Washington State Supreme Court Declares Death Penalty Unconstitutional

Last week, the Washington State Supreme Court declared the death penalty unconstitutional. The latest in a string of victories for opponents of capital punishment.

The Washington State Supreme Cout ruled late last week that the death penalty is unconstitutional, the latest in a string of legal and other developments that have led to a marked decline in executions across the country:

The Washington state Supreme Court on Thursday unanimously struck down the death penalty there as unconstitutional and “racially biased,” a ruling that makes it the latest in a string of states to abandon capital punishment in recent years.

Washington state had already halted any executions under a moratorium put in place by Gov. Jay Inslee (D) in 2014, so the order issued Thursday will not stop already planned executions. But the court’s order, which declares that death sentences in the state should be converted to life in prison, is a sweeping rejection of capital punishment at a time when it is being used less nationwide and as states are struggling to obtain the drugs needed for lethal injections.

In their opinion, the justices focused on what they said was the unequal use of the death penalty, describing it as a punishment meted out haphazardly depending on little more than geography or timing.

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner,” the justices wrote. “While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.”

Chief Justice Mary E. Fairhurst wrote the opinion and four justices concurred, one in the result only. Four other justices signed a concurrence saying they agreed with “the majority’s conclusions and its holding invalidating the death penalty” but adding other state constitutional factors they said “compel this result.”

The arguments outlined in Washington have echoes of what Supreme Court Justice Stephen G. Breyer has said in questioning whether the death penalty itself is constitutional. In a 2015 dissent joined by Justice Ruth Bader Ginsburg, Breyer called the death penalty’s use “capricious, random, indeed, arbitrary” and said for those sentenced to death, it was “the equivalent of being struck by lightning.” Breyer echoed that point in 2016 when discussing California’s use of the death penalty, saying it similarly was unreliable, arbitrary and plagued by delays.

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Washington has already been among the states not moving forward with executions under the moratorium Inslee announced in 2014. Oregon also has a moratorium on the death penalty, which Gov. Kate Brown (D) decided to keep in place when she took office.

“Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington,” Inslee said in a statement after the order Thursday. “The court makes it perfectly clear that capital punishment in our state has been imposed in an ‘arbitrary and racially biased manner,’ is ‘unequally applied’ and serves no criminal justice goal. This is a hugely important moment in our pursuit for equal and fair application of justice.”

More from Buzzfeed legal reporter Chris Geidner:

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 on death row in the state currently will have their sentences converted to life imprisonment, the court ruled.

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 court looked at the expert report commissioned by Gregory looking at “the effect of race and county on the imposition of the death penalty.”

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 in the case. 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.”

As a preliminary matter, it’s worth noting that the Court did not rule that capital punishment was invalid under all possible circumstances, that question apparently wasn’t before the Justices and in any case would be a harder case to make given the fact that, like the Federal Constitution, the Washington State Constitution contains provisions regarding not depriving people of “life” without due process of law. This implies that, under the proper circumstance and under a different law, capital punishment could be Constitutional. Given the scope of the Court’s ruling, though, it would be difficult to make such a case. Instead of a broad ruling like that, the Court held that the death penalty as it has been historically applied under existing law is unconstitutional because it is too easily infected by issues such as racial bias, economic bias in that Defendants who cannot afford to hire top attorneys and high-priced experts are at a disadvantage, and that the punishment is applied in what amounts to an arbitrary and capricious manner. All of this means, the Court held, that the use of capital punishment violates several provisions of the state’s Constitution.

The fact that the ruling is based on the state Constitution rather than the Federal Constitution is important because it essentially means that the state is precluded from appealing the matter to the U.S. Supreme Court. As a general rule, the Supreme Court has declined to review rulings from the state courts that are based on state law, especially when those rulings come from the Supreme Court of the state in question. Generally speaking, this is based on principles of judicial deference and the idea that a state’s Supreme Court is a better judge of the interpretation of state laws than the Supreme Court in Washington, D.C. could be. As a general rule, the only time the Supreme Court will accept jurisdiction in any case like this is if there is a credible Federal issue that would overrule the state Constitutional issues. Since that doesn’t appear to be the case here, it’s probable that the Washington Attorney General won’t even bother to seek review from the Justices in Washington, D.C.

As far as Washington State is concerned, this ruling will only have a limited impact. As noted above, the state has been operating under a death penalty moratorium for several years now and there has been movement in the state legislature to formally repeal the law authorizing capital punishment that is likely to get impetus from the ruling that has been issued by the State Supreme Court. For the prisoners like Gregory and the others on Washington’s death row, the result of the ruling is that their sentences are all commuted to life in prison without the possibility of parole, which is certainly preferable to a punishment that amounts to state-sanctioned murder and which, as many studies have shown, is not being applied fairly or justly in a manner that even approaches trying to comply with the requirements of the law.

This ruling is the latest development in a public and legal war against capital punishment that has gathered steam in recent years. As a general rule, executions have become far less common in recent years due either to legislative action, legal action, or difficulty obtaining the drugs used in lethal injections, which has become the most common form of execution of late even though some states still authorize older methods such as the electric chair and even firing squads. In 2013, for example, Maryland abolished capital punishment and the state’s Governor at the time commuted the sentences of the men still on death row at the time to life in prison. The year before Maryland’s action, Connecticut’s legislature also repealed the death penalty but left it open as a potential sentence committed prior to the repeal of the law. In 2016, though, the Connecticut Supreme Court ruled this unconstitutional and repealed capital punishment as an option in any case. In that same year, the Delaware Supreme Court declared capital punishment unconstitutional under the State Constitution. In one setback for the anti-capital punishment movement, Nebraska’s legislature repealed the death penalty in 2015 only to see voters reinstate it via referendum in 2016. Since then, the state has carried out one execution. Finally, polling has shown a turn in public opinion on the issue, with a majority of Americans saying they preferred life without parole to the death penalty.

