The “death penalty is invalid because it is imposed in an arbitrary and racially biased manner,” the Supreme Court decided in a ruling published Thursday.
Washington’s Supreme Court unanimously struck down the death penalty as unconstitutional Thursday, ruling the state’s 37-year-old capital-punishment law is “invalid because it is imposed in an arbitrary and racially biased manner.”
The court’s ruling in the appeal by convicted murderer Allen Eugene Gregory means he and seven other men now on Washington’s death row for aggravated-murder convictions will have their death sentences commuted to terms of life in prison without a chance for parole.
Chief Justice Mary Fairhurst, writing for the court’s majority, said the court concluded that the state’s death penalty violates Washington’s constitutional prohibition on “cruel punishment” and “lacks fundamental fairness.” The opinion cited a recent statistical analysis of capital-murder cases by University of Washington sociologists that found significant “county-by-county variations” in death sentences, and that black defendants are about four times more likely to get the death penalty in Washington than white offenders.
The last inmate to be executed in Washington was Cal Coburn Brown in 2010. He’d been convicted of the rape and murder of 21-year-old Holly Washa, of Burien.
“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,” Fairhurst wrote on behalf of five justices. Four other justices agreed, but emphasized in a concurring opinion that “other additional constitutional factors” also undermine the legality of Washington’s death penalty.
Neil Fox and Lila Silverstein, the lawyers who argued Gregory’s appeal, hailed the ruling as historic and as recognition that Washington’s constitution won’t tolerate unequal justice.
“By striking down the 1981 death-penalty statute, Washington now joins the overwhelming majority of the world’s democracies in its respect for human life,” Fox said in a statement.
With Thursday’s ruling, Washington becomes the 20th state to overturn or abolish death as a legal punishment in what may be the final blow in a decades-long battle in this state. Three previous versions of Washington’s death penalty were invalidated under Supreme Court rulings, but the state revised and revived the punishment each time.
The last formidable legal challenge to Washington’s current death-penalty law fell short in 2006, when the state’s high court ruled 5 to 4 against a similar argument that the punishment was applied unfairly. Among the defense arguments was pointing out how Gary Ridgway, the so-called “Green River Killer” responsible for the deaths of at least 49 women, avoided the death penalty in a plea agreement with King County prosecutors. Many defense lawyers at the time said that if Ridgway wasn’t a candidate for capital punishment, nobody was.
Since Thursday’s ruling was based on Washington’s constitution — not the federal Constitution — it cannot be appealed to the U.S. Supreme Court, said Washington Attorney General Bob Ferguson, a death-penalty opponent.
Gov. Jay Inslee, who once supported capital punishment but issued a moratorium on Washington executions in 2014, said he expected the ruling to end the debate over capital punishment once and for all in this state.
“This is a full and final decision by the state Supreme Court, and absent any legislative action, there will be no more capital punishment in the state of Washington,” said Inslee, adding he would veto any bill seeking to resurrect the death penalty.
Leonid Milkin, meanwhile, called the ruling “garbage.”
The Kirkland man’s wife, their two young children and his sister-in-law were murdered in 2006 by Conner Schierman, the last person in Washington to be sentenced to death. “I think it’s horrible, politically motivated, very disappointing and wrong,” he said.
Snohomish County Prosecutor Mark Roe agrees with such sentiments.
“I am someone who unapologetically believes that the death penalty has a place, and can sometimes be a just punishment,” said Roe, who has sought the punishment.
But other one-time proponents of the death penalty have changed their minds. Capital punishment has been a “four-decade experiment in our state that has been a failure,” King County Prosecuting Dan Satterberg said Thursday, citing cases that took 20 years or more to resolve with prosecution costs of tens of millions of dollars.
Death sentences are often reversed on appeal and do not contribute to public safety, he said. Satterberg, who had previously sought death sentences in some cases, last year called for the repeal of the death penalty in Washington.
In a poll released in July by Public Policy Polling, 69 percent of likely voters in Washington said they preferred sentencing people convicted of murder to life in prison rather than to death. Nationally, opposition to the death penalty stands at 39 percent, according to a Pew Research Center Poll released in June.
