California Governor, 6 District Attorneys File Briefs Saying State’s Death Penalty is Arbitrary and ​‘Infected by Racism’

Calling California cap­i­tal sen­tenc­ing pro­ceed­ings ​“infect­ed by racism,” Governor Gavin Newsom (pic­tured) has filed a brief in the California Supreme Court sup­port­ing a death-row prisoner’s claim that cap­i­tal pun­ish­ment as cur­rent­ly prac­ticed in the state vio­lates the California penal code and the state constitution. 

In a news release, the Governor’s office said the friend-of-the-court brief, filed on October 26, 2020 in the cap­i­tal appeal of Don’te Lamont McDaniel, was ​“the first time in California his­to­ry that a sit­ting gov­er­nor has filed an ami­cus brief call­ing atten­tion to the unfair and uneven appli­ca­tion of the death penal­ty.” On the same day, an alliance of pro­gres­sive pros­e­cu­tors announced that six cur­rent and for­mer California dis­trict attor­neys had also filed an ami­cus brief sup­port­ing McDaniel, argu­ing that California’s death penal­ty pro­ce­dures have result­ed in sys­tem­i­cal­ly arbi­trary sen­tenc­ing, in vio­la­tion of the state’s constitution.

“Amid our nation­wide reck­on­ing on racism and his­tor­i­cal injus­tice,” Newsom said in a state­ment accom­pa­ny­ing the fil­ing, ​“the State of California is con­tin­u­ing to address the fail­ings in our crim­i­nal jus­tice sys­tem. California’s cap­i­tal pun­ish­ment scheme is now, and always has been, infect­ed by racism.”

McDaniel has chal­lenged the death sen­tence in his case argu­ing that the state right to a jury tri­al requires that cap­i­tal sen­tenc­ing juries unan­i­mous­ly agree that pros­e­cu­tors have proven an aggra­vat­ing cir­cum­stance beyond a rea­son­able doubt before they may con­sid­er it in their delib­er­a­tions on life or death. He fur­ther argues that jurors must all agree that aggra­vat­ing cir­cum­stances out­weigh mit­i­gat­ing cir­cum­stances beyond a rea­son­able doubt before they may rec­om­mend that a defen­dant be sen­tenced to death. McDaniel’s appeal asks the court to over­turn case prece­dent that cur­rent­ly per­mits each juror to con­sid­er what­ev­er aggra­vat­ing fac­tor or fac­tors he or she believes have been proven, and that does not require the jury to agree beyond a rea­son­able doubt that a death sen­tence should be imposed. 

The Governor’s Brief

Newsom’s brief, authored by Berkeley Law School Death Penalty Clinic Director Elisabeth Semel and the law school’s Dean Erwin Chemerinsky, argues that California’s death penal­ty is plagued by geo­graph­ic arbi­trari­ness and dis­par­i­ties based on both the race of the defen­dant and the race of vic­tims. These dis­par­i­ties, the brief says, are a prod­uct of numer­ous fac­tors, includ­ing the dis­pro­por­tion­ate exclu­sion of jurors of col­or from death penal­ty venires and aggra­vat­ing cir­cum­stances that dis­pro­por­tion­ate­ly apply to defen­dants of color.

The brief says that jury deci­sions in the penal­ty phase of a cap­i­tal tri­al should be sub­ject to the same una­nim­i­ty and rea­son­able doubt stan­dards that apply to oth­er jury deci­sions, includ­ing whether indi­vid­ual aggra­vat­ing cir­cum­stance have been proven and whether aggra­vat­ing cir­cum­stances out­weigh mit­i­gat­ing cir­cum­stances. ​“Since its incep­tion, the American death penal­ty has been dis­pro­por­tion­ate­ly applied, first, to enslaved Africans and African Americans, and, lat­er to free Black peo­ple,” Governor Newsom said. ​“With this fil­ing, we make clear that all Californians deserve the same right to a jury tri­al that is fair, and that it is a mat­ter of life and death.” 

Semel called race ​“a per­ni­cious influ­ence in the way the death penal­ty is admin­is­tered in California.” We need cer­tain safe­guards that we know help reduce the influ­ence of racial dis­crim­i­na­tion,” she told the Los Angeles Times. “[D]etermining ver­dicts beyond a rea­son­able doubt and unan­i­mous­ly demon­stra­bly reduce the influ­ence of racial dis­crim­i­na­tion,” she said.

The Prosecutors’ Brief

Six cur­rent and for­mer pros­e­cu­tors — District Attorneys Diana Becton (Contra Costa Counnty), Chesa Boudin (San Francisco), Jeffrey Rosen (Santa Clara County), and Tori Verber Salazar (San Joaquin County) and for­mer D.A.’s Gil Garcetti (Los Angeles County) and George Gascón (San Francisco) — also filed a brief in sup­port of McDaniel. The Prosecutors Alliance of California, an orga­ni­za­tion of pro­gres­sive pros­e­cu­tors that helped iden­ti­fy the pros­e­cu­tors who sub­mit­ted the brief, said this was the first time California pros­e­cu­tors have filed a court brief argu­ing that the state’s death penal­ty is arbitrarily imposed.

“California’s spe­cial cir­cum­stance statute … make[s] almost every first degree mur­der eli­gi­ble for the death penal­ty,” the brief states. As a result, which defen­dants are ulti­mate­ly sen­tenced to death ​“is influ­enced both by irrel­e­vant fac­tors, such as geog­ra­phy and whether the defen­dant is rep­re­sent­ed by a pub­lic defend­er or a court-appoint­ed lawyer, and imper­mis­si­ble fac­tors such as the race and eth­nic­i­ty of the defen­dant and the victim.” 

“The absence of pro­ce­dur­al require­ments such as a height­ened bur­den of proof and jury una­nim­i­ty,” they write, ​“ampli­fy arbi­trari­ness fur­ther vio­lat­ing the con­sti­tu­tion­al com­mand that the death penal­ty be reserved for the worst offenses.”

Boudin crit­i­cized California’s death penal­ty as ​“incon­sis­tent with the val­ues of a humane soci­ety” and ​“racial­ly biased.” The death penal­ty, he said is imposed ​“dis­pro­por­tion­ate­ly in cas­es where the vic­tims were white or where the defen­dants were Black or Latinx.” 

“Each of us seeks a safe soci­ety in which our fam­i­lies can thrive,” Salazar said. However, she said, that goal can be achieved ​“with­out using an archa­ic form of pun­ish­ment that is rid­dled with errors. We often see the re-vic­tim­iza­tion of fam­i­lies through the lengthy and cost­ly appeals process for a method that has been proven to not deter vio­lent crimes from happening.”

Rosen, who recent­ly announced that his office will no longer pur­sue cap­i­tal pros­e­cu­tions, said ​“Whether you agree or dis­agree with the death penal­ty we can all agree that it should not be applied in an arbitrary manner.” 

“There is a grow­ing recog­ni­tion among pros­e­cu­tors that the way in which the death penal­ty is applied in California is unjust and that racial bias con­tin­ues to be a very seri­ous prob­lem,” said Cristine Soto DeBerry, the direc­tor of the Prosecutors Alliance. ​“This has prompt­ed a num­ber of dis­trict attor­neys to ques­tion whether the death penal­ty should still be used at all.”