Washington Supreme Court declares death penalty unconstitutional

by Jay Krulewitch

This article originally appeared in the November 2018 issue of Trial News, the monthly publication of the Washington State Association for Justice.

I should not regret a fair and full trial of the entire abolition of capital punishment. — James Madison

Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. — J.R.R. Tolkien (Gandalf speaking to Frodo)

Under what circumstances is it moral for a group to do that which is not moral for a member of that group to do alone? — Robert A Heinlein

In the US the overwhelming majority of those executed are psychotic, alcoholic, drug addicted or mentally unstable. They frequently are raised in an impoverished and abusive environment. Seldom are people with money or prestige convicted of capital offenses, even more seldom are they executed. — George Ryan, former Illinois Governor

On October 11, 2018, the Washington Supreme Court handed down an historic and momentous decision in State v. Gregory in finding capital punishment to be an unconstitutional form of punishment in the State of Washington. Allen Eugene Gregory, an African-American man, had been convicted of the rape and murder of a woman and had been sentenced to death. He was capably and well-represented on his appeal by Neil Fox, a private attorney, and Lila Silverstein, an attorney with the Washington Appellate Project. The ACLU of Washington filed an amicus brief and Jeffery Robinson, its Deputy Legal Director, presented part of the oral argument on the appeal. With respect to this decision, Mr. Robinson has eloquently stated that:

Racial bias, conscious or unconscious, plays a role in the death penalty decisions across America, influencing who faces this ultimate punishment, who sits on the jury, what kind of victim impact and mitigation evidence is used, and who is given life or death … [and t]hat disparity can be described by many words — but justice is not one of them.

See ACLU of Washington, “Washington Supreme Court Strikes Down Death Penalty, Citing Racial Bias”, October 11, 2018. Speaking for the court, Justice Fairhurst wrote as follows:

The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. 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. As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution. State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018).

1. Current state of the death penalty in the United States and the world

The Gregory court’s decision can hardly be said to be shocking given the prevailing climate and opinion towards the Death Penalty. While Washington is not the first state in the Union to find capital punishment to be unconstitutional, given its convoluted and tortured history in our state, the fact that this is the fourth time the death penalty has been declared unconstitutional in the State of Washington, the powerful impact of this decision cannot be overstated. What makes this decision momentous is the fact that the Washington Supreme Court is united in its belief that the time has come for the death penalty to be jettisoned as a legal form of punishment in our state. The court has moved beyond Governor Inslee’s 2014 moratorium against the use of capital punishment to declare this barbaric form of punishment as unconstitutional in keeping with our state constitution.

Help WSAJ protect the rights of injured people and defeat the anti-consumer proposals that provide immunities to negligent special interests, including hospitals, nursing facilities, corporate polluters, and reckless manufacturers.

Washington now joins the ranks of nineteen other states who have abolished capital punishment in the United States. For years, America has stood alone as the one Western country to still utilize capital punishment. No other modern Western country utilizes capital punishment. For years, we have had more in common with China and Iran, two countries with a very poor history of protecting individual freedom and civil liberties, which have used capital punishment on a regular basis, than we have had with our own natural allies, i.e. other Western European countries. Virtually all of Europe has completely abolished the death penalty except for Belarus, which executed two people in 2018, and Russia, which currently has a moratorium in place. Curiously, Russia has not executed anyone since 1996! And, our closest ally, the United Kingdom, abolished the death penalty in 1965. We, on the other hand, still have 30 states that continue to use capital punishment, and it still is a form of accepted punishment in the Federal system.

2. Until recently, the death penalty was widely used, especially in the south

In 1972, the U.S. Supreme Court issued its decision in Furman v. Georgia, 408 U.S. 238 (1972). In essence, Furman required that if any state wanted to reinstate the death penalty, it needed to at least remove arbitrary and discriminatory effects, in order to satisfy the Eighth Amendment to the United States Constitution. Although Furman was decided by a 5-4 vote, the five justices could not agree on their rationale for their ruling. Furman, in effect, led to a de facto moratorium on the use of the death penalty across the land. However, four years later, all of this changed with a series of court cases culminating in 1976 with the U.S. Supreme Court case of Gregg v. Georgia, 428 U.S. 153 (1976).

