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No. 88086-7 Supreme Court of the State of Washington NO. 88086-7 SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent, v. ALLEN EUGENE GREGORY, Appellant. ON APPEAL FROM THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR PIERCE COUNTY BRIEF OF AMICI CURIAE, 56 FORMER AND RETIRED WASHINGTON STATE JUDGES, A FORMER U.S. ATTORNEY, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION-WASHINGTON, CHURCH COUNCIL OF GREATER SEATTLE, CATHOLIC MOBILIZING NETWORK, FAITH ACTION NETWORK, FRIENDS COMMITTEE ON WASHINGTON PUBLIC POLICY, LEAGUE OF WOMEN VOTERS OF WASHINGTON, MURDER VICTIMS FAMILIES FOR RECONCILIATION, TWO LAW SCHOOL PROFESSORS, WASHINGTON ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, AND WASHINGTON DEFENDER ASSOCIATION. AMERICAN CIVIL LIBERTIES AMERICAN CIVIL LIBERTIES UNION FOUNDATION UNION OF WASHINGTON Jeffery Robinson (WSBA No. ORRICK, HERRINGTON & 11950) SUTCLIFFE LLP 125 Broad St. John Wolfe (WSBA No. 8028) New York, NY 10004 Aravind Swaminathan (WSBA No. Tel: (212) 284-7342 33883) David Keenan (WSBA No. 41359) Cassandra Stubbs (N.Y. No. Marc Shapiro (N.Y. No. 4403606) 4191409) 701 Fifth Ave. Suite 5600 201 W. Main St. Suite 402 Seattle, WA 98104 Durham, NC 27701 Tel: (206) 839-4300 Tel: (919) 688-4605 (Additional Counsel on Inside Cover) Nancy Talner (WSBA No. 11196) 901 Fifth Ave., Suite 630 Seattle, WA 98164 Tel: (206) 624-2184 Attorneys for Amici Curiae TABLE OF CONTENTS Page INTRODUCTION ..................................................................................... 1 I. IDENTITY AND INTEREST OF AMICI .................................... 3 II. STATEMENT OF THE CASE...................................................... 3 III. WASHINGTON’S DEATH-SENTENCING SCHEME IS UNCONSTITUTIONALLY ARBITRARY, RACIALLY DISCRIMINATORY, UNRELIABLE, AND PENOLOGICALLY INEFFECTIVE............................................ 4 A. Washington’s Limited Remaining Use of the Death Penalty Is Inherently Arbitrary. ......................................... 5 1. Roots of arbitrariness: geography and budgets. .................................................................. 8 2. Proportionality review has failed to correct the problem. ......................................................... 12 B. Washington’s Limited Remaining Use of the Death Penalty Is Inherently and Impermissibly Racially Discriminatory. ................................................................ 14 C. The Death Penalty Is Cruel Because It Is Wholly Unreliable......................................................................... 19 D. No Valid Penological Objectives Justify Continuing This Fatally-Flawed System. ........................................... 23 IV. THE DEATH PENALTY CANNOT BE RECONCILED WITH EVOLVING STANDARDS OF DECENCY. ................. 25 A. With Juries Increasingly Refusing to Impose Sentences of Death and a Moratorium on Executions, Capital Punishment Is at a Standstill in Washington. ..................................................................... 27 B. Washington’s Disuse of the Death Penalty Is Consistent with the National Trend. ................................ 31 V. CONCLUSION............................................................................ 34 i TABLE OF AUTHORITIES Page(s) Federal Cases Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ................................................................................................23, 31 Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) ............24, 25, 28 Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) ................................................................................................20, 21 Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) ......................................... passim Glossip v. Gross, 135 S. Ct. 2726, 192 L. Ed. 2d 761 .......................................19, 24, 31, 32 Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) ..........................7 Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) .............................................................................................. passim Hall v. Florida, ___U.S. ___, 134 S. Ct. 1986, 1997, 188 L. Ed. 2d 1007 (2014) ......................................................................................................32 Harris v. Blodgett, 853 F. Supp. 1239 (W.D. Wash. 1994) ...................................................21 Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) ......................................................................................................23 ii Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) ........................28 Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) ..........................31 Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) ................................26 United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002).....................................................20 Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) ..........................28 Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) ..........................18 State Cases Connecticut v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015)..........................................................8, 19 Dist. Attorney for Suffolk Dist. v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980) ............................................7, 19 State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984) .....................................................4, 26 State v. Cross, 156 Wn.2d 580, 132 P.3d 80 (2006) .....................................5, 6, 7, 13, 14 State v. Davis, 175 Wn.2d 287, 290 P.3d 43 (2012) ............................................... passim State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980) .......................................................26 State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995) ...............................................4, 26 State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996) .......................................................4 iii State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000) .......................................................24 State v. Saintcalle, 178 Wn.2d 34, 309 P.3d 326 (2013) ...........................................15, 16, 18 State Statutes RCW 10.95.130(2)(b) ................................................................................13 Constitutional Provisions U.S. Const. amend VIII..........................................................................1, 24 Washington Constitution ................................................................... passim Wa. Const. art. I § 14 .............................................................................3, 26 Other Authorities Andrew Prazuch, KCBA Calls for End to Death Penalty..........................30 Brief of the Washington State Bar Association as Amicus Curiae, In re Stenson (2008) (No. 82332-4)............................................30 Chris Bristol, Death Penalty: The cost is high, Yakima Herald-Republic, Mar. 19, 2011..............................................................11 Columbia Law School, Professor James Liebman Proves Innocent Man Executed, Retired Supreme Court Justice Says, Jan. 26, 2015 ..................................................................................23 Death Penalty Information Center, Executions by Year Since 1976 ...............................................................................................19 Death Penalty Information Center, Death Sentences in the United States From 1977 By State and By Year.....................................33 Death Penalty Information Center, Information on Defendants Who Were Executed Since 1976 and Designated as Volunteers ........................................................................32 iv Death Penalty Information Center, Searchable Execution Database ............................................................................................32, 33 Death Penalty Information Center, State by State Database ..................................................................................................32 Death Penalty Information Center, States With and Without the Death Penalty ......................................................................32 Death Penalty Information Center, The Innocence List ............................19 Editorial, County Should Not Seek The Death Penality Again, Seattle Times, July 30, 2015................................................ 6-7, 11 Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Aug. 2010) .................................18 Federal Bureau of Investigation, Crime Statistics: State- by-state homicide statistics......................................................................27 Gov. J. Inslee Announces Capital Punishment Moratorium (Feb. 11, 2014)....................................................................29 Governor Inslee’s Remarks Announcing a Capital Punishment Moratorium (Feb. 11, 2014) ......................................9, 25, 29 Innocence Project, DNA Exoneration Cases by State ...............................22 James Liebman, The Wrong Carlos: Anatomy of a Wrongful Execution (Columbia University Press 2014 ed.)...........................................................................................................20 Joel Moreno, Court Costs in Carnation
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