Abolition of the death penalty is likely in the near future, a constitutional law professor says.
“In State v. Gregory, the state court held that the death penalty, as imposed in the state of Washington, was unconstitutional because it was racially biased,” noted Epps, a faculty member at the University of Baltimore.
Epps pointed to a ruling from the Washington Supreme Court, which found in October 2018 that death penalty sentencing in that state was “…arbitrary and racist in its application.”. This ruling gives Epps hope the death penalty is moving to “…its eventual demise…”
The court’s decision was based on two studies which gave evidence that in Washington, “Black defendants were four and a half times more likely to be sentenced to death than similarly situated White defendants.”
“Washington’s death penalty is administered in an arbitrary and racially biased manner…”. This is a violation of the Washington State Constitution’s prohibition on “cruel punishment,” the court concluded.
Epps said the U.S. Supreme Court’s management of capital punishment cases over the past half century to be “miserable.”
It was 1972 when the U.S. Supreme Court placed a moratorium, (15 years), on death sentences in Georgia, finding that state’s capital punishment laws, “cruel and unusual,” in violation of the 8th Amendment of the U.S. Constitution.
The concern was that an argument could be made that Georgia’s judicial processes for capital crime could statistically be shown as “arbitrary or racially based,” said Epps.
Further he wrote that in 1987 when McCleskey v Kemp came before the court, once more from Georgia, the criminal defense claimed a “dual operating system” was in play in that state which gave greater penalties for Black defendants compared to White. Handing out penalties based upon race is “a clear violation of the 8th Amendment’s ban on cruel and unusual punishment” and of the 14th Amendment’s guarantee of the equal protection of the law. Justice Powell cast the deciding 5-4 vote, writing for the majority in which the ruling went against McCleskey and his criminal defense. But years later, retired Justice Powell told his biographer he “…would change his vote in McCleskey…”