"How Statistics Doomed Washington State’s Death Penalty"

The title of this post is the title of this new commentary at The Atlantic by Garrett Epps.  Here is an excerpt (with links from the original):

Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning.  And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.

The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation.  The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”

The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.”  “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment.  Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.  

 Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law,  a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles.  That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde.  It was a good idea then and it’s a good idea now.  State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution.  There’s something bracing about this kind of judicial declaration of independence, when it is done properly.

Prior related posts:

• Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
• Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)