On Oct. 11, the Washington State Supreme Court unanimously struck down the death penalty as unconstitutional, the “death penalty is invalid because it is imposed in an arbitrary and racially biased matter” and "it fails to serve any legitimate penological goal.” The death penalty is a punishment that is as flawed as it is final, and as the Washington high court acknowledges, one plagued by racial bias and arbitrariness.
The ruling came in response to an appeal in Allen Gregory’s case. Gregory argued that the entire death penalty scheme in Washington was unconstitutionally discriminatory, relying in large part on a rigorous and sophisticated by researchers at the University of Washington. The study ultimately showed that Washington juries were more than four times as likely to sentence a Black defendant to death as a non-Black defendant.
Gregory’s case led a broad group of advocates, researchers, and criminal justice attorneys to file amicus briefs arguing Washington’s death penalty scheme was a demonstrated failure, infected by racial bias and arbitrariness. Seventy-five retired or former judges in Washington state joined the asking the Washington court to strike the death penalty. They did so because they had the grim benefit of front row seats to its unjust application.
Thursday's decision is a step toward racial justice, but nationwide the racism inherent in the procession and decisions in capital cases still too often unaddressed. In fact, the Washington Supreme Court joins just a small number of state courts, including Massachusetts and Connecticut, that have struck down the death penalty after recognizing the intolerable taint of racial discrimination.
Racial bias is the intractable legacy of the death penalty’s history in America. Capital punishment can never free itself of the yoke of its roots in . As the viscerally demonstrates, many of the same southern and midwestern counties that tolerated and even encouraged lynchings of Black men were enthusiastic proponents of capital punishment.
But the legacy of racial violence extends beyond just any county or state border: Racial bias permeates capital punishment at every stage from the decision to charge the death penalty to execution. One acute pinch point of that discrimination is in jury selection.
Prosecutors across the country routinely discriminate against potential Black jurors in capital cases by striking them from serving. In 2016, the U.S. Supreme Court ruled for after handwritten notes from the prosecution surfaced showing its relentless efforts to strike Black jurors from his capital case. This included the prosecutor’s notes designating each with a “B” and noting the lone juror they would accept if they “had to pick a Black juror.”
This kind of discrimination in juror selection is far from limited to Foster’s case. In studies ranging from up to and back down to , we see clear systematic discrimination against qualified Black jurors in capital cases. In North Carolina, prosecutors were trained statewide, with a handy top-10-style cheat sheet, in how to give pre-textual explanations to avoid being caught for racial discrimination.
Decisions about who should live and who should die are too often driven by the race of the defendant or race of the victim, as studies for have repeatedly shown. But, as the Washington Supreme Court found, the death penalty’s problems go far beyond racial bias. It is a flawed and ineffective tool of justice, one has become itself a tool of injustice. Capital punishment does not deter crime, and it fails to protect the innocent from wrongful convictions.
These concerns have caused the public to turn from the death penalty, with support for capital punishment at a . Likewise, death penalty jury verdicts and executions . Today, Washington became the 20th state to officially reject capital punishment. Three other states have governor moratoriums, and another have not had an execution in the last decade.
The problems with the death penalty cannot be fixed. It is time for other courts to follow Washington’s lead and strike the unconstitutional, unjust, and racially discriminatory punishment from the books once and for all.
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PodcastDec 2024
Capital Punishment
Can Commuting the Row Be Biden's Real Legacy? Herman Lindsey and Cassy Stubbs Discuss With W. Kamau BellCan Commuting the Row Be Biden's Real Legacy? Herman Lindsey and Cassy Stubbs Discuss With W. Kamau Bell
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Press ReleaseDec 2024
Capital Punishment
Over 130 Civil and Human Rights Organizations Call on President Biden to Commute Federal Death SentencesOver 130 Civil and Human Rights Organizations Call on President Biden to Commute Federal Death Sentences
WASHINGTON – More than 130 civil and human rights organizations, led by the American Civil Liberties Union, Amnesty International USA, Southern Poverty Law Center, and the NAACP Legal Defense Fund, issued a letter to President Biden today, urging him to commute the sentences of people on federal death row before he leaves office. The letter highlights the moral and legal failings of the death penalty in the United States and stresses the urgency of action to prevent the potential resurgence of federal executions under an incoming Trump administration. The groups call on Biden to fulfill his campaign promise to address the irrevocably broken federal death penalty and to “bring America into a new era of moral leadership.” President Biden was the first presidential candidate to openly oppose the death penalty, and his administration issued a moratorium on federal executions. With 40 men still on death row, however, the letter emphasizes that commuting federal death sentences is the only irreversible action President Biden can take to prevent the incoming administration from attempting another execution spree. "President Biden has an opportunity to make history by addressing the racist and unjust federal death penalty system and keep an early campaign promise he made to the American people,” said Anthony D. Romero, executive director of the ACLU. “Commuting the sentences of those on death row would help end the death penalty once and for all and prevent a second execution spree by President Trump. Trump’s first act of political theater ended in the execution of 13 people. President Biden shouldn’t allow Trump to repeat that travesty." In Trump’s final months in office, his administration executed 13 people in rapid succession, more than any