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.