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Washington State’s death penalty ruled racially biased, unconstitutional


What you’ll read today

  • Spotlight: Washington State’s death penalty ruled racially biased, unconstitutional

  • Prisons crack down on an opioid treatment, endangering lives

  • The Appeal Podcast Episode 18: How activists brought down the most powerful man in Chicago

  • Ohio voters have a chance to ‘deal a blow’ to mass incarceration this November

  • Massachusetts court throws out thousands of convictions tainted by corrupt lab chemist

  • New Alabama report recommends eliminating court fines and fees

  • Kansas detective accused of coercing poor women into sex and giving false evidence

In the Spotlight

Washington State’s death penalty ruled racially biased, unconstitutional

Yesterday, the Washington Supreme Court ruled that capital punishment, as applied in Washington, violates the state Constitution. It held that the death penalty has been imposed in an unlawfully “arbitrary and racially biased manner” and “fails to serve any legitimate penological goals.” The court converted all death sentences to life imprisonment. The ruling was unanimous and, because it is based on the state Constitution, it cannot be reversed by the U.S. Supreme Court. [Mark Joseph Stern / Slate]

Washington’s Constitution bars “cruel punishment,” a provision that has been interpreted as more expansive than the Eighth Amendment to the U.S. Constitution. Even so, in 2012, the court upheld the death penalty, noting it had seen “no evidence that racial discrimination pervades the imposition of capital punishment in Washington.” This led a death row prisoner’s attorneys to commission a study by Katherine Beckett, an expert on race and criminal sentencing. Beckett’s study analyzed the imposition of capital punishment in the state from 1981 to 2014 and found that Black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants. Further, prosecutors are more likely to seek the death penalty in counties with larger Black populations. “Most prosecutors in the state have stopped seeking the death penalty, so all current capital sentences arise from just six of Washington’s 39 counties,” writes Mark Joseph Stern for Slate. “The location of your crime may therefore determine whether you live or die. This ‘random’ and ‘capricious’ application of the ultimate punishment, the court ruled, fatally undermines any state interest [in] ‘retribution and deterrence of capital crimes by prospective offenders.’” [Mark Joseph Stern / Slate]

This ruling has called to mind the 1972 U.S. Supreme Court case Furman v. Georgia, which found that the death penalty, as applied, violated the Eighth Amendment. The principal concern of the Court was that the death penalty was being administered arbitrarily. The case put a temporary moratorium on the death penalty. Various states then responded to the ruling by tailoring their laws to satisfy the concerns expressed by the Court, by instituting discretionary devices to help guide juries or by eliminating discretion and imposing mandatory death sentences for certain crimes. (The Court later ruled that the mandatory sentencing system did not sufficiently address the Furman concerns.) Four years later, in Gregg v. Georgia, the Court upheld death sentences, finding that “the punishment of death does not invariably violate the Constitution.” The moratorium was over. [Dawinder S. Sidhu / West Virginia Law Review]

The Washington decision seemed to many like a second chance at McCleskey v. Kemp, a decision that has been called the “Dred Scott decision of our time.” In McCleskey, the Supreme Court refused to hear statistical evidence of race discrimination in the application of the death penalty and, as a result, severely restricted the ability for minority plaintiffs to succeed on equal protection claims. In 1987, the Supreme Court ruled that the Constitution did not allow defendants to challenge a death sentence by showing solid statistical evidence that the system as a whole is biased: “[T]o prevail under the Equal Protection Clause, [a defendant] must prove the decisionmakers in his case acted with discriminatory purpose.” The ruling in McCleskey created a bar that was “impossible to meet,” according to a death-row litigator in Durham, North Carolina. “No one since … has succeeded in a claim of race discrimination,” the lawyer said. In his dissenting opinion, Justice William J. Brennan Jr. characterized the majority’s reluctance to consider the evidence of discrimination as “a fear of too much justice.” Justice Lewis F. Powell Jr., who wrote the majority opinion in the 5-4 decision, was asked by his biographer if there was a vote he would change if he could. His response: “McCleskey v. Kemp.” [Adam Liptak / New York Times]

The Court also rejected the argument that Warren McCleskey’s sentence was cruel and unusual punishment because there is a “constitutionally permissible range of discretion.” Even though sentencing discretion must be limited “so as to minimize the risk of wholly arbitrary and capricious action,” juries must be afforded some discretion, based on the circumstances of the crime and the defendant. The disparities in sentencing shown by the studies, Justice Powell argued, were an “inevitable” cost of jury discretion. “Implicit in this holding is the view that maintaining jury discretion is a more important value than eliminating race discrimination in capital sentencing,” writes professor Phyllis Goldfarb. [Phyllis Goldfarb / New York University Review of Law & Social Change]

In a recent law review paper, professor Reva Siegel commemorated the 30th anniversary of McCleskey, presenting historical evidence showing that the decision “was responsive to conservative claims of the era about race, rights, and courts.” But Siegel points out that a close reading of the decision has prompted some courts to limit the McCleskey restrictions to the particular concerns of that case, which could open the door to admitting statistical evidence of bias in other situations. She concludes, “Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.” [Reva Siegel / Northwestern Law Review] In the Washington State case, however, it seems that judges were enough.