Pierce County Prosecuting Attorney Mark Lindquist, whose office argued the case in favor of the death penalty, said Thursday he believes state law should reflect the will of the people, with citizens asked to vote on whether capital punishment is “consistent with our values.”
He suspects such a vote would show Washington residents are moving away from it due to concerns over bias and other issues.
“Before this ruling, the death penalty in Washington was already down to its last few breaths,” Lindquist said. “Now, it’s official; it’s dead.”
State v. Gregory
The high court’s ruling was handed down in the case of Gregory, who is black, and who was convicted of the 1996 rape, robbery and murder of 43-year-old Geneine Harshfield in Tacoma. After his arrest in 1998 for raping a different woman, Tacoma police obtained DNA that linked Gregory to Harshfield’s slaying.
In 2001, a Pierce County jury convicted him of aggravated murder for killing Harshfield, and separately convicted him of three counts of rape in the 1998 case. The jury in the murder case considered the unrelated rape convictions when determining Gregory’s death sentence.
During his first appeal, the Supreme Court affirmed Gregory’s murder conviction, but reversed the rape convictions and his death sentence on grounds that prosecutors engaged in misconduct during closing arguments and the jury inappropriately relied on the rape case during his murder sentencing.
The state later dropped the rape case after the alleged victim recanted her story, but the murder case went back to the trial court for resentencing. A new jury also sentenced Gregory to death.
During his latest appeal, the state’s highest court did not revisit arguments over Gregory’s guilt, noting his murder conviction had already been appealed and confirmed.
But Gregory’s lawyers also presented other arguments in light of a 2012 case, State v. Davis, in which the high court grappled with the death penalty’s “proportionality review” to ensure fairness in death sentences. In the Davis case, Justice Charlie Wiggins specifically called on experts to present evidence on the “statistical significance of the racial patterns” in capital-murder trial reports.
Fox and Silverstein, Gregory’s appellate attorneys, commissioned an analysis by UW sociologists Dr. Katherine Beckett and then-Ph.D candidate Heather Evans as part of the case. The team evaluated all of Washington’s aggravated-murder trial reports from 1981 to 2014, finding bias based on race and location of the crime. The American Civil Liberties Union (ACLU) also filed a friend-of-the-court brief supporting Gregory’s position, and dozens of former state judges signed on to urge the court to overturn the death penalty.
Seattle lawyer Jeffery Robinson, a deputy legal director for the ACLU’s national office, said he knows of just two other states — Massachusetts and Connecticut — that have based rulings against death-penalty laws on racial factors.
“Today’s ruling is unique in that all (justices) — nine to zip — said this is the reason,” Robinson said. “I’m very proud that our Supreme Court had the courage to call out racial bias for exactly what it is.”
He and Silverstein each said they weren’t surprised by the ruling, given the Supreme Court’s adoption of a new rule in April that aims to eliminate racial bias in jury selections.
“They sent a message then that Washington state is not going to tolerate race discrimination in the justice system,” Silverstein said. “I think today’s ruling is a continuation of that.”
Pierce County Deputy Prosecutor John Neeb, who obtained the death penalty for Gregory and argued the appeal before the Supreme Court, said he was disappointed, but not entirely surprised, by the ruling.
“It’s extremely frustrating to have spent as much time working on this and other death-penalty cases only to have this decision come out now,” he said.
Several hours after the decision came down, the Department of Corrections was still reviewing it and hadn’t notified any death-row inmates about it, said Jeremy Barclay, a department spokesman. Legal information is typically relayed to offenders through their attorneys, he added.
Gregory’s lawyers had scheduled an early afternoon phone call with their client in the Walla Walla State Penitentiary to inform him of the ruling. “We look forward to relaying the good news to our client,” Silverstein said.
Corrections officials likely will make decisions about decommissioning Washington’s death row in the coming days, Barclay said.
Among the death-row inmates who will avoid a death sentence under Thursday’s ruling are serial killer Robert Lee Yates, who killed 15 women, and Dayva Cross, who murdered his wife and two stepdaughters in 1999.
As well as Schierman, the man who killed Milkin’s family members.
“The death penalty is reserved for people like them,” Milkin said of Washington’s death-row killers. “I want to reach out to legislators who are the only ones who can fix this and I hope they will.”
Seattle Times staff writer Joseph O’Sullivan contributed to this report.