Although they lack the headlines and academic attention of the Federal Constitution, state constitutions can prove immensely consequential within our federalist system. Recently, in State v. Gregory,1 Washington’s Supreme Court held that the state’s death penalty scheme violated article I, section 14 of Washington’s constitution — a provision that bars “cruel punishment” — because it was administered in an “arbitrary and racially biased manner.”2 In doing so, it became the first American court to declare the death penalty unconstitutional based primarily on statistical evidence of racial bias in sentencing. Gregory contrasts markedly with McCleskey v. Kemp,3 in which the U.S. Supreme Court rejected a similar claim under the Eighth Amendment.4 A comparison of the cases reveals that the Supreme Court may be cautious in recognizing new constitutional claims, but that state court decisions like Gregory can allay the Court’s concerns and thereby lay the groundwork for a subsequent broader reading of the Federal Constitution.
In 2001, Allen Gregory was convicted of aggravated first-degree murder and sentenced to death.5 The Washington Supreme Court reversed and remanded the death sentence because of prosecutorial misconduct and the jury’s reliance on Gregory’s reversed rape convictions during sentencing.6 After a new jury resentenced him to death, Gregory appealed again.7 He argued Washington’s death penalty statute violated the Eighth Amendment of the United States Constitution, as well as article I, section 14 of the Washington Constitution.8 He claimed the statute failed to narrow the class of defendants eligible for the death penalty, thereby resulting in “arbitrary imposition” and “room for the play of [racial] prejudices” in sentencing.9 In support, Gregory offered the Beckett Report, a regression analysis showing black defendants in Washington were 4.5 times more likely to be sentenced to death than similarly situated white defendants.10
The Washington Supreme Court reversed Gregory’s death sentence.11 Writing for the majority, Chief Justice Fairhurst12 held that Washington’s death penalty scheme, as it was maintained, was unconstitutional under the state’s constitution.13 In particular, the court held that the state’s scheme violated article I, section 14 because it was administered “in an arbitrary and racially biased manner.”14
Washington’s death penalty statute15 was modeled on the Georgia statute deemed constitutional by the U.S. Supreme Court in Gregg v. Georgia.16 The statute provides a bifurcated proceeding for imposing the death penalty: first the defendant must be found guilty of aggravated first-degree murder, and then a judge or jury must find that no sufficient mitigating circumstances merit leniency.17
In addressing Gregory’s claim that Washington’s death penalty statute violated both the United States and Washington Constitutions, Chief Justice Fairhurst acknowledged that precedent required the court to “resolve constitutional questions first under the provisions of [its] own state constitution before turning to federal law.”18 Addressing both state and federal law provides Washington’s citizens “double security,” as state constitutional provisions may be more protective than counterpart provisions of the United States Constitution.19 The court then insulated its holding from Supreme Court review by declaring that the case would be resolved on adequate and independent state constitutional grounds.20
The court proceeded to declare Washington’s death penalty unconstitutional under article I, section 14.21 Chief Justice Fairhurst found it “now apparent that Washington’s death penalty is administered in an arbitrary and racially biased manner,” thereby violating the state constitution.22 In doing so, the court afforded “great weight” to the Beckett Report commissioned by Gregory.23 The court acknowledged that “we are not statisticians” but explained how the statistics would aid its conclusion.24 First, the court established the purpose of the statistical evidence: Does it show that race has a meaningful impact on death penalty sentencing?25 Second, the court announced the burden of proof was not “indisputably true social science,”26 but rather “more likely [true] than not true.”27 The court noted that, at most, there was an eleven percent chance that the association between race and the death penalty was random.28 Third, the court relied upon nonstatistical information to dispel any belief that the association may be random. Given the “judicial notice of implicit and overt racial bias against black defendants in [the state of Washington],” the court was “confident that the association between race and the death penalty is not attributed to random chance.”29 Concluding that the Beckett Report showed that race had a meaningful impact on death penalty sentencing, the court declared Washington’s statute unconstitutional.30
