Washington’s Supreme Court unanimously struck down the state’s death penalty Thursday based on the way that it has been used in an arbitrary and racially discriminatory manner. It was a surprising basis since usually capital punishment is rejected as cruel and unusual punishment. It is the punishment, not the imposition of the punishment, that is the common argument against executions.

Washington has had a moratorium on executions since 2014. Chief Justice Mary Fairhurst wrote that “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.”

Rather than demand greater consistency and coherence in the use of the punishment, the Court struck down its use entirely.  I am no fan of capital punishment but I always viewed the question to turn on the nature of the punishment and not its administration.  Given the alternative basis, the Court left open the possibility that a non-arbitrary law could be written: “We leave open the possibility that the legislature may enact a ‘carefully drafted statute’ to impose capital punishment in this state, but it cannot create a system that offends constitutional rights.”

The ruling came in the case of Allen Eugene Gregory, who is African American, who was convicted of raping, robbing and killing Geneine Harshfield, 43, in 1996. Gregory commissioned a study on the effect of race and county on the imposition of the death penalty by Katherine Beckett & Heather Evans, The Role of Race in Washington State Capital Sentencing, 1981-2012 (Jan. 27, 2014) . Beckett performed a new regression analysis and updated her report. Katherine Beckett & Heather Evans, The Role of Race in Washington State Capital Sentencing, 1981- 2014 (Oct. 13, 2014). The court relied heavily on her analysis over the objections of the state and earlier ordered a hearing to update her analysis.

The Court noted:

“The most important consideration is whether the evidence shows that race has a meaningful impact on imposition of the death penalty. We make this determination by way of legal analysis, not pure science. Davis, 175 Wn.2d at 372, 401 (“We acknowledge that ‘we are not statisticians.'” (quoting Wiggins, J., concurring in dissent)). At the very most, there is an 11 percent chance that the observed association between race and the death penalty in Beckett’s regression analysis is attributed to random chance rather than true association. Commissioner’s Report at 56-68 (the p-values range from 0.048-0. Ill, which measures the probability that the observed association is the result of random chance rather than a true association). Just as we declined to require “precise uniformity” under our proportionality review, we decline to require indisputably true social science to prove that our death penalty is impermissibly imposed based on race.”

The decision this week will result in the conversion of eight death sentences on Washington’s death row to life in prison.

Here is the opinion: Washington v. Gregory