Friends of the court, enemies of the death penalty

On Monday, Gov. Gavin Newsom told the California Supreme Court that "racial discrimination infects the administration of California's death penalty" because existing "inequities in the imposition of death sentences are the result of racial terror and subjugation." On that same day, four current and two former California district attorneys presented evidence to the court raising "the disturbing possibility" that decisions to sentence defendants to death "are influenced by racial and ethnic discrimination."

They made their unprecedented presentations in separate amicus briefs in response to the court's invitation last June in the case of People v. McDaniel, S171393. The court focused its invitation specifically on the issues of factually disputed aggravating evidence and the ultimate penalty verdict, and whether the California Constitution requires juries to determine these issues unanimously and beyond a reasonable doubt. The amici took the opportunity to gather a massive amount of empirical research establishing how systemic flaws fatally infect the administration of capital punishment.

Newsom began by pointing to "three relevant mechanisms by which African American Californians have been disproportionately excluded from California capital juries: underrepresentation in jury venires, death qualification, and peremptory challenges." These three mechanisms "all but ensure that sentencing decisions are made by juries that are disproportionately White and death prone, heightening the risk that, absent additional protections, these decisions will be based on racial bias." The governor concluded that "California's capital punishment scheme is now, and always has been, infected by racism."

Newsom's brief presents a detailed analysis supporting his essential argument 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 the last two decades, "a multi state series of studies on the role of race in capital punishment revealed that African American defendants who killed African American victims were less likely to be sentenced to death than African American defendants who killed non African American victims." The governor confessed that California "is not immune from the invidious influence of racial bias in its application of the death penalty. As of July 1, 2020, Black Californians make up over a third of the state's death row, ... but only 6.5% of the state's population."

Newsom noted that racial disparities in the sentencing of younger offenders "are exacerbated by stereotypical perceptions of youth of color as 'dangerous predators,'" meaning that "White but not Black or Latinx criminal defendants benefit from the mitigating effects of youth." The numbers bear this out as nationally more than seven in 10 of all people sentenced to death under the age of 21 are Black or Latinx, whereas among adult defendants, slightly over half are Black or Latinx. Of California's current population sentenced in Los Angeles County for offenses committed when they were under the age of 25, 89% are people of color, whereas California's death row is overall 67% people of color (a shocking figure in its own right).

Newsom points out that Los Angeles County, where Don'te McDaniel, who is Black, was tried, is a national outlier in its continued imposition of capital punishment. Since the resumption of the death penalty in California in 1977, 44% of the people Los Angeles has sent to death row are Black and 17% are White. Currently, 85% of Los Angeles County's death row are people of color and just 15% are White, while the rest of California's death row is 59% people of color and 41% White.

The governor's traces the historical roots of these racial disparities. Since its inception, "the American death penalty has been disproportionately applied, first, to enslaved Africans and African Americans, and, later, to free Black people." As Northern states moved towards abolition, in contrast, the southern states "saw no solution other than capital punishment" to maintain the regime of racial domination over 2 million enslaved people, according to Justice William Brennan's dissent in McCleskey v. Kemp, 481 U.S. 279 (1987).

Citing the work of Bryan Stevenson, head of the Equal Justice Initiative, Newsom noted that the dismantling of Reconstruction meant that the southern "[s]tates began to look to the criminal justice system" to "maintain the subordination of African-Americans." "While the true number may never be known, a recent study documented 4,084 racial terror lynchings in 12 Southern states between 1877 and 1950." The eventual decline of lynching "relied heavily on the increased use of capital punishment imposed by court order following an often accelerated trial." An EJI report concludes that "the death penalty's roots are sunk deep in the legacy of lynching." For Black people, the death penalty was simply legalized lynching.

Newsom points out that his own state of California played an ignominious part in this racist history beginning with the passage of its own Fugitive Slave Act in 1852, just two years after it was admitted into the Union in 1850 as a "free" state. Though often associated with the Deep South, extrajudicial executions and organized hate groups have a long history in California. "White vigilantes routinely hunted and lynched people of color throughout California. Between 1850 and 1935, there were 352 documented lynchings in California, the majority of the victims were people of color. The state saw a resurgence of KKK activity in the 1920s and 1930s, as the Klan exerted significant power over state politics, helping to elect Governor Friend Richardson in 1922."

The state's legacy of racial terror is especially deep in Los Angeles, according to the governor. "Of the 352 documented lynchings in California between 1850 and 1935," Newsom notes, "there were approximately thirty six in Los Angeles County. Well into the 20th century, the city resisted desegregation efforts, with a wave of lawsuits seeking to enforce racial covenants to evict African American homeowners."

According to the governor, "these legacies of racial violence continue to infect California's administration of the death penalty. Moreover, there is a correlation between the influence of a politics of racial hatred and the development of legal standards. The use of the criminal justice system as a vehicle for segregating and subjugating Black Americans was far from a uniquely Southern phenomenon."

Newsom asserts that harmful stereotypes have been used to justify further discriminatory policies, as reflected in the persistence of racist laws, biased policing, and selective prosecution. "Mass incarceration boomed as a result of these racially discriminatory stereotypes of African American criminality. Black men are about 13 percent of the U.S. male population, but make up nearly 35 percent of all men with a sentence of more than one year. Black people are incarcerated in state prisons at 5.1 times the rate of white people." Again, California is no different. In a 2016 report cited by Newsom, the Sentencing Project found that one in every 22 adult Black men in California was imprisoned. In 2017, Black Californians were incarcerated in state prisons at a rate 8.0 times that of White Californians.