Stories From The Appeal

Photo illustration by Anagraph / Photo by Scott Olson/Getty Images

The Appeal Podcast Episode 18: How Activists Brought Down the Most Powerful Man in Chicago. Two pieces of news have rocked Chicago: Mayor Rahm Emanuel’s announcement that he will not seek a third term and the conviction of a white police officer, Jason Van Dyke, for the killing of a black teenager, Laquan McDonald. Writer Kelly Hayes talks about the lessons Chicago holds for activists throughout the country. [Adam H. Johnson]

Prison Crack Down on an Opioid Treatment, Endangering Lives. Few of the prisons trying to stem the flow of contraband Suboxone offer substantial opioid treatment programs. [Raven Rakia]

Stories From Around the Country

Ohio voters have a chance to ‘deal a blow’ to mass incarceration in November: Next month, Ohio residents will vote on Issue 1, a ballot initiative that could “deal a blow to the war on drugs and mass incarceration,” according to German Lopez of Vox. It would “reduce drug possession offenses to misdemeanors, so they are no longer classified as felonies with harsher penalties” and would “then use the money saved (because the state wouldn’t lock up as many people) on addiction treatment and crime victim funds.” It would also allow most prisoners, except for those convicted of murder, rape, or child molestation, to “reduce their prison sentences by participating in prison rehabilitation programs.” Ohio Issue 1, which has received funding from the Chan Zuckerberg Initiative, the Open Society Policy Center, and the Open Philanthropy Project, is a constitutional amendment and would take precedence over standard legislation. [German Lopez / Vox]

Massachusetts court throws out thousands of convictions tainted by corrupt lab chemist: The highest court in Massachusetts vacated thousands of drug convictions based on drug tests tainted by the misconduct of a rogue state chemist and two former prosecutors. (The prosecutors now work at other state agencies.) The court ordered the dismissal of every case involving methamphetamine during the nine years that former state chemist Sonja Farak worked at the Amherst lab, and every case analyzed at the lab from 2009 until Farak’s arrest in January 2013. Farak pleaded guilty in 2014 to tampering with evidence and received a sentence of 18 months’ incarceration. In April, Massachusetts prosecutors agreed to dismiss all cases Farak had analyzed herself, about 11,000, saying it was unnecessary to vacate any more. But yesterday’s court ruling does just that. Between Farak and another former state chemist who tampered with drug samples, prosecutors have thrown out nearly 40,000 drug convictions. Most of those affected have already served their sentences but face the collateral consequences of a drug conviction. [Shawn Musgrave and John R. Ellement / Boston Globe]

New Alabama report recommends eliminating court fines and fees: A new report on the impact of Alabama court fines and fees says a “disjointed court system and counterproductive punitive measures contribute to an ‘escalating cycle’ disproportionately pressuring poor and black Alabamians while creating more public safety risks,” according to the Montgomery Advertiser. Published by advocacy group Alabama Appleseed and others, “the report found that a statewide aversion to raising revenue through taxes or other mechanisms has placed undue pressure on court systems to collect their own revenues.” And “poverty penalties” impose escalating fines for those who cannot afford the original court fine. “As a practical matter, Alabama should not fund its state government on the backs of poor people,” the report states. “As a matter of conscience, we should not tolerate a system that forces people to choose between paying for basic necessities like food and medicine, and paying their court debt.” Half of the nearly 1,000 Alabamians surveyed had served jail time for failure to pay court debt. [Melissa Brown / Montgomery Advertiser]

Kansas detective accused of coercing poor women into sex and into giving false evidence: “A man deemed wrongfully convicted for a double murder in Kansas City, Kansas, more than two decades ago has filed a lawsuit against the city and police for alleged sexual coercion and fabricated statements that led to his arrest,” according to the Kansas City Star. “For decades, the Kansas City Police Department permitted Detective Roger Golubski to terrorize an entire community—by using his badge to extort sexual favors from poor black women and by coercing and manipulating those women into providing fabricated evidence to close his cases,” the lawsuit said. A spokesperson for the police department said that police were reviewing the lawsuit and would issue a statement this week. [Kaitlyn Schwers / Kansas City Star]

Thanks for reading. Have a great weekend.

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