Washington state’s death penalty is unconstitutional, the state’s supreme court ruled unanimously on Thursday, with justices citing concerns about racial bias and the arbitrary imposition of the penalty.
“The death penalty, as administered in our state, fails to serve any legitimate penological goal,” Washington Chief Justice Mary Fairhurst wrote. As such, she continued, it violated the state’s constitution.
The eight inmates currently on death row in the state will have their sentences converted to life imprisonment, the court ruled.
Washington is the 20th state, along with the District of Columbia, to have no death penalty law. Even among states with the death penalty, however, its use is down — both in terms of new death sentences and executions. Three of the six states with the largest death-row populations — California, Pennsylvania, and North Carolina — have not carried out an execution in more than a decade.
Given the current makeup of the Supreme Court — specifically, Justice Anthony Kennedy’s departure from the court — it is likely that advocates to end the death penalty increasingly will turn to state courts, as well as governors and legislatures, to seek decreased use of the death penalty across the country.
In addressing the arguments advanced by Allen Eugene Gregory — sentenced to death for a 1996 rape, robbery, and murder of a woman in her home — the Washington Supreme Court looked at the expert report commissioned by Gregory looking at “the effect of race and county on the imposition of the death penalty.” Among the report’s conclusions was one that “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.”
Considering the report and other evidence, Fairhurst concluded, “[W]e are confident that the association between race and the death penalty is not attributed to random chance.” Among the other evidence cited by Fairhurst was the state’s “case law and history of racial discrimination,” including cases in which prosecutors made racist statements and took “inflammatory, racially charged” actions in court.
Although Fairhurst’s opinion was treated as the main opinion for the case, a majority of the nine-justice court did not sign on to all of the reasons she gave for reaching the decision. One of the four justices to join Fairhurst’s decision, Justice Steven Gonzalez, noted that he concurred “in result only.”
A second opinion, by Associate Chief Justice Charles Johnson, was joined by the three remaining justices. In it, he wrote, “While I generally concur with the majority’s conclusions and its holding invalidating the death penalty, additional state constitutional principles compel this result.” Johnson wrote that the report’s conclusions about racial bias “raise significant concerns” — but he went on to say that “other additional constitutional factors have become more apparent, supporting the conclusion that the death penalty, as administered, is unconstitutional.”
Specifically, Johnson later wrote, “Based on a current review of the administration and processing of capital cases in this state, what is proved is obvious. A death sentence has become more randomly and arbitrarily sought and imposed, and fraught with uncertainty and unreliability, and it fails state constitutional examination.”
His opinion focused on the fact that “[t]he death penalty simply does not exist as an option in the majority of the state’s counties,” noting that there are “at most, three” counties in the state where a death penalty prosecution “is an option,” as well as the significant delays “inherent in death sentence cases.”
Because the ruling is based on the state high court’s interpretation of the state’s constitution — a point made in both opinions in the case — it cannot be appealed to the US Supreme Court.
The court did not rule that the death penalty is always unconstitutional, but instead that Washington’s law, established by looking at the way that it is implemented, is unconstitutional.
“We leave open the possibility that the legislature may enact a ‘carefully drafted statute,'” Fairhurst wrote, quoting from the US Supreme Court’s opinion upholding some states’ death penalty statutes after the court had earlier, in effect, created a national moratorium on the death penalty in the 1970s, “to impose capital punishment in this state, but it cannot create a system that offends constitutional rights.”