Washington State Court Perpetrates a Capital Canard

                On October 11, Washington State's Supreme Court issued a decision perpetrating two insidious canards that, like those ghastly movie goblins who return to haunt us every Halloween season, simply refuse to die.

                In Washington v. Gregory, that court held Washington State's death penalty unconstitutional  on grounds that (1) it was discriminatorily applied to black murderers; and (2) failed to serve any "legitimate penological goal" because it lacked any deterrent effect. 

                Because the ruling was based on state law rather than the U.S. Constitution, it cannot be appealed to the U.S. Supreme Court and is the final word on the death penalty issue in Washington State.  The decision has little practical impact on Washington's death row inmates, moreover, because that left-oriented state does not actually carry out executions, even though state statutes still authorized capital punishment. 

                But the court's widely-reported opinion does have significant and disturbing consequences because it reiterates two false legal and penological doctrines that are mindlessly regurgitated in the media, in politics, and in predominant elements of the legal and policy communities.

                I will not dwell here on the court's complete distortion and sophistry on the deterrence issue.   Authoritative studies recorded elsewhere (e.g., by David Mulhausen of the Heritage Foundation), as well as the most basic logic and common sense, establish that actual and timely enforcement of the death penalty does have a significant deterrent effect.  Lenient or long-delayed penalties have little chilling effect on potential perpetrators, but, as Dr. Samuel Johnson famously said, "Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully."  

                Studies and arguments to the contrary merely establish that capital punishment's general deterrent effect is imperfect, not futile.  There are obviously categories of crazed, hardened, or furiously impassioned persons who are immune to abstract deterrence.  But it has been demonstrated that each actual execution deters anywhere from 3 to 18 murders, which is surely a "legitimate penological objective."  

              Further, the heedless Washington court's deterrence analysis had another dispositive flaw:  It failed to address the indisputable effect of specific deterrence.  A duly executed and dead murderer is specifically and absolutely deterred from terrorizing or killing fellow inmates or prison staff, or from killing innocent citizens after a prison escape – tragic consequences that do in fact occur when murderers are not executed.

                But the Washington court erred even more egregiously in its haphazard "holding" that the death penalty is discriminatorily imposed on black murderers in Washington.  

               The court rested this ruling on an ideologically-driven statistical study based upon a small data set (there were only 9 persons under sentence of death in Washington through 2016), substandard p-values, subjective coding of variables, and various "errors" recognized even by the court (decision at n. 7).  Further, the study established barely marginal statistical significance even if accepted as valid.  Indeed, the court inadvertently acknowledged the weakness of the decision's statistical underpinnings when it stated:  "We make this determination by way of legal analysis, not pure science. . . . [W]e decline to require indisputably true science to prove that our death penalty is impermissibly imposed based on race." (decis pp. 21-22).  Yet the decision rested squarely upon a highly abstruse, but patently flawed, statistical study rather than on direct evidence of discrimination.  In other words, it rested on "impure science" of the most questionable kind.

                Worst of all, the decision didn't even purport to establish that any actual discrimination motivated the sentencing of the murderer Gregory in his own case.  It adopted the absurd proposition that the constitutionality of a criminal defendant's sentence depends upon the statistical patterns deciphered by social scientists in past cases rather than the gruesome particulars of the defendant's individual crime.

                Rather than wrestling with the convoluted "p-values" and subjective regression analysis that produced its improbable conclusion – i.e., that the extremely progressive polity, government, and judiciary of Washington State collectively discriminate against blacks in capital sentencing – the court could have consulted objective and factual national death penalty data that are glaringly inconsistent with its decision.  Those data show that the death penalty is, and has long been, imposed disproportionately on whites, not blacks.

                In short, the court's race-based decision was not merely wrong; it was the opposite of the truth.

                The Justice Department's Bureau of Justice Statistics (BJS) carefully monitors the administration of capital punishment in all states on an annual basis.  Its most recent report, Capital Punishment, 2016, was published in April 2018 (there is a lag in the annual BJS reports due to the difficulties in collecting and collating the data).  The 2016 Report found:  "Of the 20 prisoners executed [in 2016], 18 were white (2 of Hispanic origin) and 2 were black [emphasis added]."  BJS further reported:  "Among prisoners under sentence of death at year-end in 2016, a total of 55% were white and 42% were black."

                The fact that executions of whites in 2016 exceeded execution of blacks by 9 to 1 was no glaring aberration.  An earlier BJS Report in 2013 tabulated executions by race from 1977 to 2013 (Capital Punishment 2013, Table 11).  For the entire 35-year period covered, there were 770 executions of whites (57%) and 464 of blacks (34%).  In 2013, it was 23 whites versus 13 blacks executed.  In 2012, it was 25 whites, 11 blacks.  And so on through the years.  The last year in which black executions exceeded white was 1991 – 27 years ago – when there were 7 blacks executed versus 6 whites.  During this entire 35-year period, there were only two years (1989 and 1991) in which more blacks were executed that whites.

                Advocates of the discriminatory death penalty canard might, and do, argue that such data fails to account for the fact that blacks constitute only 13% of the U.S. population but account for well more than 13% of executions (i.e., 34% of executions during the era covered by the 2013 BJS Report).  That argument is futile, however, because the relevant population for this comparison is not the general population, but the population of those who alone are eligible for the death penalty – murderers.  Under U.S. constitutional law, only those who commit murder are eligible for the death penalty.

                The FBI's recurring reports on Crime in the United States establish that blacks consistently represent over 50% of murderers in the United States.  During the 28-year era covered by the FBI's 2011 Homicide Trends report (1980 to 2008), 52.5% of U.S. homicides were committed by blacks while 43.5% were committed by whites (NCJ 236018, Table 7).  More current FBI reports confirm this pattern. In 2016, for example, 53.5% of murder offenders in cases where the race was known were black (2016, Crime in the United States, Overview).  For 2017, the figure was 54.2% (6,444 black murder offenders out of 11,883 such offenders where race was known) (2017, Crime in the United States, Table 3).

                These straightforward figures speak with a decisive clarity that exposes the Washington court's tortured manipulation of reality for the sophistry that it is.  Objective BJS and FBI data establish that while black perpetrators commit slightly more than 50% of U.S. murders, they represent only about one-third (and in 2016, only 10%) of those who are ultimately executed for their murders.   The same data establishes that white murderers are therefore about twice as likely as blacks to be executed in the United States.  

              Unless sentencing decision-makers in Washington State are driven by an element of anti-black discrimination that is not manifest in the nationwide administration of capital punishment, the Washington Supreme Court's decision in the Gregory case is demonstrably and dangerously  wrong.