Yesterday, the Washington supreme court acknowledged that the state’s death penalty scheme is imposed in an arbitrary and racially biased manner and struck it down. The law lacks “fundamental fairness” the court said.

African Americans make up 13 percent of the population, but they make up 42 percent of Washington’s death row — black defendants in Washington are four and a half times more likely than white defendants to receive a sentence of death, according to the ACLU.  Many studies across the nation have found the race of the victim often determines who is sentenced to death, with homicides of white victims more likely to result in the death penalty.

The ruling came in State v. Gregory, a case brought by prisoner Allen Eugene Gregory, who was convicted of the 1996 murder of  43-year-old Geneine Harshfield, in Pierce County.

With yesterday’s decision, Washington becomes the 20th state without a death penalty. The eight people currently on Washington’s death row will have their sentences commuted to life.

The Washington Appellate Project’s Lila Silverstein and Neil Fox represented Gregory in his appeal to the state supreme court and challenged the constitutionality of the state’s scheme.

In its friend-of-the court brief filed in February 2016, the ACLU said that in addition to being racist, the state scheme is arbitrary: “One [defendant] may risk losing his very life, while another, a mere county over, has his life spared.” The ACLU pointed out as an example that in Okanogan County the death penalty hasn’t been charged since 1981, while in Pierce County the death penalty has been charged in 45 percent of its aggravated murder cases.

Seventy-five former or retired judges, all of whom are familiar with the role of the death penalty in the criminal justice system, joined the ACLU in a friend-of-the-court brief asking the court to recognize the failures of the state’s death penalty.

The system the state supreme court found unconstitutional in Washington is very similar to that in California, according to death penalty attorney and DPF board member, Robert M. Sanger.

“Since the death penalty has been reinstated, the issues of racism, arbitrariness and lack of penological purpose have been raised in every case I have filed on behalf of a person of color in the Supreme Court (at least four of them) over the years,” Sanger says. “We are not alone in this, of course, and probably every such case filed, either on direct appeal or habeas, has raised the same issues. So, fortunately we are raising the issues and updating the research but, unfortunately, we are not getting an audience in either our supreme court or the United States Supreme Court.”

According to the ACLU, the Washington supreme court is the third state supreme court to strike down the death penalty in part because of concerns about the inherent racial disparities, joining Massachusetts (decided in 1980) and Connecticut (decided in 2015). Of the 30 states that retain the death penalty, three have official governor moratoriums and several more have de facto moratoriums. Ten states that authorize the death penalty have not had an execution in the last decade.

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