*Ryan W. Fish
The Supreme Court of Washington recently ruled in State v. Gregory that the state’s death penalty was unconstitutional because it was imposed in “an arbitrary and racially biased manner.” State v. Gregory, 427 P.3d 621, 621 (Wash. 2018). This marks the fourth time that Washington has done so. Id. at 626. Washington is now one of twenty states which have abolished the death penalty. Mark Berman, Washington Supreme Court Strikes Down State’s Death Penalty, Saying It Is ‘Arbitrary and Racially Biased,’ Wash. Post (Oct. 11, 2018), https://www.washingtonpost.com/news/post-nation/wp/2018/10/11/washington-supreme-court-strikes-down-states-death-penalty-saying-it-is-arbitrary-and-racially-biased/.
I. The Death Penalty in Washington
The death penalty’s tumultuous history in Washington is a result of the evolving jurisprudence of the Supreme Court of the United States. See Gregory, 427 P.3d at 628. Washington’s death penalty statute was deemed unconstitutional alongside those of the majority of the states when the Court ruled in Furman v. Georgia that death penalty sentencing procedures creating “substantial risk that death will be imposed in an arbitrary and capricious manner” are unconstitutional. Id. at 628 (quoting State v. Lord, 822 P.2d 177, 222 (Wash. 1991) (quotations omitted)). After Washington enacted a capital punishment scheme that mandated death sentences for certain crimes via a ballot initiative, the Court found similar practices to be unconstitutional. Gregory, 427 P.3d at 628 (citing Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976)). As a result, the Supreme Court of Washington subsequently deemed the state’s mandatory sentencing mechanism to be unconstitutional. Gregory, 427 P.3d at 628 (citing State v. Green, 588 P.2d 1370 (Wash. 1979)). After the Supreme Court upheld a Georgia capital punishment mechanism, Washington eventually enacted a statute modeled after Georgia’s. Gregory, 427 P.3d at 628-29 (“To be constitutionally valid, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed or limited so as to minimize the risk of wholly arbitrary and capricious action.” (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976)). It is this statute that the Supreme Court of Washington struck down as a result of the Gregory decision. Id. at 629.
Said the court: “It is now apparent that Washington’s death penalty is administered in an arbitrary and racially biased manner.” Id. at 633. The decision is notable because the court relied heavily on a study conducted by sociologists Katherine Beckett and Heather Evans which evidenced that “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Gregory, 427 P.3d at 630; Katherine Beckett & Heather Evans, The Role of Race in Washington State Capital Sentencing, 1981-2014, at 31–33 (2014), https://perma.cc/3THJ-989W. The report also concluded that:
[T]here is significant county-by-county variation of decisions to seek or impose the death penalty, and a portion of that variation is a function of the size of the black population but does not stem from differences in population density, political orientation, or fiscal capacity of the county, [and that] case characteristics as documented in the trial reports explain a small portion of the variance in decisions to seek or impose the death penalty[.]
Gregory, 427 P.3d at 630.
The court did not go so far as to rule the death penalty per se unconstitutional and left open the possibility that the state legislature could draft a new statute that would not suffer from the same deficiencies. Id. at 636 (“We leave open the possibility that the legislature may enact a carefully drafted statute.”).
II. National Perspective
While the majority of states have the death penalty as a sentencing possibility, nationally, trends are indicating a shift away from the death penalty. John Gramlich, 11 States That Have the Death Penalty Haven’t Used It in More than a Decade, Pew Res. Ctr. (Aug. 10, 2018), http://www.pewresearch.org/fact-tank/2018/08/10/11-states-that-have-the-death-penalty-havent-used-it-in-more-than-a-decade/; see also James Jeffery, How US Death Penalty Capital Changed Its Mind, BBC (Feb. 11, 2018), https://www.bbc.com/news/world-us-canada-42984170; Amnesty Int’l, Global Rep.: Death Sentenced and Executions 2017 12 (2018) (“The number of executions and death sentences in the USA slightly increased compared to 2016, but remained within historically low trends recorded in recent years. For the second year in a row, the second time since 2006, the USA did not feature among the top five global executioners.”). Seven states, including Nebraska, New Hampshire, Kansas, Wyoming, Colorado, Oregon, and Pennsylvania, have not executed a convicted person in more than fifteen years despite permitting the death penalty. Gramlich, supra. Of the very few states that still carry out executions, only four averaged two or more executions per year since the national moratorium on executions was lifted in 1976. Death Penalty Trends (1976-2005), Death Penalty Info. Ctr., https://deathpenaltyinfo.org/death-penalty-trends (last visited Dec. 13, 2018). Those states are Texas, Virginia, Oklahoma, and Missouri. Id. Texas averages the most annual executions in the nation by far; between thirteen and fourteen convicts are put to death in Texas each year, while the next closest state averages fewer than three per year. Id. In fact, Texas accounts for 30% of the annual national executions. Amnesty Int’l, supra, at 13.
One of the most prevalent reasons cited for the evolving distaste for the death penalty is its exorbitant cost. Peter A. Collins & Aliza Kaplan, The Death Penalty is Getting More and More Expensive. Is It Worth It?, Conversation (Mar. 30, 2017, 10:00 PM ET), http://theconversation.com/the-death-penalty-is-getting-more-and-more-expensive-is-it-worth-it-74294. For example, in Washington, the average death penalty case costs over $1 million more than the average aggravated first-degree murder case resulting in a life sentence without the possibility of parole. Id. The high costs have the attention of other states, too—Nebraska, Colorado, Pennsylvania, and Oregon have cited the costs of death penalty cases as evaluative criteria for assessing the viability of the practice. Id.
The Gregory decision may be in line with the national trend away from the death penalty; however, Washington’s history with the death penalty shows that the issue is far from settled. Time will tell if Washington is able to craft legislation that will be able to subvert the trend of racial bias in sentencing as shown by the Beckett & Evans Report, or if other states’ courts will begin to consider evidence of systemic racial bias in the application of their own death penalty mechanisms.
*Ryan Fish is a second-year day student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review. Ryan is a veteran of the United States Marine Corps, a scholar of the Royal Graham Shannonhouse III Honor Society, and a student attorney working in the Innocence Project Clinic at the University of Baltimore.