Neil M. Fox is a criminal defense lawyer in Seattle, Washington. Along with Lila J. Silverstein, he was counsel of record for the appellant in State v. Gregory, 427 P.3d 621 (Wash. 2018).
My paternal grandfather came from what is now Belarus, a small country that used to be in the former USSR, now nestled between Russia, Ukraine, Poland and Lithuania. It is the only European country that still has the death penalty. Executions in Belarus take place without notice either to the prisoners or their families. Condemned prisoners are taken blindfolded to a basement, where they kneel and someone shoots them in the back of the head.1
Capital punishment in the United States of America is different. We do not shoot people in the middle of the night in the basement. But the system in this country is no more fair, and no more humane. On the one hand, capital punishment in the U.S. is characterized by extreme arbitrariness and randomness. There is no apparent reason why the State kills some people, but not others. Serial killers and mass murderers regularly escape the death penalty, while others end up on death row for no apparent reason other than bad luck. On the other hand, the death penalty system in the U.S. is characterized by the opposite of randomness – race and class are the determinative factors that land someone on death row. Generally, the lethal combination of a white victim and a black defendant is what leads to execution, while there are no rich people on death row. Countless studies have verified this combination of arbitrariness and racism.2
Since the inequities of the death penalty exemplify all that is wrong with the American penal system, one would think that its days are numbered. But despite powerful pressures for abolition, there are powerful forces within this country that are wedded to the death penalty, and not just in the areas of the country that voted for Trump. At the time that Governor Gavin Newsom announced the recent moratorium in California – a key “blue state” – there were 737 inmates on death row in that state.3
Like California, Washington State is another purported liberal bastion, but it was a state where hanging was still practiced until the 1990s.4 The death penalty actually survived in so-called “blue” areas of the state, with recent major capital prosecutions taking place only in the large population centers of Western Washington (King, Snohomish and Pierce County).
In October of 2018, the Washington Supreme Court struck down Washington’s capital punishment system on state constitutional grounds in State v. Gregory.5 In this article, I want to put the Gregory case into a broader context – the political background of capital punishment in the United States and the development of opposition to the death penalty, including a discussion of the role (or non-role) of the National Lawyers Guild.
Opposition to the Death Penalty
Opposition to the death penalty has not been on the front burner of recent mass movements in the U.S. Activists against the death penalty tend to come from faith communities and groups of lawyers, such as the ACLU, the NAACP Legal Defense Fund and state affiliates of the National Association of Criminal Defense Lawyers. And although national initiatives connected to the Black Lives Matter movement have called for abolition of capital punishment,6 my own anecdotal experience over the past few years is that there have been few, if any, mass protests on the streets addressing capital punishment, even when activists are protesting against mass incarceration.
Perhaps because of the lack of street protests against the death penalty, the National Lawyers Guild has not been on the forefront of abolition, even as it has taken a vanguard position on prison abolition generally.7 The subject only occasionally comes up at national conventions, and the organization has not provided any support for capital defense lawyers – support such as legal training seminars, amicus briefing, the sharing of legal research, and recruitment of lawyers in states without the death penalty to do cases in states with the death penalty. While the NLG has a lot to be proud of for its national work in so many areas, as noted, other groups such as the ACLU or the NAACP Legal Defense Fund have been the main legal organizations fighting against the death penalty machinery. In Gregory, for instance, the ACLU provided extensive amicus support. The NLG did not.8
Yet, the NLG’s history as a leading left-wing legal organization has a lot to offer the struggle for abolition. Our radical analysis provides an opportunity to link opposition to the death penalty to a more general critique of society, a critique that is critically absent from, for example, purely moral opposition to the death penalty.9 Religious principles can go only so far given the powerful forces advancing an opposing conservative religious “eye for an eye” agenda, an agenda that forces many liberal politicians to the right as they are afraid of being attacked as “soft” on crime. Similarly, although awareness of DNA exonerations over the last 25 years has been a powerful force for abolition, a possible solution to the risk of error in capital prosecutions is simply to provide more resources to the defense – the idea that if capital defendants are provided with sufficient lawyers and investigators then there should no longer be any barriers to execution.
We need to expand objections to the death penalty from those based simply on morality or inefficiency to broader criticisms of our society as a whole. Only in this way can we link opposition to the death penalty to social movements working to change the very fabric of our country and the world, movements seeking to build a new society premised on principles of human rights, opposition to racism, and economic equality.