For those of us opposed to capital punishment, this is obviously a positive development. Slowly but surely the nation is turning against a form of punishment that is both barbaric in and of itself and quite simply incapable of being applied in a manner that complies with due process and equal protection under the law. There’s also no evidence that the existence of the death penalty has ever served as a deterrent to crime, or that it has done anything to lower the crime rate. For those cases where execution might be appropriate, the alternative of life in prison without parole is right thing because it is more just and because, in the event of a wrongful conviction, which is far too common to trust to a system that kills people in the name of retribution.

Here’s the opinion:

Washington v. Gregory by on Scribd

FILED UNDER: Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    I haven’t any specific understanding of the Washington state constitution but I’d argue that the same could be argued with regard to the U.S. Constitution:

    . . . as it has been historically applied under existing law is unconstitutional because it is too easily infected by issues such as racial bias, economic bias in that Defendants who cannot afford to hire top attorneys and high-priced experts are at a disadvantage, and that the punishment is applied in what amounts to an arbitrary and capricious manner.

    But, by that logic, aren’t all criminal statutes unconstitutional? As a practical matter, poor and minority suspects are more likely to be arrested, charged, convicted, and harshly sentenced than more affluent and white citizens. Aside from its finality, then, why is the death penalty different?

  2. OzarkHillbilly says:

    @James Joyner: It isn’t, but that speaks to the inherent racial bias, and economic bias that infects so much of our society. We could fix these disparities to ensure that everybody got a fair shake in our judicial system but that would cost money and we can’t have that.

    Besides, right now the wealthy enjoy an all but absolute immunity to legal consequences for their actions and we can’t expect them to share that exalted status with the hoi polloi, can we now?

  3. HarvardLaw92 says:

    @James Joyner:

    The finality in and of itself draws the line between capital punishment and other sentences. We can never expect that the judicial system will be perfect, but we do have to recognize that imposing a permanent penalty via a flawed system is inherently problematic. Add in the bias towards the poor and minorities with respect to imposition of the death penalty and the problem becomes clear.

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  4. DrDaveT says:

    For those of us opposed to capital punishment, this is obviously a positive development. Slowly but surely the nation is turning against a form of punishment that is both barbaric in and of itself and quite simply incapable of being applied in a manner that complies with due process and equal protection under the law.

    Interesting.

    I am not opposed to capital punishment in principle, but am vehemently opposed to current US practice on exactly the grounds stated in this ruling. I don’t think there’s anything barbaric at all in eliminating (say) Ted Bundy from the world in the cheapest practical fashion, and I don’t think anyone could make a convincing argument that NOT killing him, once you know what he is, is morally justifiable.

    The problem, of course, is that cases as clear cut as Bundy’s are rare, and the entire apparatus of justice in the US from police to sentencing is incapable of either equal application of the law to all or competent assessment of evidence.

  5. James Joyner says:

    @HarvardLaw92: I don’t disagree with you that capital punishment is a special category and, for the reasons you cite, I’ve come to disfavor it as a policy option. But, from the standpoint of U.S. Constitutional law, clearly the death penalty is authorized—it’s explicitly listed as a punishment in both the 6th and 14th Amendments. To the extent that unequal treatment for the poor and certain minority groups makes its specific application a violation of due process—and I’m sympathetic to the idea that it does—then I don’t see how the same logic doesn’t apply to other criminal punishment. Sure, death is impossible to overturn later in a way that a life sentence isn’t. But, practically speaking, we seldom overturn the sentences of those without access to top legal counsel, anyway.

    And I’m not making a slippery slope argument here. I’m not saying that, if we take this to its logical conclusion, we can’t punish anyone so therefore we shouldn’t apply it here. I’m saying that maybe we should take it to its logical conclusion and either much more vigorously construe the right to counsel or otherwise figure out how to make the overall legal system less discriminatory.

  6. OzarkHillbilly says:

    @James Joyner:

    I’m saying that maybe we should take it to its logical conclusion and either much more vigorously construe the right to counsel or otherwise figure out how to make the overall legal system less discriminatory.

    Exactly, and in a country where both parties actually cared about actual justice we would do both. That’s why it won’t happen within the foreseeable future.

  7. Tyrell says:

    Maybe someone can answer this question, I have researched and find vague answers. It may seem like a crazy question. I ask people and they say “that’s a good question”. How would this affect military courts in Washington if they rule a death penalty?
    One thing that I thought of is that the death penalty would end the possibility of finding facts in some cases. Think about that Sirhan Sirhan person who killed Robert Kennedy. There is always the possibility that some day he might start talking. Of course somebody made sure that Lee Harvey Oswald and James Earl Ray wouldn’t talk. Also John Wilkes Booth.

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  8. just nutha says:

    @Tyrell: Since the people convicted are not subsequently incarcerated in Washington State Department of Corrections facilities, the state doesn’t have any say about what happens and need not care.
    ETA: It seems to me that the people who might have “something to say” usually DON’T get prosecuted in the first place–either skipping entirely or perhaps, being killed to guarantee their silence as per the legends of LH Oswald and JE Ray.