By Christopher Zoukis
Washington State’s Supreme Court has unanimously decided the death penalty as it has been applied violates the state’s Constitution. The decision, written by Chief Justice Mary Fairhurst and handed down October 11, finds the state has implemented the death penalty in a fundamentally unfair way.
The decision didn’t say the death penalty is intrinsically unconstitutional, but instead explicitly leaves open the possibility the state legislature could revise the law to address the problems the court identified.
The challenge to capital punishment was brought on behalf of Allen Eugene Gregory, who was convicted of raping, robbing and murdering a 43-year-old woman in 1996. The jury not only convicted him of aggravated first-degree murder but recommended the death sentence, finding no sufficiently mitigating circumstances.
On appeal, Gregory offered a statistical analysis done by the University of Washington sociologists which showed significant variation county-by-county in decisions to ask for or impose death sentences.
The analysis also showed that the size of the local black population, but not such factors as population density, fiscal capacity or political orientation, accounted for part of the variation. Even after adjusting for case characteristics shown in trial reports, black defendants were four and a half times more likely to draw a death sentence than white defendants.
The state constitution in Washington also requires sentences not to be cruel, which state law has said means they are proportionate to the seriousness of the crime (the state standard is in some ways different from those used in federal law to interpret the Eighth Amendment). Evidence of sentencing variations and disparities led the Washington Supreme Court to conclude the state’s current capital punishment system violates the state constitution.
The decision in Washington v. Gregory makes Washington the 20th state in the union to abolish capital punishment by legislation or court decision; the District of Columbia has also done away with capital punishment. The Washington state Supreme Court decision also ordered the sentences of all eight prisoners currently on Death Row at the state prison in Walla Walla to be converted to life imprisonment.
There have been no executions in the state since 2014 when Governor Jay Inslee — once a supporter of capital punishment — imposed a moratorium. Since then, inmates who have received a death sentence have received reprieves from the governor, rather than a pardon or sentence commutation.
Inslee greeted the state Supreme Court decision, saying it made the state’s law “less capricious and less racially tainted,” and cited the decision’s finding that the likelihood of receiving a death sentence was predictable depending on such factors as the location of the crime, the budget available to prosecutors, and the race of the defendant. Even with the death penalty thrown out by the decision, inmates who received a death sentence will now have a life sentence without possibility of parole, meaning no prisoner will be released due to the court ruling.
The latest decision may not be the final word on the death penalty in Washington state. In the last legislative session, a bill to abolish capital punishment cleared the Washington state Senate but stalled in the House. Death penalty opponents say they’ll try to revive a legislative ban in the legislature.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.