Lawsuit Filed at the California Supreme Court Alleges Racist Application of the Death Penalty Violates the State Constitution

On April 9, 2024, the California Office of the State Public Defender, along with several civil rights groups, filed an extraordinary writ petition at the California Supreme Court arguing that the state’s capital punishment system violates the state’s Constitution because of its racially biased implementation. In 2021, the California Committee on Revision of the Penal Code confirmed that racial bias is entrenched in the state’s death penalty system. “The California Constitution does not permit a two-tiered system of justice where the most severe sentence the state has on its books is imposed overwhelmingly on Black and Brown people,” said Lisa Romo, a Senior Deputy State Public Defender. “We urge the Court to address this long-standing injustice and ensure that Black and Brown people are no longer sentenced disproportionately to death.”

In the filings, attorneys for the plaintiffs noted that both Attorney General Rob Bonta and Governor Gavin Newsom have “agree[d] that persistent and pervasive racial disparities infect California’s death penalty system.” AG Bonta opposes capital punishment and has previously acknowledged there is “a disparate impact on defendants of color, especially when the victim is white.” Gov. Newsom has also publicly disclosed his opposition to the death penalty, stating in an amicus brief previously filed with the court that the “overwhelming majority of studies that have analyzed America’s death penalty have found that racial disparities are pervasive, and that the race of the defendant and the race of the victim impact whether the death penalty will be imposed.” In March 2019, just two months after taking office, Gov. Newsom signed an executive order placing a moratorium on the death penalty in California, explaining that “death sentences are unevenly and unfairly applied to people of color.” Despite the acknowledgement from both AG Bonta and Gov. Newsom regarding these serious racial disparities, the lawsuit alleges that California prosecutors have continued to seek the death penalty and obtain sentences against a disproportionate number of people of color.

The California Committee on the Revision of the Penal Code reported in 2021 that Black defendants are up to 8.7 times more likely than all other defendants to be sentenced to death, while Latino defendants are up to 6.2 times more likely to be sentenced to death. Regardless of a defendant’s race, individuals charged with allegedly killing at least one white victim are up to 8.8 times more likely to be convicted than if the victim is not white. Analyzing 1,900 homicide cases occurring between 1978 and 2002 in California unveiled notable discrepancies in sentencing outcomes based on race. Black defendants were found to face a 4.6 to 8.7-fold higher likelihood of receiving the death penalty compared to similarly situated defendants in other cases. Similarly, Latino defendants were shown to be 3.2 to 6.2 times as likely to be sentenced to death as their counterparts from other racial demographics. “In practice… racial considerations determine who is subject to the ultimate punishment in California,” said Catherine Grosso, the study’s lead author and Michigan State University law professor. Several studies focused on individual California counties reach similar conclusions, including studies from Riverside County and San Francisco County.

The lawsuit argues that these studies show that California’s death penalty is broken and unfixable. “The body of evidence presented in this petition demonstrates what experienced death penalty practitioners in California and around the country have long known: decision-makers at every stage of capital prosecution from charging to sentencing have treated Black and Brown lives as less valuable than white lives,” said Claudia Van Wyk, senior staff attorney with the ACLU Capital Punishment Project. “This case gives the California Supreme Court an opportunity to implement the State’s core constitutional values and right this wrong.”

In 1972, the California Supreme Court struck down the state’s capital punishment scheme, declaring it unconstitutional, but a voter referendum quickly reinstated it. In the same year, the United States Supreme Court ruled in Furman v. Georgia that Georgia’s capital punishment law was unconstitutional because of its broad discretion, temporarily pausing California’s executions. Just five years later, the California Legislature passed a new death penalty statute, despite then-Governor Jerry Brown’s veto. This statute survived voter referendums in 2012 and 2016, by 4% and 6%, respectively, despite declining public support for capital punishment. California’s last execution was in 2006, but following the execution, a federal judge found problems with the lethal injection protocol and training and ordered a pause on future executions until all issues were fixed. 

The petition to the Supreme Court of California was filed by the Legal Defense Fund (LDF), the American Civil Liberties Union Capital Punishment Project (ACLU CPP), the ACLU of Northern California (ACLU NorCal), WilmerHale, and the Office of the State Public Defender (OSPD). This challenge was brought on behalf of petitioners OSPD, Witness to Innocence, LatinoJustice PRLDEF, the Ella Baker Center for Human Rights, and Eva Paterson, co-founder of the Equal Justice Society.