Washington Supreme Court tosses out state’s death penalty

OLYMPIA – Washington’s death penalty was struck down Thursday by the state’s highest court, which said the law is applied arbitrarily and in a racially biased manner.

A majority of the court said the death penalty is not applied equally in all cases, but can depend on where the crime took place, whether the prosecuting county has the budget to pursue it or the race of the defendant.

“The death penalty, as administered by our state, fails to serve any legitimate penological goal,” the majority opinion written by Chief Justice Mary Fairhurst states. Because of that, it violates the state constitution.

A concurring opinion said the system is so flawed that it “constitutionally cannot stand.” All nine justices signed one or both opinions.

Gov. Jay Inslee, who has called unsuccessfully for the Legislature to abolish the death penalty and in 2014 placed a moratorium on executions during his term in office, hailed the decision Thursday morning.

The ruling means the state is “less capricious and less tainted by racial bias,” Inslee said at a news conference. “Equal justice is a hallmark of democracy.”

The court struck down the death sentence of Allen Eugene Gregory, who was convicted of the 1996 rape, robbery and murder of a woman in her Tacoma home. Gregory was arrested two years later for a separate rape, and a blood sample obtained in that case tied him to the earlier murder through DNA analysis. After he was convicted in a 2001 trial, the jury in a separate procedure determined there weren’t sufficient mitigating circumstances to merit leniency and sentenced him to death.

The Supreme Court later overturned some of the rape convictions and ordered a new sentencing, and a new jury again sentenced him to death. After that, a statistical study by the University of Washington of the death penalty in state, which Gregory relied on for his latest appeal, revealed differences in the way capital punishment is applied.

“It is now apparent that Washington’s death penalty is administered in an arbitrary and racially biased manner,” Fairhurst wrote.

The ruling was applauded by the state’s Catholic bishops and the Washington State Catholic Conference, which called it “a move towards greater justice and greater respect for life at all stages.”

But it was criticized by the Catholic League for Religious and Civil Rights because Washington still has legalized abortion.

“Does this make Washington state pro-life?” league president Bill Donohue wrote in an email. “Only when it comes to saving the lives of serial rapists, serial killers and genocidal terrorists.”

The decision marks the fourth time the state’s highest court has struck down the death penalty in Washington. Previous laws were ruled unconstitutional in 1972, 1979 and 1981.

But capital punishment has public and legislative support. After a U.S. Supreme Court ruling in 1974 put the death penalty on hold nationally, Washington voters passed a state capital punishment law in 1975 by more than 2-to-1. In 1981 the Legislature passed a bill reinstating the death penalty and has amended it several times since then.

When the Legislature considered Inslee’s proposal to abolish capital punishment earlier this year, the Senate passed it on a 26-22 vote after refusing to consider amendments to allow the death penalty in cases involving the murder of police officers or prison guards. The bill went to the House, where it received a hearing and was voted out of committee, but never came to the floor for a full vote.

Sen. Mike Padden, R-Spokane Valley, the top Republican on the Law and Justice Committee a former district judge, said he was troubled by the court’s decision to essentially do away with the death penalty, rather than to deny it in a particular case. Circumstances will never be equal in a state where 39 prosecutors exercise their discretion whether to seek the death penalty for individual cases.

“I think it should be rarely applied,” Padden said. “I don’t think we need to enshrine pure equality. Things don’t work that way in the real world.”

The state Department of Corrections reports that 78 men, and no women, have been executed in Washington since 1904, the most recent in 2010. Eight men, including Gregory, were awaiting execution when the court handed down its ruling Thursday morning.

The ruling converted those death sentences to life in prison without parole. Because the ruling is based on the state constitution, it can’t be appealed to the U.S. Supreme Court, Attorney General Bob Ferguson said.

But the ruling does not erase the death penalty from state law, it merely makes it impossible to execute someone as the law is currently written. Ferguson said he will ask the 2019 Legislature to “take the final step” and abolish the death penalty, replacing it with life in prison without parole.

“We’ve been here before,” Ferguson said of previous rulings that pointed out problems with capital punishment. “In the past, the Legislature has taken steps to fix it.”

Padden said he thought it would be difficult to craft changes to answer the court’s concerns, as well as to get the support in the Legislature to pass it. A citizens’ initiative could try, but that may not be possible either, he said.

“The bar may be just too high,” he said.

Inslee said he would sign a bill that abolished the death penalty if the Legislature sent him one, and veto any attempt by lawmakers to reinstate it.

“I do not believe that is possible,” he said, likening it to the biblical reference of a getting a camel through the eye of a needle. “I think it would be a grand waste of time.”

Asked what he would say to the families who believe the death penalty is justice for murdered victims, Inslee said he respects their feeling and acknowledges their pain as indescribable. But the ruling gives them certainty that all appeals and hearings are ended. Instead of an execution, those families “now have the finality these heinous people are going to die in prison.”