Oct 11, 2018, 5:22 PM ET

Washington State Supreme Court declares death penalty unconstitutional: Analysis


The Supreme Court of the state of Washington has ruled that the death penalty violates the state’s constitution.

With today's decision, Washington becomes the 20th state to abolish capital punishment, and the eighth in the last 11 years. Three other states have governor-imposed moratoria in carrying out executions —- all also issued in the last decade.

Thirty states and the federal government provide for the imposition of death as a sentence for some homicides.

The case was brought by Allen Gregory, sentenced to death for the 1996 rape and murder of 43-year-old Geneine Harshfield in her home in Tacoma.

There is no doubt of Allen’s guilt, or of the horrific brutality of his crime. What the Washington court focused on is what many states have come to see —- the death penalty is administered so arbitrarily, and is laced with so much conscious and unconscious racial bias, that it cannot be seen as a just or even lawful act by the state.

PHOTO: Gov. Jay Inslee, left, addresses a news conference with Attorney General Bob Ferguson following an earlier announcement that Washingtons Supreme Court unanimously struck down the states death penalty, Oct. 11, 2018, in Olympia, Wash.Rachel La Corte/AP Photo
Gov. Jay Inslee, left, addresses a news conference with Attorney General Bob Ferguson following an earlier announcement that Washington's Supreme Court unanimously struck down the state's death penalty, Oct. 11, 2018, in Olympia, Wash.

The key evidence for that fact was an exhaustive study by statisticians at the University of Washington of how the death penalty actually works in that state —- when prosecutors seek it, when juries impose it, who eventually gets the needle.

The death penalty is invalid because it is imposed in an arbitrary and racially biased manner.

The study found that black defendants were four-and-a-half times more likely to be sentenced to death than similarly-situated white defendants. Interestingly, prosecutors’ choices to seek the death penalty showed no signs of racial bias. It was the juries who introduced conscious/unconscious racism into their decisions.

"We don't know what Allen Gregory's jury was thinking," said Lila Silverstein of the Washington Appellate Project, one of Gregory's attorneys.

"But what we do know based on this study is that had Allen Gregory not been black, his chances of being sentenced to death would have been notably lower.”

The state supreme court agreed, and went farther:

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner," the decision reads.

"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 decision continues, "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.”

With the Supreme Court of the United States now firmly in conservative hands for many years, state courts and legislatures are the only battleground over the future of the death penalty in America.

News - Washington State Supreme Court declares death penalty unconstitutional: Analysis

RRelated Posts


  • Thomas

    I am in favor of the death penalty as a concept.
    I am against the death penalty as it is implemented.

    Until we can come up with a fair, objective, and consistent criteria for the Death Penalty, I believe we should not use it.

  • Disqus 30

    The study brought up some good points.
    The solution is that the death penalty be applied uniformly to murder, instead on how much emotion is provoked by the crime itself.

    Capital punishment was widely accepted by the framers of the us constitution. They weren’t perfect by any means, but applying feeelings isn’t any use.

  • DragSlay

    This whole line of reasoning seems convoluted, redundant and bogus. They conclude that jury decisions are biased and racist against blacks because there are more blacks condemned to death than whites in combination with the fact that blacks are a much smaller proportion of the population (without reference to the crime itself), that it's applied in an arbitrary and racially biased manner (which seems to be based on the first irrelevant point), but the major argument against it seems to be that it is unequally applied throughout the state. That is, the death penalty is "ok", they're just not executing enough white folks or, because they cannot have perfectly equal justice (by their questionable criteria), they will have no justice at all.

    Further, juries, the source of the sentencing, differ throughout the state, which should come as a surprise to no one in any state. That is, urban juries, like the populations they represent, often differ from semi-rural or rural juries on all manner of values. However the whole concept of having a "trial by a jury of peers" is based on how the peers, members of the community in which the crime took place, view the crime and the criminal, and not on any "statewide" or "national" averages, much less, theoretical idealizations, all of which were found wanting by the originators of trial by a jury of peers. The WA supremes seem to ignore this basic principle in groping for an excuse to end the death penalty.

    And make no mistake, whatever one's beliefs in religion, afterlife, morality etc., the only one thing we all can be sure of, and the one thing that we all hold most precious and dear, is life itself, when we have it and when we don't. When someone takes with premeditation the life of another, then simple justice demands that the killer forfeit his or her life - an eye for an eye but, importantly, no more than an eye for an eye (Re the last point: Deterrence of others should never be used to justify the death penalty, or lack of deterrence a justification for eliminating the death penalty, as that would be executing someone for the anticipated possible crimes of others in the future). To fail to administer such simple justice in the name of the people (for a crime against one is a crime against all), and not in the name of the victim or victim's families, or to dodge that responsibility under the subterfuge of unequal thus imperfect application, impracticality, expense, or lack of deterrence (no penological goal?). is a failure of moral courage on the part of our leaders - the reason we elect them and pay them to be our leaders.

  • AG99

    Posters don't seem to be reading this article correctly. WA didn't say the death penalty itself was the problem, but rather how it was administered. The implication was that the death penalty would be fine if the state could guarantee it was applied without bias in all situations.

  • David Hoffman

    I wonder where we are headed as far as sentencing for crimes. Should we always give out a definitive sentence of 50 years for a particular crime? What if one criminal is 20 years old and the other is 60 years old? The younger criminal might still be alive and able to leave prison while the older criminal most likely will die in prison. Is that a good or bad situation? We as a society want "equal" punishment for equal crimes, but what is that really going to mean?

    I believe that all the states will eventually stop using the death penalty due to similar legal challenges. The Federal Government on the other hand might be able to keep the death penalty due to the some of the unique crimes only the Federal Government deals with.

  • Kevin

    So, let me get this straight...

    it's okay for Washington residents to kill a innocent baby inside a mother's womb. But, it's Criminal to put a murderer to death?

    Oh, I get it. That makes total sense!

  • jake

    A death sentence can make martyrs out of criminals. To spend the rest of your life in prison is shame that will never end. What glory is there being behind bars for the rest of your life? Perhaps a life sentence would be a greater deterrent than a death sentence. Can't go out in a blaze of glory if you're just withering away in prison year after year after year. Who wants to emulate that?

  • Armed and Psychotic Loner

    The death penalty is a great deterrent... but only to the guy who gets it.

  • P'Thizikil

    The US is alone among advanced countries in allowing the state to commit murder. If the state can do it as representatives of the people, then all those who voted for those politicians are also murderers.

  • Scott Gore

    It's time to eliminate the death penalty nationwide. It's more costly than keeping criminals locked up for life, and the most important thing is we're not killing a potentially innocent person. It's one thing to have an innocent person locked up. They can get out. The convict will sue the state that convicted him, but that's far better than killing someone who maybe didn't commit the crime. Eliminating the penalty would basically follow Blackstone's formulation.

  • Valdemar Gonzalez

    Ok - so NOW what? Key piece of info is missing: what did the state Supreme Court do? Remand BACK to the lower court for resentencing? Or did they, themselves, commute the sentence to life in prison without ever having the possibility of parole [which is the new sentence he should get then] ..... how could the reporter omit this key piece of information?