The Death Penalty as a Tool of Social Control
The NLG’s 2015 resolution on prison abolition noted the explicit link between prisons and capitalism, declaring that “prisons are designed to maintain economic and racial inequality, legitimize capitalism, and feed corporate wealth.”10 Modern capital punishment has its origins in the same forces – a need to legitimize capitalism and maintain economic and racial inequality. From its origins in 18th century England,11 the death penalty in the United States has always been a tool of the ruling classes used to control large groups of people who have not fit into dominant Anglo-American Protestant culture. These groups include the surviving Native Americans, the African slave population freed after the Civil War, Mexicans in territories seized in mid-19th century, Asians, and millions of Irish, Eastern European and Southern European immigrants. The ruling classes have always been afraid of the revolutionary potential of the masses, and executions and their attendant publicity were used as way to solidify power.
As an example, one need only read one of the first reported Washington Supreme Court decisions, from 1857, in which the court upheld the conviction and hanging of Chief Leschi for protecting his people against foreign invaders:
The prisoner has occupied a position of influence, as one of a band of Indians, who, in connection with other tribes, sacrificed the lives of so many of our citizens, in the war so cruelly waged against our people on the waters of Puget Sound.
It speaks volumes for our people that, notwithstanding the spirit of indignation and revenge, so natural to the human heart, incited by the ruthless massacre of their families, that at the trial of the accused deliberate impartiality has been manifested at every stage of the proceedings.12
Thirty years later, during a time of rising labor unrest, the State of Illinois hung four anarchist leaders who were leading attempts to obtain the 8 hour work day (the “Haymarket Martyrs”).13 The wave of anti-immigrant and anti-labor repression during and after the First World War led to the execution of anarchists Sacco and Vanzetti.14 The extraordinary execution of Ethel and Julius Rosenberg in 1953 should be viewed as an anti-semitic attempt to destroy labor militancy and the Communist Party in Cold War America,15 while Pennsylvania’s unsuccessful attempt to kill Mumia Abu- Jamal needs to be viewed in the context of state repression of the Black Panthers and the MOVE organization in Philadelphia.16
But no view of capital punishment in the U.S. would be complete without understanding the history of lynching. From 1882-1968, there were over 4000 lynchings in the United States.17 Most were carried out in public, along with the mutilation of the victims (often castration), with the tacit support of the police, local political figures and government bodies.18 Like the Nazi soldiers who happily photographed their genocidal acts against Jewish victims in Eastern Europe, there is extensive photographic evidence of lynchings, capturing the “party” like atmosphere enjoyed by the white spectators.19 While the majority of lynchings took place in the South as a way to terrorize the black population into submission, White settlers also used lynchings as a way to control the Mexican population in the newly conquered Southwest.20
Public lynching became politically unpopular by the 1950s and 1960s. The murder of Emmett Till in 1955 in Mississippi and his subsequent open casket funeral in Chicago burst into national consciousness at the height of the Cold War. Explicit unabashed racist brutality began to hurt U.S. foreign policy goals of building “soft power” to stop the advance of Soviet influence in the Third World. By the 1960s, the era of widespread public lynchings came to an end, particularly as the federal government began to assert more control over the states. Executions would now exclusively take place in more private settings (behind the walls of prisons), under color of law.21 H enceforth, the State would assume a monopoly on violence and executions, and would supposedly become more race neutral, subject to due process and the jury trial right.
The Near Abolition of the Death Penalty in 1972 and Its Subsequent Revival
In many senses, the death penalty is a remnant of medieval methods of punishment. As French philosopher Michel Foucault has explained, executions in the pre-modern era were part of a system of spectacle and gruesome public torture, by which the King’s authority was physically demonstrated upon the body of the condemned prisoner, in full view of the populace. The transition to modern society included the birth of the prison system, characterized by surveillance, regimentation, and attempts to change the prisoner’s consciousness, which itself served as the foundation of the carceral state.22 Modern states could more efficiently establish structures of social control without the primitive death penalty.
Thus, by the late 1960s and early 1970s, as part of a transition to modern liberal democracy, many countries began abolishing the death penalty.23 Within the U.S., greater social consciousness about race and class led to a general social liberalization of American society, which included opposition to capital punishment.24 Opposition was sufficiently widespread that supporters of capital punishment feared that jurors would not impose death, which led to the practice of “death qualifying” jurors – i.e. removing from capital juries those who had a principled opposition to the death penalty.25 With the Warren Court’s extension of federal constitutional protections to states and the expansion of federal habeas jurisdiction, there was an the expectation in the 1960s and early 1970s that the U.S. would join other liberal democracies and abolish the death penalty.
