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Is Washington's death penalty imposed in a racially biased way?

The death penalty in Washington has been found unconstitutional three times in the past, and the Washington Supreme Court just found the same thing again. It did not find that the imposition of the death penalty was inherently unconstitutional. "The death penalty is invalid," the court found instead, "because it is imposed in an arbitrary and racially biased manner." Therefore, it violates both the U.S. and Washington constitutions' prohibitions on cruel punishment.

The decision came in the case of Allen Eugene Gregory, a man who was convicted of robbing, raping and murdering a 43-year-old woman in 1996 and then sentenced to death. Finding that, as currently applied, Washington's death penalty "fails to serve any legitimate penological goal," the high court converted the sentences of eight death row inmates, including Gregory, to life sentences.

Specifically, the court found that the death penalty is generally administered in an arbitrary fashion. It is applied unequally depending, for example, on where the crime occurred, the available budgetary resources, and the race of the defendant.

In coming to its conclusion, the high court relied in large part on research by a University of Washington sociologist. She had reviewed death sentences in the state between 1981 and 2012 in order to identify the role that race played in those cases.

She found that black defendants were 4-1/2 times more likely to face a death sentence than white defendants who had committed similar crimes. Another factor in the decision to impose death was the size of the black population in the county where the crime occurred, according to the sociologist.

The court didn't just accept those findings without skepticism, however. Instead, a state-appointed commissioner evaluated the research for strengths and weaknesses. Chief Justice Mary E. Fairhurst reported that the commissioner's report had only increased the believability of the research.

Ultimately, the court concluded that, "at the very most, there is an 11 percent chance that the observed association between race and the death penalty in [the sociologist's] regression analysis is attributed to random chance rather than true association." In other words, there is an 89 percent chance or greater that the statistical differences observed were the result of impermissible racism.

In 1972, the U.S. Supreme Court ruled in Furman v. Georgia that the death penalty is unconstitutional when imposed in an arbitrary or capricious manner. When that is the case, death sentences are "cruel and unusual in the same way that being struck by lightning is cruel and unusual."

As the Washington Supreme Court specifically found in this case, the Washington Constitution's prohibition on cruel punishments offers greater protection even than the federal Eighth Amendment's prohibition on cruel and unusual punishments.

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