SEATTLE — Two years ago, when Washington's Supreme Court was reviewing the death sentence assigned to a black man accused of raping and murdering a 65-year-old woman, Justice Charles Wiggins found himself troubled by numbers.
Juries in the state were more likely to sentence African Americans, Wiggins noted; they did so in 62 percent of cases involving black defendants versus 40 percent for white defendants. In a dissenting opinion, he suggested further study was needed to determine whether the trend was statistically significant.
A new report from a University of Washington sociologist aims to answer the question. It finds that prosecutors have been slightly more likely to seek the death penalty against white defendants, but jurors have been three times more likely to impose it against black ones, other circumstances being similar.
Expense, differences in application by county, and the high rate of overturned death sentences — rather than racial disparities — were the main reasons Gov. Jay Inslee cited this month when he announced a moratorium on executions under his watch. But if true, the report's findings echo his worry that capital punsihment is "unequally applied," even in Washington, a state many consider to have the nation's most restrictive death-penalty system.
"It's positive to see that prosecutors aren't unfairly considering race in making decisions about when to seek capital punishment," Inslee's general counsel, Nicholas Brown, said after reviewing the report. "At the same time, it brings up a lot of unfortunate implications about juries."
Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, said he has long known that prosecutors here aren't more likely to seek execution against black defendants. But the association was less quick to accept the report's findings on what effect a defendant's race has on jurors, saying the study failed to control for some key factors that could help explain why some defendants received a death sentence while others didn't.
The report, by Professor Katherine Beckett, was commissioned by Lila Silverstein and Neil Fox, attorneys for death row inmate Allen Eugene Gregory, a black man convicted of raping and murdering a white woman in Pierce County in 1996. Silverstein and Fox plan to submit the report to the high court as part of Gregory's appeal next month.
Washington has executed five defendants under its modern death penalty law, adopted in 1981, and nine are on death row. Beckett reviewed the 285 cases involving adult defendants convicted of aggravated murder since 1981 for which trial reports are available. In 88 of those cases, the death penalty was sought, and in 35 of those, it was imposed. Many later had the sentences overturned.
Using the admittedly small sample size, Beckett's team coded the cases for number of victims, number of prior violent convictions, number of defenses offered and number of aggravating factors alleged by prosecutors, and other circumstances. In a regression analysis, she found that among similarly situated defendants, blacks were three times more likely than whites to be sentenced to death.
“Washington is not a state that tolerates discrimination, even when it doesn’t involve a matter of life and death,” Silverstein said. “We can’t be putting people to death based on their race.”
But Pam Loginsky, a staff attorney at the prosecutor’s association, said Beckett’s report doesn’t prove that’s what’s happening and that it’s impossible to say why a single juror in any case might decide to block the death penalty. Under Washington law, a unanimous jury is needed to impose the death penalty; if there’s a single holdout, the sentence will be the only other alternative — life without the possibility of release.
“I don’t believe there is any conscious consideration of race, and I don’t believe the statistics bear out any impropriety based on race,” she said. “I can’t tell you that an individual juror in a given case doesn’t decide to extend mercy to the defendant because of his race, or because he has a cute smile, or because he resembles her favorite uncle. There can be any reason why a particular juror says, this person merits leniency.”
Loginsky pointed to what she described as several shortcomings with the study, noting that it did not control for factors that might well influence a jury’s determination. Those include the strength of a prosecutor’s case, the vulnerability of the victim, any mental illness of the defendant, and the nature of a defendant’s criminal record: “It lumps prior murderers in with prior robbers,” she wrote in an emailed critique.
Washington’s Supreme Court, which is charged with ensuring that capital punishment is administered proportionally, has previously said that “a review of the first-degree aggravated murder cases in Washington does not reveal a pattern of imposition of the death penalty based upon the race of the defendant or the victim.” But anti-death-penalty advocates are hoping to use momentum from Inslee’s moratorium to push the Legislature to abolish the punishment entirely.
Among the concerns the governor cited was the cost of capital cases and that whether prosecutors seek execution is “sometimes dependent on the budget of the county where the crime occurred.”
Beckett’s report bears out those geographic distinctions, noting that some counties, such as Thurston, request the death penalty in as much as two-thirds of their aggravated murder cases, while Yakima County, for example, has not sought execution at all in its nine death-eligible cases since 1981.