Washington Supreme Court strikes down the death penalty

Allen Eugene Gregory was not a very good person. In 1996 he robbed, raped and murdered a woman. Two years later he was investigated for another rape. During that investigation police discovered evidence that tied Mr. Gregory to the robbery, rape and murder.

Mr. Gregory was convicted of aggravated first degree murder in the 1996 case. The jury sentenced him to death.

He was also convicted of the 1998 rape. The Washington Supreme Court later reversed the rape conviction.

On appeal to the Washington Supreme Court, the death sentence was overturned and the case remanded because the state relied upon the (reversed) rape conviction in the penalty phase of the trial.

In a new punishment hearing, a second jury then sentenced Mr. Gregory to death.

In the meantime, prosecutors learned that their complaining witness in the rape case lied at the first trial. Prosecutors, realizing they couldn't rely on their witness to tell the truth, then dismissed the rape cases.

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In 1972 in Furman v. Georgia, the US Supreme Court declared the death penalty to be unconstitutional in its application. The Court held that states had imposed the death penalty in "arbitrary and capricious manner."

Three years later a ballot initiative in Washington passed making the death penalty mandatory for specified offenses. The following year, in Woodson v. North Carolina, the US Supreme Court held that mandatory death sentences were also unconstitutional.

Washington then passed a statute that called for a sentencing hearing where evidence of aggravating factors, as well as mitigating factors, would be presented to a jury. If the jury found an aggravating circumstance and deemed the mitigating factor insufficient to warrant mercy, a death sentence could be imposed.

The Washington Supreme Court struck down that statute because it allowed the state to impose the death penalty on a defendant who demanded his constitutional right to a trial, but it did not impose it on defendants who pleaded guilty.

The death penalty statute was then rewritten to require automatic review (a proportionality review) of death sentences by the state Supreme Court to determine whether there was sufficient evidence to uphold the death sentence, whether the death sentence was disproportionate to the penalty assessed in similar cases, whether passion or prejudice contributed to the death sentence and whether the defendant had an intellectual disability.

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Mr. Gregory appealed his death sentence, arguing that it was disproportionate to other sentences meted out for similar crimes and that is was applied in an arbitrary manner in his case because he was black.

In 2014, Katherine Beckett co-authored a report that found there was a wide disparity among counties when it came to imposing the death penalty and that a portion of that disparity had to do with the black population in the county. She also pointed out that a black defendant was four-and-a-half times more likely to receive a death sentence than a white defendant.

Like many states, Washington's state constitution has a provision outlawing cruel and unusual punishment. And, like in many states, the protections granted under that clause are stronger than the protections afforded under the 8th Amendment to the US Constitution.

And it was that clause that the Washington Supreme Court relied upon in striking down the Washington death penalty statute for the fourth time.

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In 2000 about 50.3% of the population in Texas was white. Latinos made up about 34.2% and Blacks made up 12%.

Since 1976, 34.5% of the inmates murdered at the hands of the state were Black while 55.6% where white and 8.2% were Latino. Over the years, 75.6% of the victims in death penalty cases were white while only 15.3% were Black  and 6.9% were Latino.

For a long time Harris County was known as the death penalty capital of the United States - sending more people to death row each year than many countries. In the 2000 census, whites made up 56.5% of the county's population while Blacks made up 18.9% and Latinos 32.9%.

It is clear from the numbers alone that the death penalty is applied disproportionately based on race. I don't have the knowledge of statistics to run regression analysis to determine how much weight is placed on race in death penalty decisions, but when Black inmates are executed at a rate three times higher than their proportion of the general population, something is wrong.

Capital punishment is little more than modern day lynching with the imprimatur of the court. The fact that those on the right favor it with such fervor tells you that whites are overwhelmingly in favor of killing inmates (the fact that preachers and so-called religious conservatives support it tells you that they are nothing more than fucking hypocrites). The death penalty is a tool of oppression and social control.

The death penalty is applied in an arbitrary and capricious manner and nothing can change that. It is high time we moved beyond barbarism.

New per se limit in Washington is problematic

On November 6, 2012, the State of Washington legalized the recreational use of marijuana. On December 6, 2012, the State of Washington is changing its drunk driving statutes in response.

As things now stand, if a driver is suspected of driving under the influence of marijuana the prosecutor must prove that the driver had lost the normal use of his mental or physical faculties due to the use of marijuana. The decision is then left in the hands of the jury to determine whether or not the state proved up its case.

On December 6 that will change. Instead of relying on a drug recognition evaluator to give his opinion on whether or not Johnny is hopped up on too much weed, the state can look to the results of a blood test.

Should a driver show a concentration of THC greater than 5 nanograms, he or she will be considered per se under the influence - in much the same manner as a driver with an alcohol concentration of greater than .08 grams per 210 liters of breath. While there are scientific studies that purport to demonstrate that THC concentrations over a certain level correlate to impairment, the studies don't take into account the shortness of the "high" and the way in which the body stores THC.

The buzz one gets from marijuana comes and goes quickly. The THC, however, is stored in the body's fat cells for up to 30 days. This means that a fair amount of THC in the body may be inactive. In other words, a reading of 5 nanograms doesn't necessarily mean that a motorist is impaired. 

While I understand those who wanted to create a per se limit for THC, I must fault their rush to create a number without taking into account the problems inherent in such an approach. For one, the battery of roadside exercises police use to make their arrest decisions in DWI cases have never been tested on people who have smoked marijuana.

Without the "rigorous" testing NHTSA conducted on their exercise protocol, we have no way of knowing what levels of THC concentration correlate to what levels of performance. Without that correlation, any per se limit is just a number grabbed out of a hat.

Such a set-up will only serve to deprive those accused of driving under the influence of marijuana of a defense to the charge, as the court will presume that a driver with a THC concentration of 5 nanograms or higher is under the influence. That presumption will be made with or without signs of impairment.

While the referendum in Washington is a good sign that folks are starting to think hard about the failures of the war on drugs and the futility of treating drug use as a criminal matter and not a public health issue, the creation of a new per se limit is a troubling reminder that junk science lives on.