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Washington Supreme Court Announces State’s Death Penalty Is Unconstitutional

by Richard Resch

On October 11, 2018, the Supreme Court of Washington issued an opinion in which the Court struck down the state’s death penalty, announcing: “we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner.” The Court continued that in light of “the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.” Thus, “it violates article I, section 14 of our state constitution,” the Court stated.

In 2001, Allen Gregory was convicted of aggravated first degree murder and sentenced to death. Following multiple appeals and remands, the Washington Supreme Court agreed to hear his current appeal. The principal issue before the Court was whether the state’s “death penalty is imposed in an arbitrary and racially biased manner.”

Gregory argued that the state’s death penalty violated both the Washington and U.S. Constitutions. The Supreme Court resolved the issue under state law without having to rely on federal law. As the Court noted, it has a duty to attempt to resolve constitutional questions by turning first to the state Constitution before turning to the U.S. Constitution. Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993). It added that the former’s “cruel punishment clause often provides greater protection than the Eighth Amendment.” State v. Roberts, 14 P.3d 713 (Wash. 2000).

After reviewing the evidence submitted to the Court, it concluded: “It is now apparent that Washington’s death penalty is administered in an arbitrary and racially biased manner.”

It relied heavily upon and gave great weight to a statistical analysis report commissioned by Gregory referred to as the Updated Beckett Report that studied “the effect of race and county on the imposition of the death penalty.” The Report concluded: (1) there’s significant county-by-county variance in seeking or imposing the death penalty, (2) case characteristics explain only a small portion of the variance, and (3) black defendants are four-and-a-half times more likely to receive the death penalty than similarly situated white defendants.

In light of the statistical data contained in the Updated Beckett Report, the Supreme Court determined that the state’s death penalty lacks fundamental fairness and thus violates article I, section 14 of the Washington Constitution. Consequently, the Court held that the state’s death penalty, as administered, is unconstitutional.

Revised Code of Washington § 10.95.090 provides that “if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder … shall be life imprisonment.” The Court converted all death sentences to life imprisonment in accordance with the statute.  

While undoubtedly a victory for Gregory and those opposed to the death penalty in general, the Washington Supreme Court cautioned that it is not ruling that “the death penalty is per se unconstitutional.” Rather, the Court held that the State’s “death penalty is invalid because it is imposed in an arbitrary and racially biased manner.” Notably, this is the fourth time Washington’s death penalty has been declared unconstitutional, so unfortunately it’s by no means a foregone conclusion that the Supreme Court’s current ruling represents the final word on the issue. See: State v. Gregory, 2018 Wash. LEXIS 696 (2018). 

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