In a strongly worded decision that faulted the state's use of the death penalty as "arbitrary" and "racially biased," the Washington state Supreme Court on Thursday abolished capital punishment.
The 5-4 ruling, which makes the state the latest in a growing number to outlaw the death penalty either through legislation or the courts, effectively makes permanent a four-year moratorium on the death penalty in Washington. The court said that eight people on death row must have their sentences converted to life in prison.
“We hold that Washington's death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote. “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”
Gov. Jay Inslee hailed the decision and described it as a “hugely important moment in our pursuit for equal and fair application of justice.” The Democratic governor, who imposed the moratorium after initially supporting the death penalty, said executing prisoners “serves no criminal justice goal.”
While the death penalty has been legal in the U.S. since the Supreme Court reinstated it in 1976 and a majority of states still allow it, support for it — and the use of executions — have hit all-time lows in recent years. About 54% of Americans support the death penalty for murder convictions, down from 78% in the mid-1990s, according to a Pew Research Center survey released this year.
Twenty states and the District of Columbia now outlaw capital punishment. Eight of those made the move this century.
“This is a major decision in Washington,” said Robert Dunham, executive director of the Death Penalty Information Center. The Washington, D.C.-based center, which is critical of the death penalty, tracks executions and policy nationally.
“Even though there was a moratorium in Washington, it did not mean that people could not still get a death sentence or that the moratorium would never be lifted,” he said. This decision makes permanent what was temporary.”
Washington state law allows the death penalty via lethal injection or, if an inmate opts for it, hanging. The last state execution was in 2010.
The number of annual executions in the U.S. hit a high of 98 in 1999. Last year, there were 23. On top of the state-by-state outlawing of the punishment, supporters of the death penalty have faced several other hurdles in places where it’s legal.
In addition to Inslee in Washington, governors in Oregon and Colorado have imposed moratoriums on the death penalty while they are in office. In recent years, pharmaceutical companies have also gone to battle in court with states to block them from using their drugs in lethal injections.
Last year, the state of Arkansas attempted to execute eight men in 11 days before its lethal drugs expired amid conflicts with drug suppliers. Texas, Oklahoma and Nevada have also come into conflict with drugmakers or the Food and Drug Administration over lethal drugs.
“Essentially, we are seeing the gradual erosion of the death penalty one state at a time,” said Dunham.
Nebraska has bucked the trend. Voters in the state passed a ballot initiative reintroducing the death penalty a year after lawmakers abolished it in 2015. In August, the state became the first to use the opioid fentanyl for an execution when it put to death a 60-year-old man convicted of two murders in 1979.
The case in Washington was brought by Allen Eugene Gregory, who faced death for first-degree murder in the rape and killing of a 43-year-old woman, Geneine Harshfield, in 1996.
The inmate’s lawyers presented justices with a commissioned report on how race plays into the “the imposition of the death penalty.”
Gregory, 46, is black. Of the seven other death row inmates, five are white and two are black.
The court agreed with arguments by Gregory’s lawyers that the death sentence was applied arbitrarily.
In her opinion, Chief Justice Mary Fairhurst said the justices were “confident that the association between race and the death penalty is not attributed to random chance." She cited the state’s “case law and history of racial discrimination” and prosecutors who were "inflammatory” and “racially charged" in courts.
Four justices concurred with Fairhurst. The remaining four signed a separate opinion in which they agreed that accusations of racial bias “raise significant concerns” but that "other additional constitutional factors have become more apparent” as reasons to strike down capital punishment.
The court’s ruling was limited to the death penalty and not whether Gregory was guilty of the crime. Gregory, 46, was convicted in 2001 before he appealed, and the Supreme Court overturned his conviction in 2006. He was found guilty and sentenced again in 2012.