In Gregg, the court first held as follows:

“We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.” — Gregg v. Georgia, 428 U.S. 153, 187 (1976)

In upholding Georgia’s capital sentencing scheme, the court further held that:

“Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner. In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” — Gregg v. Georgia, 428 U.S. 153, 195 (1976)

The court further found that:

“We do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman … for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital sentencing systems capable of meeting Furman’s constitutional concerns.” — Gregg v. Georgia, 428 U.S. 153 (1976)

As a result, since 1976, the floodgates were opened and executions have been occurring with an alarming frequency. And, as the above statistics demonstrate, it has been frequently and steadily used throughout much of the country, though the South has certainly led the nation in this macabre race to impose the ultimate sanction on convicted individuals. According to the Death Penalty Information Center, since 1976, there have been 1,483 executions carried out in the United States. By region, the South had by far and away the most executions with 1,211, then the Midwest with 183, then the West with 85, and then the Northeast with 4. Sadly, Texas and Oklahoma, combined, carried out 667 executions during this period. The State of Washington carried out 5 executions during this same period. See Death Penalty Information Center, Fact Sheet, updated as of October 11, 2018.

3. The tide has begun to turn with Illinois Governor Ryan’s historic decision

On January 11, 2003, speaking at the Northwestern University College of Law, three days before he was to leave office, Illinois Governor George Ryan issued a moratorium on the Death Penalty in the State of Illinois and, in part, uttered these famous words:

The fact is that the failure of the General Assembly to act is merely a symptom of the larger problem. Many people express the desire to have capital punishment. Few, however, seem prepared to address the tough questions that arise when the system fails. It is easier and more comfortable for politicians to be tough on crime and support the death penalty. It wins votes. But when it comes to admitting that we have a problem, most run for cover. Prosecutors across our state continue to deny that our death penalty system is broken ? or they say if there is a problem, it is really a small one and we can fix it somehow. It is difficult to see how the system can be fixed when not a single one of the reforms proposed by my Capital Punishment Commission has been adopted. Even the reforms the prosecutors agree with haven’t been adopted. So when will the system be fixed? How much more risk can we afford? Will we actually have to execute an innocent person before the tragedy that is our capital punishment system in Illinois is really understood?

New York Times, January 11, 2003, “In Ryan’s Words: ‘I Must Act’,” https://www.nytimes.com/2003/01/11/national/in-ryans-words-i-must-act.html. The full text of Governor Ryan’s address can be found at the above citation. Governor Ryan’s historic decision to acknowledge the complete and utter failure of the State of Illinois to administer the death penalty with a sense of fairness indicative of a just society ushered in a new era in our society. As noted above, with Washington counted among them, twenty states have now abolished the death penalty for use in their state. That represents two fifths of all of the states in the union and this has occurred in just fifteen years!

4. Underlying rationale and basis for State v. Gregory

I now return full circle back to our state supreme court’s unanimous and momentous decision issued in State v. Gregory. Relying, in part, on a study commissioned by the Defense in State v. Gregory—a study conducted by Katherine Beckett—the court ultimately held that:

It is now apparent that Washington’s death penalty is administered in an arbitrary and racially biased manner. Given the evidence before us, we strike down Washington’s death penalty as unconstitutional under article I, section 14 … [w]here the trial which results in imposition of the death penalty lacks fundamental fairness, the punishment violates article I, section 14 of the state constitution. — State v. Gregory, ___ at ___

The court was particularly influenced by the findings on race in Ms. Beckett’s study:

“[F]rom December 1981 through May of 2014, special sentencing proceedings in Washington State involving Black defendants were between 3.5 and 4.6 times as likely to result in a death sentence as proceedings involving non-Black defendants after the impact of the other variables included in the model has been taken into account.” — State v. Gregory, ___ at ___

Although the court refused to find the death penalty unconstitutional per se, it did find that:

“The arbitrary and race based imposition of the death penalty cannot withstand the ‘evolving standards of decency that mark the progress of a maturing society.’” Fain, 94 Wn.2d 397 (quoting Trop, 356 U.S. 101). “When considering a challenge under article I, section 14, we look to contemporary standards and experience in other states. State v. Campbell, 103 Wn.2d 1, 32, 691 P.2d 929 (1984). We recognize local, national, and international trends that disfavor capital punishment more broadly. When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended. Our capital punishment law lacks ‘fundamental fairness’ and thus violates article I, section 14.” — State v. Gregory, ___ at ___

It remains to be seen how many more states will join the twenty states that have abolished the death penalty. But given the trend in this area of the law, it would appear that Washington ought not to be the last state to abolish the death penalty as an appropriate and constitutional form of punishment! No doubt, State v. Gregory should spur other states to consider their own examination as to whether their current practice on death penalty scheme is fundamentally unfair and/or whether imposing a capital sentence and conducting executions at all is simply a flawed process and should be abolished altogether.

Jay Krulewitch, EAGLE Member, practices personal injury, civil rights, and criminal defense in Lake City, Seattle. He is the Editor-in-Chief of the Trial News.