Death penalty ruled racially biased, unconstitutional by Washington State’s Supreme Court

Sarah Lustbader

Yesterday, the Washington Supreme Court ruled that capital punishment, as applied in Washington, violates the state Constitution. It held that the death penalty has been imposed in an unlawfully “arbitrary and racially biased manner” and “fails to serve any legitimate penological goals.” The court converted all death sentences to life imprisonment. The ruling was unanimous and, because it is based on the state Constitution, it cannot be reversed by the U.S. Supreme Court.

Washington’s Constitution bars “cruel punishment,” a provision that has been interpreted as more expansive than the Eighth Amendment to the U.S. Constitution. Even so, in 2012, the court upheld the death penalty, noting it had seen “no evidence that racial discrimination pervades the imposition of capital punishment in Washington.” This led a death row prisoner’s attorneys to commission a study by Katherine Beckett, an expert on race and criminal sentencing. Beckett’s study analyzed the imposition of capital punishment in the state from 1981 to 2014 and found that Black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants. Further, prosecutors are more likely to seek the death penalty in counties with larger Black populations. “Most prosecutors in the state have stopped seeking the death penalty, so all current capital sentences arise from just six of Washington’s 39 counties,” writes Mark Joseph Stern for Slate. “The location of your crime may therefore determine whether you live or die. This ‘random’ and ‘capricious’ application of the ultimate punishment, the court ruled, fatally undermines any state interest [in] ‘retribution and deterrence of capital crimes by prospective offenders.’”

This ruling has called to mind the 1972 U.S. Supreme Court case Furman v. Georgia, which found that the death penalty, as applied, violated the Eighth Amendment. The principal concern of the Court was that the death penalty was being administered arbitrarily. The case put a temporary moratorium on the death penalty. Various states then responded to the ruling by tailoring their laws to satisfy the concerns expressed by the Court, by instituting discretionary devices to help guide juries or by eliminating discretion and imposing mandatory death sentences for certain crimes. (The Court later ruled that the mandatory sentencing system did not sufficiently address the Furman concerns.) Four years later, in Gregg v. Georgia, the Court upheld death sentences, finding that “the punishment of death does not invariably violate the Constitution.” The moratorium was over. [See Dawinder S. Sidhu / West Virginia Law Review]

The Washington decision seemed to many like a second chance at McCleskey v. Kemp, a decision that has been called the “Dred Scott decision of our time.” In McCleskey, the Supreme Court refused to hear statistical evidence of race discrimination in the application of the death penalty and, as a result, severely restricted the ability for minority plaintiffs to succeed on equal protection claims. In 1987, the Supreme Court ruled that the Constitution did not allow defendants to challenge a death sentence by showing solid statistical evidence that the system as a whole is biased: “[T]o prevail under the Equal Protection Clause, [a defendant] must prove the decisionmakers in his case acted with discriminatory purpose.” The ruling in McCleskey created a bar that was “impossible to meet,” according to a death-row litigator in Durham, North Carolina. “No one since … has succeeded in a claim of race discrimination,” the lawyer said. In his dissenting opinion, Justice William J. Brennan Jr. characterized the majority’s reluctance to consider the evidence of discrimination as “a fear of too much justice.” Justice Lewis F. Powell Jr., who wrote the majority opinion in the 5-4 decision, was asked by his biographer if there was a vote he would change if he could. His response: “McCleskey v. Kemp.”

The Court also rejected the argument that Warren McCleskey’s sentence was cruel and unusual punishment because there is a “constitutionally permissible range of discretion.” Even though sentencing discretion must be limited “so as to minimize the risk of wholly arbitrary and capricious action,” juries must be afforded some discretion, based on the circumstances of the crime and the defendant. The disparities in sentencing shown by the studies, Justice Powell argued, were an “inevitable” cost of jury discretion. “Implicit in this holding is the view that maintaining jury discretion is a more important value than eliminating race discrimination in capital sentencing,” writes professor Phyllis Goldfarb.

In a recent law review paper, professor Reva Siegel commemorated the 30th anniversary of McCleskey, presenting historical evidence showing that the decision “was responsive to conservative claims of the era about race, rights, and courts.” But Siegel points out that a close reading of the decision has prompted some courts to limit the McCleskey restrictions to the particular concerns of that case, which could open the door to admitting statistical evidence of bias in other situations. She concludes, “Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.” In the Washington State case, however, it seems that judges were enough.