Problems 40 years ago - PowerPoint Presentation

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Problems 40 years ago

A.

The death penalty was randomly applied

“Of all the people convicted of [murder], many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”

Furman v. Georgia

, 408 U.S. at 309-10 (1972) (Stewart, J., concurring)Slide3

Problems 40 years ago

B.

The death penalty was not so randomly applied

“[I]f any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”Furman v. Georgia, 408 U.S. at

310 (1972) (Stewart, J., concurring)Slide4

Washington’s Solutions

Limit eligibility

Narrow prosecutorial and jury discretion

Mandatory reviewSlide5

Washington’s Solutions

Limit eligibility to aggravated first degree murder

Started with 10 aggravating circumstances; now 14

Interpreted broadlySlide6

Washington’s Solutions

Narrow discretion

File death notice only “

when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency”Jury must find absence of sufficient mitigating circumstances unanimously and beyond a reasonable doubtSlide7

Washington’s Solutions

Mandatory proportionality review

Supreme Court must determine whether sentence is excessive or disproportionate to the penalty imposed in other aggravated murder cases.

Washington Supreme Court has never reversed a death sentence under this provision.Slide8

Washington’s Failures: Random Application

~ 300 adults convicted of

aggravated murder

5 executed 9 on death row These 14 not worse than the 286

Since 1981:Slide9

Washington’s Failures: Random Application

Equal justice under the law is the state’s primary responsibility. And in death

penalty cases, I’m not convinced equal justice is being

served.Slide10

Washington’s Failures: Random Application

The death penalty is like lightening, randomly striking some defendants and not others. Where the death penalty is not imposed on Gary Ridgway, Ben Ng, and Kwan Fai Mak, who represent the worst mass murders in Washington's history, on what basis do we determine on whom it is imposed? Slide11

Washington’s Failures: Random Application

One could better predict whether the death penalty will be imposed on Washington’s most brutal murderers by flipping a coin than by evaluating the crime and the defendant.Slide12

Washington’s Failures: Not-so-random

I concur with Justice Fairhurst's amply supported analysis of the random

and arbitrary nature of the imposition of the death penalty in Washington. I write separately to add my deep concern that

the death penalty might be much more predictable than we have recognized. I refer, of course, to the race of the defendant.Slide13

Current Litigation:

State v. Gregory

African American man sentenced to death for aggravated murder of one white woman in Pierce CountySlide14

Current Litigation:

State v. Gregory

He was 24 years old at time of crime

Only prior felony was theft of a skateboardSlide15

Beckett ReportSlide16

The data set

Trial Judge Reports for aggravated murders (adults)

Supreme Court uses them for proportionality review

They include information about the crime and defendant for each aggravated murderSlide17

Analysis and Results

Controlling for case characteristics like:

Number of victims

Number of aggravating circumstances

Number of mitigating circumstances

Criminal history

Victim sufferingSlide18

Analysis and Results

Most

of the variation in sentencing cannot be explained by

case characteristics.

African Americans are 4.5 times more likely to be sentenced to death than other defendants.Slide19

Response

It’s time to call it. The death penalty is unconstitutional.Slide20

Questions / References

Beckett

Report:

https://lsj.washington.edu/sites/lsj/files/research/capital_punishment_beckettevans_10-1.6.14.pdf

Video of oral argument in

State v. Gregory

:

http://www.tvw.org/watch/?eventID=2016021270

E-mail

:

lila@washapp.org