In 1972, the U.S. Supreme Court issued its decision in Furman v. Georgia,26 invalidating the death penalty in the United States under the Eighth and Fourteenth Amendments. But one can only understand Furman, and what occurred after 1972, by understanding how capital cases had been litigated for at least a hundred years previously. Prior to 1972, death was a possible punishment not just for murder, but for other felonies such as rape and kidnapping. The system was characterized by unitary jury trials. Juries decided both guilt and the penalty in a single proceeding, with very few guidelines governing the jury’s discretion as to who will live and who will die. The lack of standards had its roots in the common law’s jury nullification27 and even as late as 1971, the U.S. Supreme Court had rejected challenges to this system.28
Furman was a fractured decision, with a very simple lead per curiam opinion, followed by five concurring opinions and four dissenting opinions.29 However, the common theme of the majority of justices centered on the lack of standards and the seemingly unbridled discretion of jurors to impose death, even for less serious crimes. This discretion made the then-prevailing system either arbitrary30 or susceptible to being infected by racism (the opposite of arbitrary).31 These twin problems – arbitrariness and the risk of racism – led to the invalidation of unitary jury trials with no standards for determining who lived and who died. Because all states that had capital punishment in 1972 had such procedures, the effect of Furman was to invalidate all existing capital sentencing schemes in the United States.
Following Furman, 37 states adopted new death penalty statutes, seeking to revive capital punishment. Some states tried to address the problem of arbitrariness by making capital punishment mandatory for certain crimes. However, the Supreme Court invalidated those laws on the grounds that the Eighth Amendment requires individualized sentencing, including “consideration of the character and record of the individual offender and the circumstances of the particular offense.”32
In contrast, in Gregg v. Georgia,33 the Supreme Court upheld statutes (1) ostensibly retaining individualized sentencing, (2) limiting the discretion of prosecutors, judges, and juries by allowing death sentences for only a supposedly narrow category of crimes, and (3) “specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence.”34 The new statutes, approved by the Supreme Court, bifurcated trials between the “guilt” and “penalty” phases and often contained mandatory “proportionality” review provisions.35 These procedures, it was hoped, would provide the type of “guided discretion” that would eliminate arbitrariness in capital sentencing.
Whether Gregg ever actually made sense is not the issue. Rather, the decision must be viewed as a symbol of the shift to the right in American society. The Warren Court was becoming a distant memory. Gregg and the popularity of new death penalty schemes, even in “liberal” jurisdictions, should be seen in the same light as Ronald Reagan’s 1980 Philadelphia, Mississippi campaign speech, calling for “states’ rights,” just a few miles from the site of 1964 murders of civil rights activists Andrew Goodman, Mickey Schwerner and James Chaney. The transition of America to a true liberal democracy hit a brick wall. Right-wing reaction appeared to prevail, at least on this front.
From Gregg to the Present
Gregg’s claimed hope of a less arbitrary and non-racist death penalty, of course, never came to fruition. Poor state funding for capital defense,36 sleeping lawyers,37 racism during jury selection,38 a nd c orrupt j udges39 characterize the actual experience of capital trials in the generation since Gregg. Yet, despite multiple court decisions that routinely vacated death sentences for egregious procedural errors, prosecutorial misconduct, and ineffective assistance of counsel, the death penalty system expanded in the 1980s and 1990s, with the Clinton-sponsored Anti-Terrorism and Effective Death Penalty Act of 1996,40 designed to speed the pace of executions by stripping federal courts of their traditional habeas corpus powers.41 Rather than addressing issues about whether capital punishment was appropriate for modern society, the Supreme Court’s capital jurisprudence became very technical in trying to parse out which mechanisms were unconstitutionally arbitrary and which were not.42
It was also clear in the years after Gregg that the capital punishment system replicated the racism of American society. In Georgia, for instance, a far-reaching statistical study (the “Baldus Study”) concluded that defendants who killed white victims were 4.3 times more likely to be sentenced to death than those who killed black victims.43 Yet, in what can only be considered the nadir of the abolition movement, in a 5:4 decision, the U.S. Supreme Court rejected statistics as a method of proving race discrimination in capital cases.44
By the early 2000s, though, the tide began to turn. High-profile DNA exonerations and awareness of false confessions began to convince many that the risk of error in capital cases was too high.45 O n t hat basis, t he Republican Governor of Illinois cleared that state’s death row.46 The U.S. Supreme Court began excluding whole categories of defendants and cases from capital prosecutions,47 while the expansion of Sixth Amendment jurisprudence following Apprendi v. New Jersey48 restricted judicially-imposed death sentences.49 Some states’ governors adopted moratoria, while other states eliminated the death penalty legislatively.50
In 2015, when Connecticut repealed the death penalty but only applied the repeal prospectively, the Connecticut Supreme Court issued a decision striking down the death penalty retroactively, on state constitutional grounds.51 Around the same time, in Glossip v. Gross,52 a case involving lethal injection protocols, Justice Breyer called for “full briefing on a more basic question: whether the death penalty violates the Constitution.”53
State v. Gregory
It was in this environment, as the U.S. slowly began to return to the abolition trajectory it had lost in the 1970s, that Allen Gregory’s case came up on appeal to the Washington Supreme Court. Mr. Gregory was an African American man sentenced to death for a murder of one white woman in Tacoma, Washington, in 1996. He was only 24 years old at the time, with a very limited and non-violent criminal history. Arrested in 1998, he was convicted and sentenced to death in 2001, but the sentence was reversed in 2006 in part because of prosecutorial misconduct.54 There was a new penalty proceeding and, in 2012, a jury once again imposed a death sentence, which was again appealed to the Washington Supreme Court.
