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DUPS Amicus: Washington’s ‘Outlaw’ of Death Penalty


In the phenomenal case of State of Washington v Gregory,[1] the Washington State’s Supreme Court declared the unconstitutionality of death penalty laws on 11 October 2018. The Courts reached this decision on the basis that the laws were imposed in an arbitrary and racially biased manner, which also failed to serve any legitimate penological goal as administered in Washington. Thus, there was a violation of article I, section 14 of the state constitution which provides that ‘(e)xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.’[2]

Facts of the case

In 1996, Allen Eugene Gregory raped, robbed, and murdered Geneine Harshfield in her home. In 1998, Gregory was investigated for a separate rape crime based on allegations by R.S. After matching Gregory's DNA to that found at Geneine Harshfield's murder scene, the State charged Gregory with aggravated first-degree murder. The first sentence was overturned by the Supreme Court due to procedural impropriety but the subsequent trial similarly saw Gregory convicted and sentenced to death.

Decision of the case

The case confirmed the long-standing belief that capital punishment is ‘administered disproportionately against racial minorities’.[3] The expert evidence relied upon drew the conclusion that ‘Black defendants were between 3.5 and 4.6 times as likely to result in a death sentence as proceedings involving non-Black defendants’.[4] The Supreme Court confidently drew the correlation between race and the imposition of death penalty, affirming the view that racial discrimination has plagued the sentencing of criminal convicts. This was previously asserted by the majority in State v Saintcalle,[5] which stated that ‘the fact of racial and ethnic disproportionality in [Washington's] criminal justice system is indisputable.’[6] Moreover, in cases such as State v Walker,[7] the inherent racial prejudice was blatantly used by prosecutors to reach a death sentence where they ‘highlight(ed) the defendant's race —his blackness— in a case where that had absolutely no relevance’.[8] Therefore, the fact that the death penalty was imposed in an arbitrary manner which offends the society’s standards of decency, it was held to be unconstitutional.[9] This meant that Gregory and all others on death row were entitled to relief from their death sentences, with their sentences converted to life imprisonment without parole.

Implications of the case

Whilst heartening to see another State in the United States outlaw the death penalty legislation, the Washington State Supreme Court was not conclusive as to the legality of death penalty in and of itself. From the decision of the case, the Justices were clear to enunciate that ‘the death penalty is not per se unconstitutional’,[10] since they could not ‘substitute moral judgment for that of the people of Washington’.[11] This leaves the door open to the possibility that the legislature may enact a ‘carefully drafted statute’[12] which would not offend constitutional rights, that applies uniformly in a way that is not ‘freakish and wanton’.[13] So far as this is a landmark decision which serves as a beacon of light in the fight towards abolition of death penalty, death penalty laws could insinuate itself into Washington once again with well-drafted legislation. Therefore, efforts are still needed to raise awareness amongst the people of the defects of death penalty so that a real change can be effected, and effected to last.

Li Tong Yip

DUPS Amicus

3 February, 2019


[1] 427 P3d 621 (Wash 2018).

[2] US [Washington] Const, Article 1, Section 14.

[3] ‘The Obstacles – Race’ (Amicus ALJ) <> accessed 27 January 2019.

[4] Gregory (n 1), [26].

[5] 309 P3d 326 (Wash 2013).

[6] ibid, [21].

[7] 341 P3d 976 (Wash 2015).

[8] ibid, [46].

[9] Gregory (n 1), [30].

[10] ibid, [1] and [33].

[11] ibid.

[12] Gregg v State of Georgia 96 S.Ct. 2909 (Ga 1976), [27].

[13] State of Washington v Cross 132 P3d 80 (Wash 2018), [87].

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes above.

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