The California Supreme Court has declined to review the petitions of two Los Angeles County defendants who had asked the Court to halt capital prosecutions in the wake of Governor Gavin Newsom’s decision to impose a moratorium on executions. The defendants had argued that there was an unconstitutional risk that jurors’ knowledge about the much-publicized moratorium would lead them to believe that any death sentence they might impose was unlikely to be carried out and would therefore diminish their sense of responsibility for imposing that punishment. The Court’s decision not to review the petitions permits prosecutors to move forward in seeking the death penalty.

California has not executed anyone since 2006 and Governor Newsom ordered the dismantling of the state’s execution chamber at the same time that he announced the execution moratorium.

“In light of this paradigm shift, a California jury in a capital case cannot be expected to provide a fair and reasoned penalty phase determination free from speculation,” wrote lawyers of defendant Cleamon Johnson. The inability “to comprehend fully the gravity of their decision,” Johnson argued, creates a constitutionally unacceptable risk that jurors might impose a death sentence merely to “send a message,” delegating to the courts the ultimate responsibility for whether a defendant should live or be condemned to die.

Lawyers for the other defendant, Jade Douglas Harris, argued that “the courts can no longer safely rely on the premise that jurors recognize a death sentence as an ‘awesome responsibility’ rather than a symbolic verdict.” Johnson’s trial lawyer, Robert Sanger, told the Los Angeles Times in July that “[t]he jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway.”

Prosecutors argued in opposition to the petitions that standard jury instructions are adequate to address the defendants’ concerns. “Jurors are routinely asked to set aside these types of things in order to reach a just verdict based on the evidence and the law,” prosecutors wrote in Johnson’s case. “The real goal of this petition is to turn Governor Newsom’s moratorium, which is nominally a ‘reprieve,’ into a judicial abolition of the death penalty in California.”

Although California has not carried out an execution in more than a decade, it has the largest death row in the United States and has imposed more death sentences than any other state in four of the last five years. The high number of death sentences has been driven largely by five southern California counties, including Los Angeles County, where Johnson is being tried. A recent study by the ACLU showed that, like Harris and Johnson, all 22 people sentenced to death in Los Angeles under the administration of the current District Attorney have been people of color.