Chief Justice Fairhurst ended her opinion by noting that Washington had tried, but failed, to address the problem of “arbitrariness” identified by the U.S. Supreme Court in Furman v. Georgia.31 However, she noted that the death penalty is not a per se violation of Washington’s constitution, but rather is unconstitutional as applied in Washington.32
In a concurring opinion, Justice Johnson33 acknowledged the racial bias concern, but wrote separately to highlight county-by-county variation in executions that also raised arbitrariness concerns. Within Washington, only two of thirty-nine counties had carried out executions since 2000, meaning that “[w]here a crime is committed is the deciding factor, and not the facts or the defendant.”34
Gregory illustrates the important role that state constitutional law can play in our federalist system. When the U.S. Supreme Court reads the Federal Constitution narrowly, state court decisions like Gregory can lay the foundations for the Supreme Court to later adopt a broader reading. Gregory stands in stark contrast to the Supreme Court’s rejection of a virtually identical claim under the Eighth Amendment in McCleskey. The McCleskey Court was particularly concerned about overriding state democratic processes and about the innovative nature of the plaintiff’s claim, suggesting the Court may have applied a “federalism discount” — an especially narrow interpretation of federal constitutional rights — to the Eighth Amendment.35 Decisions like Gregory can allay the concerns that encourage the Court to apply a federalism discount in two ways. First, Gregory adds Washington to the growing list of states to have voluntarily abolished the death penalty, thereby lessening the Court’s democratic override concern. Second, by accepting an innovative claim, Washington becomes a laboratory for constitutional interpretation, testing whether McCleskey’s slippery-slope concerns will play out (or not) in Washington.
Comparing McCleskey with Gregory illustrates that the Supreme Court was constrained by limitations not applicable to Washington’s highest court. In McCleskey, Warren McCleskey was convicted of murder in Georgia and sentenced to death.36 As part of a habeas corpus petition, McCleskey argued that Georgia’s death penalty scheme was administered in a racially discriminatory manner in violation of the Eighth Amendment.37 He supported his claim with a statistical report, the Baldus Study, which showed defendants charged with killing white victims were 4.3 times as likely to receive the death penalty as defen-dants who had killed black victims.38 The Court rejected McCleskey’s Eighth Amendment challenge to Georgia’s statute.39 An analysis of the similar facts and differing outcomes of McCleskey and Gregory suggests the Court may have applied a federalism discount.
The McCleskey Court, hearing the claim in 1987, had compelling reasons to avoid overruling states’ democratic processes.40 Just fifteen years earlier, in Furman v. Georgia, the Court had declared every state’s death penalty scheme unconstitutional for arbitrariness.41 Some Justices believed Furman would spell the end of the American death penalty,42 but the Court suffered a sharp democratic rebuke when thirty-five states swiftly enacted new death penalty laws.43 This experience almost certainly affected the Court’s holding in McCleskey. In his majority opinion, Justice Powell acknowledged the democratic action to reinstall the death penalty, stating that “[c]apital punishment is now the law in more than two-thirds of our States.”44 Not only would a decision in McCleskey’s favor have overridden state democratic processes; it would have also intruded into criminal law, a field over which states traditionally exercise sovereignty.45
In comparison, the Gregory court did not face any comparable constraint. For one, the Washington court could consider local evidence of in-state democratic support for abolishing the death penalty. Justice Johnson’s concurrence noted that Washington’s Governor Jay Inslee had issued a moratorium on executions,46 and the court may also have been aware that over two-thirds of Washingtonians oppose the death penalty.47 And even if the court badly misjudged public sentiment, democratic remedies are readily available. Washington’s justices are democratically elected in contested elections48 and are therefore not insulated from the democratic process in the way that life-tenured Supreme Court Justices are.49 Indeed, state supreme court justices in California and Tennessee have been ousted for voting against the death penalty.50 Washington’s justices also know Washington’s constitution can be amended more easily than the U.S. Constitution.51 Fears of overriding the democratic process were therefore far less pronounced in Gregory than in McCleskey.