Since 1981, Washington State had mandatory proportionality review by which the state supreme court had to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”55 The tools to be used for proportionality review were the so-called “Trial Reports” – a series of standardized reports that the Washington Legislature required every judge sentencing someone for aggravated murder (whether a death case or not) to fill out at the conclusion of the case.56 Notably, the Washington Supreme Court never once vacated a death sentence based upon disproportionality, but every death appeal went through the ritual of trying to assess whether a particular death sentence was proportionate or not.
In 2006, in light of the life sentence given to Gary Ridgway (the so-called “Green River Killer”) who killed 48 people, four of the Washington’s nine justices believed that Washington’s system was broken and that no death sentence could ever be proportionate again.57 Then, in 2012, a different array of justices dissented in another death case; this time with Justice Charles Wiggins raising the issue of the statistical significance of a seeming race disparity and calling for expert statistical analysis to determine the effect of race on imposition of the death penalty.58
Following Justice Wiggins’ suggestion, Mr. Gregory’s defense lawyers59 retained the services of University of Washington Sociology Professor Katherine Beckett and (then) graduate student, Heather Evans (now Ph.D.) (“Beckett and Evans”) to subject Washington’s capital punishment system to statistical analysis. Relying on the same “Trial Reports” used to conduct proportionality review as their data set, Beckett and Evans subjected 33 years worth of aggravated murder cases to regression analyses. They controlled for a series of factors including the key case characteristics that one would think should be tied to the decision to impose death, such as number of victims, number of aggravating and mitigating factors, or the defendant’s criminal history. They also examined a series of factors that ought not be (legally) connected to the decision to impose death, such as the race of victim and the defendant.60
The Washington Supreme Court summarized Beckett’s and Evans’ results:
The Updated Beckett Report supported three main conclusions: (1) there is significant county-by-county variation in decisions to seek or impose the death penalty, and a portion of that variation is a function of the size of the black population but does not stem from differences in population density, political orientation, or fiscal capacity of the county, (2) case characteristics as documented in the trial reports explain a small portion of variance in decisions to seek or impose the death penalty, and (3) black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.61
This race difference – that black defendants were four and half times more likely to be sentenced to death than similarly situated white defendants, controlling for other variables (such as numbers of victims and criminal history) – is the key “take” from the Beckett and Evans study.
Beckett’s and Evans’ study did not find, as in some other jurisdictions, that in Washington the race of the victim had statistical significance. Rather, the issue was the race of the defendant. Moreover, the study did not find a race effect at the charging stage – at the time in a case when the prosecutors made the decision to seek death or not.62 Instead, the problem was when juries were imposing sentences at trial, the very status of being black was equivalent to additional aggravating factors or criminal history for white defendants, while white defendants facing capital sentencing had a greater chance of obtaining leniency (from mostly white juries) simply because of the color of their skin. In this way, Beckett’s and Evans’ study confirmed modern research about implicit bias and in-group favoritism.63
Using Beckett’s and Evans’ study, the defense challenged Mr. Gregory’s death sentence both as disproportionate under statutory proportionality review and as unconstitutional under article I, section 14 of the Washington Constitution (the ban on cruel punishment).64 In response, the State challenged whether the Supreme Court should even consider Beckett’s and Evans’ report. The court denied the State’s motion to strike the report, and by February 2016, when oral argument took place, the State had not submitted any expert critique of Beckett and Evans. However, at oral argument,65 the State acknowledged that it would like a chance to contest the defense report, and nearly two years of “special proceedings” before the commissioner of the Washington Supreme Court ensued.
The State hired an expert, Nicholas Scurich, of the University of California, Irvine, who filed a critique of Beckett’s and Evans’ study. Beckett and Evans responded by noting what they considered to be some basic technical mistakes made by Scurich in his critiques. The commissioner then submitted a series of written interrogatories to the parties, and additional statistical materials were filed. In November 2017, the commissioner issued a 97-page report to the Washington Supreme Court, summarizing the areas of agreement and disagreement of the experts and the overall strengths and weaknesses of the various reports. The parties (and amici) then submitted additional briefing.
