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)

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)

Washington’s Solutions Limit eligibility Narrow prosecutorial and jury discretion Mandatory review

Washington’s Solutions Limit eligibility to aggravated first degree murder Started with 10 aggravating circumstances; now 14 Interpreted broadly

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 doubt

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.

Washington’s Failures: Random Application Since 1981: ~ 300 adults convicted of aggravated murder 5 executed 9 on death row These 14 not worse than the 286

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.

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?

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.

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. It appears that “African American defendants are more likely to receive the death penalty than Caucasian defendants,” and we should study “whether the disparity is statistically significant.”

Current Litigation: State v. Gregory African American man sentenced to death for aggravated murder of one white woman in Pierce County

Current Litigation: State v. Gregory He was 24 years old at time of crime Only prior felony was theft of a skateboard

Beckett Report

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 murder

Analysis and Results Controlling for case characteristics like: Number of victims Number of aggravating circumstances Number of mitigating circumstances Criminal history Victim suffering

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.

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

Questions / References Beckett Report: https://lsj.washington.edu/sites/lsj/files/research/capit al_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