren't told a key witness failed a polygraph test.

Attorney General Christine Gregoire is considering whether to appeal the decision.

If it stands, Rupe would be automatically sentenced to life in prison without parole unless prosecutors ask a new jury to re-impose the death penalty.

Rupe presumedly was too heavy to hang when he weighed into Walla Walla in 1981 at 330 pounds. The 80 pounds he put on in prison strengthened his lawyer's arguments.

State law gives condemned inmates the option to choose lethal injection. Rupe said he would refuse to make that choice. If no choice is made, hanging is the method.

That needs to be changed.

Gregoire wants the presumed method of execution reversed - making lethal injection automatic unless the condemned chose hanging. She will ask the next Legislature to do that.

The state has spent more than $300,000 in the past 18 months defending the constitutionality of hanging in three separate cases.

All but three other states have done away with hanging. It has an ugly symbolism - a throwback to frontier justice.

As long as capital punishment is the law, lethal injection should be the method of execution. The Legislature should make that a first order of business.

The endless legal arguments over hanging have not served justice. The Rupe ruling proves that beyond the shadow of a doubt.

Zilly's ruling shows a proper concern for humane execution. But its potential fallout is bizarre.

Condemned killers should not be able to eat their way out of execution.

Don Hannula's column appears Thursday on editorial pages of The Times.