In addition to concerns about overriding state democracy, the McCleskey Court was concerned with several “slippery slopes” that could arise from a broad reading of the Eighth Amendment. While most judges worry about the next case when making constitutional law, Supreme Court Justices have even more reason not to recognize new types of claims given the breadth of their jurisdiction and the potential for nationwide floods of litigation.52 In rejecting McCleskey’s claim, the Court expressed its concern that there was “no limiting principle” to McCleskey’s argument.53 Noting that the Eighth Amendment applies to all punishment, not just the death penalty, the Court stated that striking down the death penalty on evidence of bias would “throw[] into serious question the principles that underlie our entire criminal justice system.”54 The Court was also concerned that if penalties were invalid based on sentencing discrepancies related to race, then litigation may ensue if discrepancies in other variables were found, such as in facial characteristics or physical attractiveness.55 Given that these potential case management problems would apply nationwide, the McCleskey Court may have applied a federalism discount to the Eighth Amendment.
The Gregory court was freer to rule in Gregory’s favor, based on the fact that its decision “comes with no risks for other States.”56 The Supreme Court’s reluctance to expose the entire country to floods of litigation is dissimilar to the decision of Washington’s highest court to voluntarily accept that potential flood within its own state.57 In addition, state supreme courts have advantages over the Supreme Court in managing the precedential scope of their decisions. They are not constrained by justiciability and political question doctrines that prohibit the Supreme Court from hearing certain cases,58 and they are more involved in establishing procedural rules and working on law reform.59 They can use the common law to “shape evolving legal standards more cautiously” in a way federal courts cannot.60 And importantly, state supreme courts are more active in shaping state constitutional law than the Supreme Court is in shaping the Federal Constitution.61
Not only are state courts freer to read constitutional rights more broadly than their federal counterparts, but in doing so, they can allay the Supreme Court’s concerns about overriding democracy and opening judicial floodgates. As discussed, the Supreme Court is reluctant to overrule state democratic processes. But this reluctance is lessened when there is a trend among the states toward recognizing a new right. For example, in recent years the Supreme Court has relied upon state trends against executing the mentally handicapped62 and minors63 to declare such applications of the death penalty violations of the Eighth Amendment. Other rights have seen similar treatment by the Court. For instance, seven state supreme courts provided expansive protections to same-sex couples under state constitutional law before Obergefell v. Hodges64 was decided.65 Justice Kennedy recognized this contribution in his majority opinion, acknowledging that “the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions.”66 Gregory fits within this mold of building consensus among states in order to assist the Supreme Court in recognizing broader federal constitutional rights. Gregory makes Washington the twentieth state to abolish the death penalty,67 and the seventh to do so since 2007.68 As a simple “brick in the wall” of death penalty abolition, Gregory helps to lay the groundwork for a later reevaluation of federal death penalty jurisprudence.
Decisions like Gregory are also significant in counteracting the Supreme Court’s concerns about recognizing new types of constitutional claims that may have slippery-slope problems. The McCleskey Court worried that there was no limiting principle if any form of punishment could be struck down based on any arbitrary associations between a characteristic and punishment.69 In adopting the reasoning the McCleskey Court refused to adopt, the Gregory court has opened up Washington as a laboratory for constitutional experimentation. Whether the McCleskey Court’s fears were well founded can be measured by looking to see if Washington’s “entire criminal justice system”70 comes under attack post-Gregory. If it does not, then the experiences of Washington’s courts in addressing the McCleskey Court’s slippery-slope concerns may justify revisiting that Court’s holding.
Gregory is yet another example of the important role state constitutional law can play in our federalist system. Reluctant to override state democratic processes and to subject the nation to litigation floods, the Supreme Court may apply a federalism discount to federal constitutional rights. State court decisions like Gregory can allay the concerns that lead the Court to apply a federalism discount by helping to build consensus state by state and by offering their states as laboratories for constitutional experimentation.