If California’s capital punishment law is found to violate the state constitution, it may provide a template for death penalty opponents in other states.
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California’s defense attorneys for years saw their Black and Latino clients sent to death row at a rate much higher than other defendants accused of the same crimes.
The data showed that Black people were up to 8.7 times — and Latinos up to 6.2 times — more likely to be sentenced to death than others convicted of similar murder charges, according to academic studies. And those of all races were up to 8.8 times more likely to be condemned when at least one of the victims was White.
So a coalition of civil rights groups in California decided to get creative, launching a novel lawsuit in state court saying the death penalty’s racial tilt violated the state constitution — despite a landmark U.S. Supreme Court decision finding that disparity data alone did not mean capital punishment violated the federal Constitution.
It’s the first time a state’s death penalty statute has been challenged on systemic grounds untethered to an individual case, potentially paving a new legal pathway for capital punishment opponents in other states. If several more states abolish the death penalty, it would represent a significant shift in the national landscape, experts suggest.
“It would be meaningful in demonstrating where things are heading in this country, meaningful in isolating the states that continue to pursue and utilize the death penalty,” said Carol Steiker, a Harvard law professor and leading capital punishment expert.
For now, the U.S. Supreme Court has a solid conservative majority and is unlikely to revisit the federal constitutionality of the death penalty. But if enough states abolish it, Steiker said, a different version of the high court might be persuaded to take another look.
“A future court might very well look at a landscape that continues to move in this direction,” she said, “and find a global constitutional action possible.”
The lawsuit, an extraordinary request called a petition for writ of mandate, has cleared an initial hurdle at the California Supreme Court and will now be litigated in a Sacramento. A lower-court judge there is scrutinizing whether racial disparity data in 15 empirical studies proves petitioners’ claim that, as written, California’s death penalty statute violates the equal protection and cruel and unusual punishment clauses of the state constitution.
“We are not saying the death penalty is inherently racist,” said Lisa Romo, who spearheaded the lawsuit’s research for the Office of the State Public Defender. “We are saying the way our death penalty is currently being applied has unacceptable racial disparities.”
The legal journey will likely be long. California is an overwhelmingly Democratic state, but it has the most people on death row with nearly 600 inmates awaiting execution. Gov. Gavin Newsom (D) has suspended executions for now.
California law lists 22 factors making a homicide defendant eligible for the death penalty — for example, if gang activity was involved or the victim was a police officer. That is the most special circumstances of any state and, petitioners argue, a key cause of the racial disparities.
“Every day that this system is in place in this way, yielding these results, is another day that folks in California are subject to racial prejudice that is legitimized by this system,” said Joseph Wong, senior counsel at the Legal Defense Fund, one of the groups that filed the suit. “That is part of the reason for our urgency.”
Court filings from the office of California Attorney General Rob Bonta, a Democrat, say the state is taking the racial disparity claims seriously. Bonta’s office is now examining the methodology of the studies, the filings say, a process that will require expert opinions.
“Racial discrimination in the administration of a criminal justice system is unacceptable,” Bonta’s office wrote in court papers filed last week. “And in the Attorney General’s view, the statistical findings in the studies invoked by petitioners are extraordinarily disturbing.”
District attorneys in the California counties that most prolifically seek the death penalty have stepped in, filing briefs saying they vehemently disagree with the petition arguments, the attorney general’s mixed response and the idea that this lawsuit should proceed at all.
“Petitioners ask this Court to help them reach a goal that they could not achieve at the ballot box: abolition of capital punishment across California,” the Riverside County DA’s office wrote. It added that the lawsuit was not so much a legal claim as a “political campaign filed before the wrong branch of government.”
The challenge to California’s death penalty comes at a fraught moment for capital punishment in the United States. While Americans’ approval of the death penalty continues to decline, President Donald Trump has made capital punishment a core tenet of his tough-on-crime messaging. He ended a Biden-era moratorium on federal executions and has ordered the Justice Department to prioritize capital punishment.
Yet nearly half of U.S. states have abolished capital punishment, according to the Death Penalty Information Center, and only about a dozen are actively carrying out executions. Last year, 40 percent of the nation’s executions took place in Florida, where Republican Gov. Ron DeSantis has broken several state records related to the death penalty.
Sitting governors in four states have paused executions for the duration of their terms. Newsom announced in 2019 that he was closing the state’s death chamber, repealing the lethal injection protocol and placing an indefinite moratorium on executions.
“Our death penalty system has been, by all measures, a failure,” Newsom said at the time. “It has discriminated against defendants who are mentally ill, Black and Brown, or can’t afford expensive legal representation.”
Bonta has made similar declarations, saying in 2021 that studies show the state’s death penalty has “long had a disparate impact on defendants of color, especially when the victim is White.”
The words of both officials are cited in the lawsuit.
“This petition for the first time presents this Court with an opportunity to directly address the widely recognized data establishing that California’s death penalty provisions are administered in a discriminatory manner,” it says.
The stakes are high because if the state’s death penalty law is struck down, a new statute is unlikely in overwhelmingly Democratic California, political analysts say — making this a de facto fight over the existence of the death penalty in the nation’s largest state.
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