On October 11, 2018, all nine justices agreed: the death penalty system in Washington State was unconstitutional under the Washington Constitution. Chief Justice Fairhurst explained:
Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times. And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied – sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.66
Notably, the court departed from its earlier decisions upholding the death penalty because of changes in the data (an additional 120 Trial Reports since its 2006 decision in State v. Cross, 156 Wn.2d 580, 132 P.3d 80 (2006)) and because:
Gregory commissioned a statistical study based on the information in the trial reports to demonstrate that the death penalty is imposed in an arbitrary and racially biased manner. . . . Where new, objective information is presented for our consideration, we must account for it. . . . Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance.67
Reflections and the Way Forward
How did the Washington Supreme Court evolve from Leschi v. Washington Terr.68 – where the court upheld the death sentence against the Native American resistance leader – to Gregory? Particularly when the Washington Supreme Court members are elected, not appointed, for six-year terms. Unless they plan to retire, the judges who issued Gregory will need to be re-elected.69 With the exception of one member,70 the court is not composed of former capital defense lawyers – some are former prosecutors.
The decision in Gregory was not driven by moral opposition to the death penalty, but rather by the issue of race discrimination and disproportionality, issues that the current membership of the court are very concerned about.71 The Gregory court made it clear that its decision was not based solely on Beckett’s and Evans’ study. Rather, the statistical evidence confirmed what was already known about the criminal justice system:
We need not go on a fishing expedition to find evidence external to Beckett’s study as a means of validating the results. Our case law and history of racial discrimination provide ample support.72
Following this language is a long string-cite of a series of cases involving racism in Washington courts (some of which resulted in losses to the defendants).73 In this regard, Gregory is testament to the concept that we as practitioners need always to keep raising issues of racism in our legal system, even if at times it seems like we are shouting into the wind. The work that we do here in fact has the potential to pay off – it may take years, but the efforts are not for naught.
Moreover, raising issues of discrimination resonates with judges, particularly those who are elected, because these are issues that the growing diverse population of the United States care about. Most people in our country are not classic White Anglo-Saxon Protestants, despite the countless stories in the national media about what some people in small towns in Missouri may think about the current affairs. We are a country of immigrants from Eastern and Southern Europe, from the Caribbean, Asia and Latin America, and a country of descendants of slaves. Whether our legal system can be fairly administered is an issue that most people actually do care about. Gregory is an example of how judges who care about discrimination can in fact respond to what is of concern to our diverse society.
Another lesson of Gregory seems self-evident. The path forward does not go through the federal court system. Although Justice Breyer’s dissent in Glossip in 2015 suggested that there might be a route available in the U.S. Supreme Court, that opportunity is clearly gone. The key is state constitutional litigation, in fora that are insulated from the U.S. Supreme Court’s interference. The late Arthur Kinoy, a stalwart of the NLG from the 1950s until his death in 2003, always talked about digging deep into the law, going back to the beginning to find that kernel that would lead to victory.74 We must look critically at our state constitutions75 as an antidote to the right-wing reaction that will remain within us federally for the next generation. As noted above, the Washington Supreme Court led off its opinion in Gregory by citing its own history in striking down the death penalty in the past: “Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times.”76 It is important to keep this local history in mind when challenging any jurisdiction’s capital punishment scheme.
For the NLG, the lesson is that the struggle against the death penalty is deeply aligned with our core missions, to fight for human rights over property interests. Prison abolition and abolition of capital punishment are linked – both in terms of how prisons and capital punishment develop as tools of social control and in terms of how both reflect the pathology of race in the America. Expanding our own skill sets and becoming more active in capital litigation, we can build coalitions with others already engaged in capital defense work.
There is much more to do. As the right-wing furthers its grip over the federal judiciary, the pace of executions will quicken, and our skills and political analysis will be in demand more and more in coming years. Hopefully, Gregory offers an example of how to move forward in what appears to be a bleak period nationally.
1 Hugo Bachega, Belarus: The secret executions in Europe’s ‘last dictatorship’, BBC News (May 15, 2018), available online at https://www.bbc.com/news/world-europe-43799280.
2 As for race bias, see State v. Santiago, 318 Conn. 1, 156, 122 A.3d 1, 93-94, rehearing denied 319 Conn. 912, 124 A.3d 496 (2015) (Norcott, J., concurring) (“All of the meta-analyses, and all of the major, multijurisdictional primary studies, have concluded, after subjecting evidence of racial disparities to advanced multivariate statistical analysis, that offenders who murder non-Hispanic white victims are more likely to be charged with a capital offense and/or sentenced to death than those who victimize members of racial minorities.”) (footnote omitted). As for arbitrariness, see Glossip v. Gross, 135 S. Ct. 2726, 2759-62, 192 L. Ed. 2d 761 (2015) (Breyer, J., dissenting) (surveying research that shows how race, gender, local geography, political pressure, available resources “strongly suggests that the death penalty is imposed arbitrarily”).
3 Office of the California Governor, Governor Gavin Newsom Orders a Halt to the Death Penalty in California (2019), available online at https://www.gov.ca.gov/2019/03/13/ governor-gavin-newsom-orders-a-halt-to-the-death-penalty-in-california/.
