The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”
State v. Gregory
From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):
“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of 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. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”
Before this fuels great excitement regarding abolishing capital punishment in this country, it’s important to note that Gregory starts off with the following caveat:
Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981). And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.
The Washington Supreme Court is not holding the death penalty “per se unconstitutional.” Instead, it rules based upon how the state’s capital punishment law is carried out, and finds it is being “imposed in an arbitrary and racially biased manner.”
The administration of the state law by the state violates the state constitution, according to the state supreme court.
State Constitutional Holding Independent From Federal Constitution Application
The Washington Court takes great care to make sure that its ruling is clearly based solely upon its state constitution:
At the very least, article I, section 14 cannot provide for less protection than the Eighth Amendment, and in this case, we interpret it independently from the federal counterpart. Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles. See Long, 463 U.S. at 1041-42.
State Constitution vs. Federal Constitution
Some may be surprised that a state supreme court can make a ruling that can withstand United State Supreme Court scrutiny. Well, aside from some procedural arguments there is the overall reality that state governments do exist independently from the federal government. As long as a state supreme court reads its state constitution to be more protective than the federal counterpart, its ruling will hold.
This is discussed in its cited case of Michigan v. Long,463 U.S. 1032, 1041-1042, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), where SCOTUS states:
The principle that we will not review judgments of state courts that rest on adequate and independent state grounds is based, in part, on “the limitations of our own jurisdiction.” Herb v. Pitcairn, 324 U. S. 117, 125 (1945).
Will Gregory result in more capital punishment challenges being filed before state supreme courts, arguing against their death penalty laws on “adequate and independent state grounds” and not federal constitutional arguments?
Perhaps. Of some interest, let’s not forget that this month marks the October 2016 anniversary of Hurst and Perry opinions by the Florida Supreme Court insofar as the Florida Death Penalty Law. Something to ponder.