Washington Legislative Building and Temple of Justice, Olympia. Photo by Dan Ox.
Washington’s Supreme Court struck down the state’s death penalty on Oct. 11. This makes it the 20th state to ban capital punishment.
At least for now.
Bystanders can be forgiven for a bit of dubiousness as to whether the decision will stick, because this is the fourth time the court has declared Washington’s approach to the death penalty unconstitutional. In the latest decision, as in the prior three, the court declined to hold that capital punishment is unconstitutional per se. Instead, it found fault with the particular application of the existing law – in this case, finding that the death penalty was unequally applied based on the defendant’s race or location, or sometimes the justice system’s budgetary resources at the time of the trial.
Though Washington has had a moratorium on executions since 2014, eight prisoners remained on death row. The court converted their sentences to life in prison. The last execution in Washington took place in 2010.
The court’s reasoning for jettisoning capital punishment is sound, as far as it goes. Defense lawyers in Washington had long challenged the death penalty on the grounds of arbitrariness, since many convicted of serial or mass murder in the state have received life terms rather than death. This includes Gary Ridgway, popularly known as the Green River Killer, who received life imprisonment without parole upon being convicted of 49 separate murders. University of Washington sociologists performed a statistical analysis that demonstrated that juries were more than four times likelier to sentence black defendants to death. The court found their analysis convincing.
“We are confident that the association between race and the death penalty is not attributed to random chance,” the majority opinion stated. This makes Washington the third state (after Massachusetts and Connecticut) to specifically cite concerns about racial disparities in application when abolishing existing capital punishment law.
However, the high court in Washington left open the possibility that some future state law could pass constitutional muster if it is applied in some unspecified systematic, nonarbitrary and nondiscriminatory way. Nobody has yet devised a system that would seem to measure up to that test. Even if Washington legislators are inclined to try, they will have to wait for a new governor; current Gov. Jay Inslee has said he will veto any legislation that passes during his tenure attempting to reinstate the death penalty.
Washington’s decision is part of a larger national trend. Though capital punishment is still legal in 30 states, in many of those places no executions actually take place, and three states have adopted moratoriums even though the practice is not legally prohibited. Death sentences are down 85 percent nationwide compared to the 1990s, according to Robert Dunham of the Death Penalty Information Center.
I have written previously in this space about capital punishment, so it will be no surprise to longtime readers that I think we should strike down the death penalty on a national level. The Eighth Amendment prohibits the state from inflicting cruel and unusual punishments; the death penalty is inarguably cruel and, by 21st century standards, increasingly unusual. It causes prolonged suffering and uncertainty for the condemned, as well as the condemned’s innocent relatives and loved ones. It can also result in physical suffering, especially as states that rely on lethal injection find it increasingly difficult to obtain the necessary drugs and sometimes resort to experimenting with untested combinations.
The situation becomes worse in the case of judicial error. Execution is uncorrectable, which means it violates fundamental due process. We know that wrongful convictions happen, including in the most serious of cases. While such errors always cause suffering, the death penalty removes the ability to make even partial amends.
The podcast “More Perfect” recently used this very scenario to illustrate the Eighth Amendment in its ongoing series about constitutional amendments. Christopher Scott was exonerated after serving 12 years in prison for capital murder. At his sentencing, Scott says his judge asked him why she should not impose the death penalty. He asked: “How could you kill an innocent man?” The judge told Scott he had saved his own life with the question, and sentenced him to life in prison. That choice meant he lived to see his own exoneration.
The U.S. Supreme Court, however, will probably never accept the idea that the death penalty is inherently unconstitutional as long as a majority of states still keep it on their books, even though the great bulk of executions happen in only a handful of states. So the best way to get rid of capital punishment nationally is to take it out one state at a time, until the remaining stack falls of its own accord. In the meantime, we can hope that Washington manages to stay on the right side of this sea change.