4 Until 1996, the preferred method of execution was “hanging by the neck.” Washington Laws of 1981, ch. 138, sec. 18. In 1996, the primary method became intravenous injection, but the prisoner could choose to be hung. Washington Laws of 1996, ch. 251, sec. 1.
5 State v. Gregory, 427 P.3d 621 (Wash. 2018).
6 See, e.g., The Movement for Black Lives, End The War On Black People, available online at https://policy.m4bl.org/end-war-on-black-people/ (calling for end to capital punishment).
7 In 2015, the NLG adopted a “Resolution Supporting the Abolition of Prisons.” National Lawyers Guild, Resolutions (2015), available online at https://www.nlg.org/wp-content/ uploads/2016/03/Resolution-Supporting-the-Abolition-of-Prisons-REV.pdf (hereinafter Resolution).
8 Since I was the Northwest Regional Vice President of the NLG during the relevant time period, this is a self-criticism.
9 See Pope Francis, New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty, Rescriptum Ex Audientia Ss.Mi (May 11, 2018), available online at http://www.vatican.va/roman_curia/congregations/cfaith/documents/ rc_con_cfaith_doc_20180801_catechismo-penadimorte_en.html (“Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide.”) (footnote omitted).
10 See Resolution, supra note 8.
11 See Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay, Peter Linebaugh, John G Rule, E.P. Thompson and Cal Winslow, Albion’s Fatal Tree: Crime And Society InEighteenth-Century England, 17-63 (1975) (addressing how the ideology of law in 18th Century England – with the key concepts of “majesty,” “ justice” and “mercy” – kept the ruling class in power). Regarding the American experience, see Louis P. Masur, Rites OfExecution: Capital Punishment And The TransformationOfAmericanCulture, 1776-1865 (1989).
12 Leschi v. Washington Terr., 1 Wash. Terr. 13, 14 (1857). In contrast, the U.S. never actually tried, let alone hang, Jefferson Davis for his treasonous pro-slavery rebellion.
13 Spies v. People, 12 N.E. 865 (1887).
14 Commonwealth v. Sacco, 151 N.E. 839 (1926).
15 United States v. Rosenberg, 200 F.2d 666 (2d Cir. 1952).
16 Abu-Jamal v. Sec’y, Pa. Dep’t of Corr., 643 F.3d 370 (3rd Cir. 2011); see also Ed Pilkington ‘Intoxicating freedom, gripping fear’: Mumia Abu- Jamal on life as a Black Panther, The Guardian (July 30, 2018), available onl ine at h t t p s: // w w w.t h e g u a r d i a n . c o m / u s – n e w s / 2 018 / j u l / 3 0 / intoxicating-freedom-gripping-fear-mumia-abu-jamal-on-life-as-a-black-panther.
17 See Danny Lewis, This Map Shows Over a Century of Documented Lynchings in the United States Mapping the History of Racial Terror, Smithsonian Magazine (January 24, 2017), available online at https://www.smithsonianmag.com/smart-news/map-shows-over-a-century-of-documented-lynchings-in-united-states-180961877/. The effect of lynching on the American legal system is pervasive, even extending to the one-sided requirement that a state prisoner obtain a “certificate of appealability” before being able to appeal the denial of a federal habeas writ to the Circuit Court of Appeals. Congress adopted this requirement in 1908 with the specific purpose of speeding up executions to prevent “local dissatisfaction, not infrequently developing into lynching.” United States ex rel. Tillery v. Cavell, 294 F.2d 12, 15 (3rd Cir. 1961) (quoting H.R. Rep. No. 23, 60th Cong., 1st SESS. (1908)). In other words, a “normal” modern procedural requirement for litigating a petition under 28 U.S.C. § 2254 has its origins in a desire to appease Southern lynch mobs.
18 Ironically, the lyrics of Billie Holiday’s famous song “Strange Fruit,” describing “black bodies swinging in the southern breeze,” were written by Abel Meeropol, who adopted and raised the orphans of Julius and Ethel Rosenberg.
19 See Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror (3rd Edition), available online at https://lynchinginamerica.eji.org/report/ (stating “Public spectacle lynchings were those in which large crowds of white people, often numbering in the thousands, gathered to witness pre-planned, heinous killings that featured prolonged torture, mutilation, dismemberment, and/or burning of the victim. Many were carnival-like events, with vendors selling food, printers producing postcards featuring photographs of the lynching and corpse, and the victim’s body parts collected as souvenirs.”) (footnote omitted). Many white Southerners currently in positions of political and judicial power in the United States must have immediate relatives who were gleeful participants in these macabre executions, and may also still have possession of these gruesome souvenirs. Where one side to any modern conversation about race and the death penalty has such collective consciousness (a grandparent, for instance, who laughed at a suffering black torture victim) the result of the conversation will necessarily be toxic until such time as the white power structure’s legacy is openly discredited.