administration in over 120 years. The Trump administration also amended the federal execution protocol which opened the door to more brutal methods of execution, including death by firing squad, electrocution, and nitrogen hypoxia, an untested and torturous method. Below are additional comments from: Paul O’Brien, executive director, Amnesty International USA: “President-elect Trump has promised to restart and accelerate the federal death machine, just as he did in his last administration. In the span of only 6 months, the Trump administration executed more people than the 10 previous presidential administrations combined. The executions carried out in his first term demonstrated to the world how the federal death penalty is fundamentally broken and that this ultimate cruel, inhuman and degrading punishment should be abolished forever. We should take Trump at his word when he says he plans to repeat this horrific killing spree, and Biden must do what he can now to prevent it.” Janai Nelson, president and director-counsel, Legal Defense Fund: “Since our founding, LDF has been unwavering in its fight to abolish the death penalty and eliminate racial discrimination from our criminal legal system. The death penalty is rooted in slavery, lynchings, and white vigilantism and historically weaponized against people of color. From the Groveland Four in 1949 to many capital cases today, Black people are disproportionately impacted by the ultimate punishment. Commuting the sentences of the 40 individuals on federal death row is an unprecedented opportunity for President Biden to cement his commitment to remedying injustice by exercising executive clemency.” Margaret Huang, president and CEO, The Southern Poverty Law Center: “The death penalty is rooted in a deep history of racialized violence. To this day, race is still the biggest predictor of who gets sentenced to death, with Black people accounting for nearly 40% of those on federal death row, despite representing less than 12% of the adult population. And fully 70% of those on federal death row are from the South. Our nation, and particularly the communities that we serve in the Deep South, cannot achieve true racial justice while the death penalty remains in practice.” Joia Erin Thornton, executive director, FLOCC (Faith Leaders of Color Coalition): “President Biden should commute all federal death sentences because doing so would acknowledge and help redress the racial bias built into the federal death penalty system, allow government resources to be redirected to policies that actually make our communities safer, and allow the families of victims and incarcerated persons to focus on healing instead of living in legal limbo.” This letter is one of more than a dozen letters released today from hundreds of stakeholders from across the political and faith spectrums calling on President Biden to commute all federal death sentences, including Black pastors, former corrections officials, business leaders, current and former prosecutors, families who have lost loved ones to homicide, mental health advocates, and many more. All of the letters can be found here. -
News & CommentaryNov 2024
Capital Punishment
Biden Must Use Final Months in Office to Commute Federal Death SentencesBiden Must Use Final Months in Office to Commute Federal Death Sentences
In our series on how Biden can use the lame duck period to secure civil liberties and civil rights, we examine how Biden can combat President-elect Trump’s plans to greatly expand the death penalty and execute every person on the federal row. -
Press ReleaseNov 2024
Capital Punishment
National Security
Court Rules Signed Plea Agreements with Three of the 9/11 Defendants Are Valid and Must Go Into EffectCourt Rules Signed Plea Agreements with Three of the 9/11 Defendants Are Valid and Must Go Into Effect
WASHINGTON — A U.S. military court has agreed that the plea agreement reached with ACLU client Khalid Shaikh Mohammad back in August is valid and must go into effect. The judge’s decision comes three months after Defense Secretary Lloyd J. Austin III, overruled prosecutors and Brig. General Susan Escallier, the Guantánamo military commission’s convening authority, and revoked the signed plea agreement. In exchange for a guilty plea to all counts, the U.S. government agreed to life imprisonment instead of the death penalty for Khalid Shaikh Mohammad and two other defendants. The military judge’s decision follows litigation by the three defendants to enforce their agreement with the government. The negotiated plea process allows family members to get answers to long-held questions about the attacks directly from the defendants and, at sentencing, make statements about the tragic impact on them and their loved ones. The military judge has said he will next schedule a hearing for the guilty pleas to be entered. Since 2008, through its John Adams Project, the ACLU has provided capital defense support for detainees facing the death penalty in the military commissions, spending over $12.5 million to provide experienced capital defenders, mitigation specialists, investigators, and experts to the under-resourced military defense teams. Our efforts exposed unfairness, secrecy, and the ongoing role of torture in the Guantanamo military commissions, making clear that the commissions are a complete failure. The following is a statement from Anthony D. Romero, executive director of the ACLU: “By reinstating the plea agreements, Col. Matthew N. McCall rightly recognizes that Defense Secretary Austin stepped out of bounds. We are finally back at the only practical solution after nearly two decades of litigation. “The government's decision to settle for life imprisonment instead of seeking the death penalty in the case of Khalid Sheikh Mohammed was always the right call. For too long, the U.S. has repeatedly defended its use of torture and unconstitutional military tribunals at Guantánamo Bay. As a nation, we must move forward with the plea process and sentencing hearing that is intended to give victim family members answers to their questions. They deserve transparency and finality about the events that claimed their loved ones. “This plea agreement further underscores the fact that the death penalty is out of step with the fundamental values of our democratic system. It is inhumane, inequitable, and unjust. “We also urge the U.S. government to quickly relocate the men cleared for transfer, and finally end all indefinite detentions and unfair trials at Guantánamo.”