California Governor and Six District Attorneys Say Death Penalty Is Arbitrary and “Infected by Racism”


In a case challenging California’s death penalty, Governor Gavin Newsom and six current and former California district attorneys filed amicus briefs in the California Supreme Court arguing that the state’s death penalty system is unconstitutionally arbitrary, unfair, and racially biased.

California’s capital punishment scheme is now, and always has been, infected by racism.

Governor Gavin Newsom

“California’s capital punishment scheme is now, and always has been, infected by racism,” Governor Newsom said in a statement. “Since its inception, the American death penalty has been disproportionately applied, first, to enslaved Africans and African Americans, and, later to free Black people. 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.”

The governor’s amicus brief recounts the nation’s and California’s history of racial injustice, connecting the legacy of slavery and racial terror lynching to racial discrimination in the administration of the death penalty today. It points to evidence showing that—in California, like the rest of the country—people convicted of killing white people are more likely to be sentenced to death and executed than those convicted of killing Black and Latino people.

And California continues to allow illegal racial discrimination in jury selection. A recent study of nearly 700 cases from 2006 through 2018 found that prosecutors across California use peremptory strikes to disproportionately keep Black and Latino citizens off juries.

The brief, written by Berkeley Law School Death Penalty Clinic Director Elisabeth Semel and Dean Erwin Chemerinsky, further argues that, to reduce the influence of racial bias, juries should be required to unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict.

“Race is such a pernicious influence in the way the death penalty is administered in California,” Ms. Semel told the Los Angeles Times. “We need certain safeguards that we know help reduce the influence of racial discrimination and … determining verdicts beyond a reasonable doubt and unanimously demonstrably reduce the influence of racial discrimination.”

Six current and former prosecutors—district attorneys Diana Becton (Contra Costa County), Chesa Boudin (San Francisco), Jeffrey Rosen (Santa Clara County), and Tori Verber Salazar (San Joaquin County) and former district attorneys Gil Garcetti (Los Angeles County) and George Gascón (San Francisco)—also filed an amicus brief arguing that the state’s death penalty is unconstitutional.

These prosecutors wrote that “they unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes…[and] the selection of defendants that receive the death penalty 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 brief agrees with the governor about raising requirements for jury sentencing verdicts. “The absence of procedural requirements such as a heightened burden of proof and jury unanimity amplify arbitrariness, further violating the constitutional command that the death penalty be reserved for the worst offenses.”

“California’s death penalty is not only inconsistent with the values of a humane society,” San Francisco District Attorney Chesa Boudin said in a statement, “but is administered in a racially biased way that imposes the death penalty disproportionately in cases where the victims were white or where the defendants were Black or Latinx.”

The briefs were filed in People v. McDaniel after the California Supreme Court requested briefing on whether the state constitution requires that a jury agree on the death penalty beyond a reasonable doubt and that it unanimously agree on the aggravating factors in death penalty cases.

It’s the first time in California’s history that a sitting governor has submitted an amicus brief to the state’s highest court asserting the death penalty is applied in an unfair and racially bias manner. Cristine Soto DeBerry, director of the Prosecutors Alliance of California, said this is also the first time in state history that a group of six current and former prosecutors have argued that California’s death penalty is arbitrarily imposed.

“The death penalty does not make us safer, there’s a serious risk of executing an innocent person, it costs about $300 million per execution, and it’s being arbitrarily applied in violation of the Constitution,” said former San Francisco District Attorney George Gascón. “With 22 of 23 individuals condemned to death in LA since 2012 having been people of color, the court need not look further than LA County for proof that the death penalty is applied arbitrarily. Such disparate application is the hallmark of an unjust legal system, and I implore the California Supreme Court to end the arbitrary application of the death penalty.”