Turning to the pivotal role of juries in the American system, Newsom observed that "the right to jury service was among the full citizenship rights systematically denied to African Americans following the Civil War." Even after the U.S. Supreme Court held unconstitutional state statutes that on their face restricted jury service to White men (Strauder v. West Virginia, 100 U.S. 303, 310 (1879)), institutional opposition to Black enfranchisement and political participation took hold in the South. State officials became "more imaginative in their efforts to limit minority participation on juries." Some jurisdictions in California continued the wholesale exclusion of Black jurors, even if statutes prohibited the practice.

"As the nation's capital punishment system is inextricably linked to the legacy of slavery and racial terror," the governor's brief points out, so too is death qualification -- the principle that to serve on a capital jury, one must affirm the willingness to impose the death penalty. "Fifty years of social scientific study of death qualification, including research specific to California capital trials," Newsom states, "leaves no doubt that death qualification produces the following outcomes: the disproportionate removal of Black people from the jury pool; a seated jury that is more conviction -- and death prone -- than the original venire; and a jury that is susceptible to the influence of racial bias."

The governor's brief explains the racial impact of death qualification. First, "based upon their opposition to capital punishment, African Americans are significantly more likely than White people to be excluded from capital juries through death qualification." In fact, "the percentage of African Americans excluded was double to triple that of Whites." Second, "death qualified juries are also biased in favor of a death sentence in that a disturbingly significant percentage of these jurors do not understand penalty phase instructions, do not follow the law, and are motivated to vote for death based on erroneous beliefs about the death penalty and/or life in prison without possibility of parole." Third, "Black people and White people generally differ in their views about mitigating and aggravating evidence, with Black people significantly more receptive to mitigating evidence than are White people." And fourth, "death qualification also yields juries that are prone to the influence of racial bias."

Newsom cites a June 2020 report from the Berkeley Law Death Penalty Clinic which examined the history, legacy and ongoing practice of excluding people of color, especially African Americans, from California juries through prosecutors' peremptory challenges. "Prosecutors' reasons for striking Black and Latinx jurors frequently correlate with racial stereotypes, such as the juror's demeanor; appearance; close relationship with someone who has been stopped, arrested, or convicted of a crime; or distrust of the criminal justice system."

The DAs' amicus brief was filed by Diane Becton, the DA of Contra Costa County; Chesa Boudin, the DA of San Francisco; Jeffrey F. Rosen, the DA of Santa Clara County; Tori Verber Salazar, the DA of San Joaquin County; George Gascón, the former DA of San Francisco and candidate for DA of Los Angeles County; and Gil Garcetti, former DA of Los Angeles County.

Their DAs' amicus brief largely reinforces Newsom's with the added strength of speaking from the viewpoint of the men and women who actually prosecute capital cases. While the law is clear that "prosecutorial discretion cannot be exercised on the basis of race" (McCleskey), the DAs themselves candidly admit the data suggests that, "these decisions are influenced, consciously or unconsciously, by race." The DAs cite a San Diego study that found "[i]n cases with white victims and minority defendants, the odds the District Attorney would seek death were over seven times as high in [white victim/Latinx defendant] cases and six and a half times as high in [white victim/black defendant] cases as in cases with black or Latinx victims."

Similarly, the DAs point to previous studies, in both California and other states, that have found "consistent evidence of a greater probability of death sentencing and charging in cases with white victims." Likewise, they cite a statewide study of homicides between 1978 and 2002 that found that "individual special circumstances apply to defendants disparately by race and ethnicity, even after controlling for case culpability, victim race, and year." The DAs rely on the groundbreaking 2005 study, "The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990 1999," by Glenn L. Pierce and Michael L. Radelet, which found that "death sentencing in California is highest in counties with a low population density and a high proportion of non Hispanic white residents. The more white and more sparsely populated the county, the higher the death sentencing rate."

The DAs' essential argument is based on the premise that Furman v. Georgia, 408 U.S. 238 (1972), and its progeny require the state to adopt a non arbitrary means of distinguishing the few convicted murderers sentenced to die from the many murderers who receive lesser sentences. However, the DAs concede that neither "California's list of the 'special circumstances' that make murderers eligible for the death penalty nor its penalty phase list of 'aggravating factors' fulfills that function." As a result, the DAs make the remarkable admission that "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."

Erwin Chemerinsky, dean of U.C. Berkeley School of Law and co counsel on the governor's brief, credits Elisabeth Semel, director of the Death Penalty Clinic, as the principal author of the brief for "situating the issues in McDaniel in the context of the racism that has infected the death penalty throughout its history, including now." Chemerinsky knows of no other governor who has had the cov.urage to take such an extraordinary step. Since the case interprets California law, its Constitution and statutes, according to Chemerinsky, the eventual decision by the California Supreme Court could not be reviewed or overturned by the U.S. Supreme Court.

One of the attorneys who represented the DAs, Natasha Minsker, said this is "the first time California prosecutors have submitted a brief to the California Supreme Court saying the death penalty is applied in an unfair and racially biased manner that is inconsistent with the state constitution." If the court rules that the jury findings in the penalty phase must be unanimous and beyond a reasonable doubt, she points out that "the Court will have to decide what that means for the more than 700 people on death row who were sentenced in violation of these state constitutional protections."

According to George Gascón, one of the former DAs who joined in the brief, if "the Court determines that protections cannot be implemented that would prevent persons from being sentenced to death in a manner that is arbitrary, they may deem the death penalty to be unconstitutional as it is currently applied." Gascón added that with "22 of 23 individuals condemned to death in Los Angeles since 2012 having been people of color, the court need look no further for proof that the death penalty is applied arbitrarily." He calls such "disparate application the hallmark of an unjust legal system" and said he joined in the DAs amicus brief "to implore the California Supreme Court to end the arbitrary application of the death penalty." 