20 William D. Carrigan and Clive Webb, When Americans Lynched Mexicans, New York Times (February 20, 2015, available online at https://www.nytimes.com/2015/02/20/ opinion/when-americans-lynched-mexicans.html); Simon Romero, Lynch Mobs Killed Latinos Across the West. The Fight to Remember These Atrocities is Just Starting,” New York Times (March 2, 2019), available online at https://www.nytimes.com/2019/03/02/ us/porvenir-massacre-texas-mexicans.html.
21 In this way, the end of the essentially medieval system of public executions that lynching exemplified was a sign of the modernization of American society, tracking the shift to private executions in a prison setting that began a century and a half earlier. See Masur, supra, note 12.
22 Michel Foucault, Discipline And Punish: The Birth OfThe Prison(1975).
23 England, for instance, essentially abolished the death penalty in 1965. Murder (Abolition of Death Penalty) Act 1965, 1965 ch. 71.
24 In 1960, for instance, California’s execution of prisoner/author Caryl Chessman (overseen by Governor Pat Brown) crystalized national and international attention on the death penalty in the U.S. See Anthony Lewis, He Was Their Last Resort, New York Times (August 20, 1989), available online at https://www.nytimes.com/1989/08/20/ books/he-was-their-last-resort.html.
25 See Witherspoon v. Illinois, 391 U.S. 510 (1968).
26 Furman v. Georgia, 408 U.S. 238 (1972).
27 See Apprendi v. New Jersey, 530 U.S. 466, 479, 479 n. 5 (2000) (discussing common law power of juries to avoid a jury verdict where the punishment was seen as too severe).
28 See McGautha v. California, 402 U.S. 183 (1971).
29 The dissenters were all recent Nixon appointees to the court, demonstrating the significance of the election of 1968, an election where many on the Left abandoned (for good reason) the Cold War liberal, Hubert Humphrey, with dire long-term consequences.
30 See Furman, supra note 27 at 309-10 (Stewart, J., concurring) (“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”).
31 See ibid. at 255 (Douglas, J., concurring) (“Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”).
32 Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
33 428 U.S. 153 (1976).
34 Ibid. at 180.
35 Ibid. at 189-95.
36 Until 1999, Alabama paid capital lawyers $40 an hour for work in court, $20 an hour for work out of court, with a cap of $1000 for out-of-court work. Equal Justice Initiative, The Crisis of Counsel in Alabama, available online at https://eji.org/ alabama-inadequate-counsel-death-penalty-cases.
37 See Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (counsel dozed throughout capital trial).
38 See Foster v. Chatman, 136 S. Ct. 1737, 1755 (2016) (“[T]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”).
39 See Bracy v. Gramley, 520 U.S. 899, 909 (1997) (noting that a judge in capital case “was shown to be thoroughly steeped in corruption”).
40 Pub. L. No. 104-132, 110 Stat. 1214.
41 President Clinton used his support for the death penalty as a way of attracting centrist voters, cynically signing a death warrant for a mentally ill black man during the middle of the 1992 primary campaign. See Nathan Robinson, The Death of Ricky Ray Rector,” Jacobin Magazine (November 2016), available online at https://www.jacobinmag. com/2016/11/bill-clinton-rickey-rector-death-penalty-execution-crime-racism/.
42 This jurisprudence led to Justice Blackmun’s famous words in Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from the denial of certiorari) (“From this day forward, I no longer shall tinker with the machinery of death. . . . The basic question – does the system accurately and consistently determine which defendants ‘deserve’ to die? – cannot be answered in the affirmative.”).
43 Thus, white life was valued more than black life.
44 McCleskey v. Kemp, 481 U.S. 279 (1987).
45 See, e.g., United States v. Burns, 1 S.C.R. 283, 2001 SCC 7 (2001) (Supreme Court of Canada bars extradition to the United States for someone accused of a capital offense because of risk of error and the dangers of executing innocent people).
46 See Jodi Wilgoren, Citing Issue of Fairness, Governor Clears Out Death Row in Illinois,” New York Times (January 12, 2003), available online at https://www.nytimes. com/2003/01/12/us/citing-issue-of-fairness-governor-clears-out-death-row-in-illinois. html. A moderate Republican who ended up soon going to prison for corruption, Governor Ryan’s courage should be compared to Washington’s liberal Democratic Governor, Mike Lowry – once a friend to the Sandinistas in Nicaragua – who in 1994 oversaw the first execution of a non-“volunteer” since 1963. See Peter Lewis, Dee Norton, Jim Simon, Jack Broom, Lowry Meets With Campbell, Refuses To Stop Execution – Supreme Court Also Declines To Intervene, Seattle Times (May 26, 1994), available online at http://community.seattletimes.nwsource.com/archive/?date=19940 526&slug=1912492).
