Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State)

This Article explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly, following the reinstatement of capital punishment in 1976. Relying chiefly on evidence drawn from Washington State, this Article asks whether the practice of comparative proportionality review has ensured that there is now a rational basis for distinguishing between those who are sentenced to die and those who are not. An analysis of the trial judge reports employed by the Washington State Supreme Court in reviewing death sentences, as well as the method used by the court in conducting its reviews over the course of the past two decades, indicates that the death penalty remains arbitrary and capricious in its administration. The failure of comparative proportionality review furnishes yet another reason for concluding that capital punishment cannot be conducted in a way that comports with claims of fairness.