Washington Supreme Court Strikes Down Death Penalty, Citing Racial BiasOctober 11, 2018

The Washington Supreme Court today unanimously declared the state's death penalty unconstitutional "because it is imposed in an arbitrary and racially biased manner."

In State v. Gregory, the court evaluated newly available evidence of racial discrimination in the imposition of capital punishment in Washington, including an exhaustive expert statistical study that showed that black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.

In addition to the study, the court relied on our history of racial discrimination, its own observations of implicit and overt racial bias against black defendants, and examples in the case law of prosecutors using peremptory challenges to exclude all black people from jury service, using inflammatory, racially charged images to highlight the defendant's blackness, and heckling a black defense attorney in a capital trial. 

These factors "provide ample support" for the conclusion that race has a meaningful impact on the imposition of the death penalty, it wrote.

The court reasoned that arbitrary and race based imposition of the death penalty cannot withstand the "'evolving standards of decency that mark the progress of a maturing society.'" Indeed, "[w]hen the death penalty is imposed in an arbitrary and racially biased manner, society's standards of decency are even more offended."

Noting that the state's capital punishment law was intended to fix the problems of arbitrary imposition identified by the United States Supreme Court in 1972 when it struck down the death penalty nationwide, the court wrote that "after decades of experience, we now see the same fatal flaws emerge, despite the legislative attempt to avoid such deficiencies."

Because the state's death penalty law lacks "fundamental fairness," the court held that it violates the state constitution and ordered all death sentences converted to life imprisonment.

We hold that Washington's death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner. Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.

Three justices joined Justice Johnson's concurrence, which reasoned that the death penalty was unconstitutional not only because of racial bias but also because it was arbitrary and unreliable. "Where the vast majority of death sentences are reversed on appeal and ultimately result in life without parole, reliability and confidence in the process evaporates."

Justice Johnson concluded: "[W]here a system exists permeated with arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays, such a system cannot constitutionally stand. The combination of these flaws in the system support our conclusion that the death penalty is unconstitutional."

Washington Govenor Jay Inslee praised today's decision. In a statement on Twitter, he said:

"Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington. This is a hugely important moment in our pursuit for equal and fair application of justice."

The United States Supreme Court in 1976 concluded that "evolving standards of decency" in the country tolerated the death penalty. In recent years, however, six states have established a new trend toward abolition. Since 2007, the death penalty has been repealed in Maryland, New Jersey, New York, New Mexico, Illinois, and Connecticut.