47 See Kennedy v. Louisiana, 554 U.S. 407 (2008) (excluding child rapists); Roper v. Simmons, 543 U.S. 551 (2005) (excluding juveniles); Atkins v. Virginia, 536 U.S. 304 (2002) (excluding those with a certain level of intellectual disabilities).
48 530 U. S. 466 (2000).
49 See Hurst v. Florida, 136 S. Ct. 616 (2016); Ring v. Arizona, 536 U.S. 584 (2002).
50 See Death Penalty Information Center, States Without the Death Penalty (Updated Mar. 13, 2019), available online at http://www.deathpenaltyinfo.org/ states-and-without-death-penalty.
51 State v. Santiago, 122 A.3d 1, rehearing denied, 124 A.3d 496 (2015).
52 135 S. Ct. 2726 (2015)
53 Ibid. at 2755 (Breyer, J., dissenting).
54 State v. Gregory, 147 P.3d 1201 (2006).
55 Wash. Rev. Code § 10.95.130(2)(b).
56 Wash. Rev. Code § 10.95.120.
57 State v. Cross, 156 Wn.2d 580, 641, 132 P.3d 80 (2006) (Johnson, J., dissenting) (“When Gary Ridgway, the worst mass murderer in this state’s history, escapes the death penalty, serious flaws become apparent.”).
58 State v. Davis, 175 Wn.2d 287, 389, 290 P.3d 43 (2012) (Wiggins, J., dissenting) (“A review of the reports of prosecutions for aggravated first degree murder quickly discloses that African-American defendants are more likely to receive the death penalty than Caucasian defendants. . . . I would either reverse the death penalty . . . or remand to superior court to take evidence on the statistical significance of the disproportionate number of African-Americans sentenced to death.”).
59 Lila Silverstein and the current author.
60 Katherine Beckett & Katherine Evans, The Role of Race in Washington State Capital Sentencing, 1981-2014 (October 2014). All of the key documents connected to Gregory including the different statistical studies can all be found on the website of the Washington Supreme Court, available online at http://www.courts.wa.gov/appellate_trial_courts/SupremeCourt/?fa=supremecourt.StatevGregory.
61 Gregory, supra note 6 at 630 (emphasis added).
62 Because the study used the aggravated murder “Trial Reports” as the data set, the study did not look at race and prosecutorial discretion even to charge aggravated murder as opposed to first degree murder.
63 The amicus brief of Seattle University’s Fred Koramatsu Center for Law and Equality set out in some detail the issues of implicit bias and in-group favoritism, available online at https://www.courts.wa.gov/content/publicUpload/State%20v.%20Gregory/880867Am icusFredTKorematsuCenter.pdf. (There was other significant amicus support including briefs by the ACLU (joined ultimately by 75 retired judges), briefs by the Washington Coalition to Abolish the Death Penalty, and a brief by a group of social scientists with expertise in statistics and the death penalty.)
64 The sentence was also challenged under the Eighth Amendment, as well as a series of other issues many of which were specific to the case.
65 Defense counsel ceded some of their oral argument time to Jeffrey Robinson, the director of the ACLU Trone Center for Justice and Equality. In poignant remarks, Mr. Robinson reminded the justices of how the death penalty was linked to the 100-year history of lynching in the South. See Washington Supreme Court, Oral Arguments, available online at https://www.tvw.org/watch/?eventID=2016021270 (from 51:45 to 52:35).
66 Gregory, supra note 6 at 626-27 (internal citations and footnotes omitted).
67 Ibid. at 632-33, 635 (emphasis in original). Four justices signed a concurring opinion focusing not just on race, but also on overall concerns about arbitrariness, rather than just race. Id. at 642 (Johnson, J., concurring) (“Based on a current review of the administration and processing of capital cases in this state, what is proved is obvious. A death sentence has become more randomly and arbitrarily sought and imposed, and fraught with uncertainty and unreliability, and it fails state constitutional examination.”).
68 1 Wash. Terr. 13 (1857)
69 When thinking about elected judges striking down the death penalty, one must inevitably remember recall campaign against Chief Justice Rose Bird of the California Supreme Court, whose opposition to the death penalty led to her removal from the court in 1986. See Robert Lindsey, Deukmejian and Cranston Win as 3 Judges are Ousted, New York Times (November 6, 1986), available online at https://www.nytimes.com/1986/11/06/ us/elections-story-some-key-states-deukmejian-cranston-win-3-judges-are-ousted. html.
70 Before she joined the Washington Supreme Court, the Hon. Sheryl Gordon McCloud was a well-known defense lawyer with deep experience as a capital litigator. See, e.g., In re Pers. Restraint of Stenson, 276 P.3d 286 (2012); Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999).