Case: Capital Punishment

Challenging California's Death Penalty System

Confronting Racial Bias in Capital Punishment Sentencing Schemes

On April 9, 2024, civil rights and legal groups filed a challenge to California’s death penalty in the State Supreme Court. The lawsuit asserts the state’s death penalty statute is racially discriminatory, as applied, and therefore unconstitutional under the Equal Protection guarantees of the California Constitution. The petition highlights the overwhelming evidence of racial bias in California’s administration of the death penalty.  

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. 

This petition draws from numerous statewide and county-level studies, all of which show that the death penalty is imposed disproportionately on people of color. 

This petition asks the Court to declare California’s capital sentencing scheme invalid as applied under the state Constitution and bar future capital prosecutions and trials and the execution of death sentences under those statutes. 

Evidence of racial discrimination in California’s death penalty system is pervasive and well-documented.

This lawsuit is based on numerous statewide and county-level studies in California, all of which show that the death penalty is imposed disproportionately on people of color. The studies show entrenched patterns of racial disparities in who is charged and sentenced to death in California. As the lawsuit asserts, these disparities establish that California’s death penalty statutes, as applied, violates the equal protection guarantees of the state Constitution. The race of the victim and the race of the defendant are both major determinants of whether someone is sentenced to death.

Reports and Studies

Catherine Grosso, along with Jeffrey Fagan,  and Michael Laurence, produced a groundbreaking study analyzing 1,900 California homicide convictions between 1978 and 2002, concluding:   

Racial Disparities in California Death Sentencing During the Post-Gregg Period, 1979 to 2018
Racial Disparities in California Death Sentencing (1987 to 2019)

Two studies by Nick Peterson analyzed statewide data from 1979-2018 and 1987-2019 finds similarly to Grosso, et al. that there are significant disparities in death sentencing based on victim and defendant race. 

Evaluating the Research on the Impact of Race in the California Death Penalty Regime

Stanford Prof. John Donohue, an economist and law professor and one of the nation’s leading empirical researchers on the death penalty, evaluated all of these studies and confirmed that evidence of racial bias in its implementation is “powerful and compelling.”  

The California Reparations Report

Already published analyses confirm these disparities at the state county level in California. For example, California’s Committee on Revision of the Penal Code, which reviewed much of this evidence, concluded in 2021 that “California’s death penalty is racially biased.” 

California's Broken Death Penalty: A White Paper Report by the Office of the State Public Defender

California’s death penalty system is racially discriminatory and has historically been weaponized to harm people of color.

Racism is inextricably linked to capital punishment. The death penalty has its roots in slavery, lynchings, white vigilantism, and the racial inequities in sentencing persist to this day. While lynchings were extrajudicial, capital punishment became a state-sanctioned method to carry out vigilante justice. The stark racial disparities that pervade California’s application of the death penalty are the result of a criminal legal system that is infected with racial bias at nearly every stage.

In 1972, LDF secured the first and only nationwide halt to executions in Furman v. Georgia. The decision forced states to rethink their laws going forward to ensure that the death penalty would not be administered in a discriminatory manner.  Since the reinstatement of the death penalty in 1976, California continued to broaden the scope of its death penalty and death eligibility.

Today, California has the nation’s most expansive death penalty statute.  Prosecutors have broad discretion to determine who should face the death penalty. With few checks on this discretion and power, prosecutors can open the door for racial bias to impact charging and sentencing decisions. California has no uniform criteria to guide prosecutors in deciding when to seek death in eligible cases. In addition, jury selection procedures like death qualification and the exercise of peremptory challenges are often used to exclude Black jurors and these schemes contribute to the racial disparities in the death penalty system.

"People remain in prison for decades despite clear evidence that the prosecutor removed all Black and Latino people from the jury – as happened in my case – or used offensive language to secure a conviction, for example, comparing the defendant to an animal. And people remain on death row and serving extreme sentences despite strong evidence of racial disparities in convictions and sentences."  


California Death Row Exoneree and Witness to Innocence Peer Organizer

California’s Constitution Guarantees Equal Protection Under the Law

For decades, California’s application of the death penalty has failed to meet the fundamental guarantee of the state’s own constitution: Equal protection under the laws. The California Constitution does not permit this two-tiered system of justice in which the death penalty is overwhelmingly applied to Black and Brown people.   

Other state supreme courts have found that the death penalty, as applied, violates their state Constitutions, including Washington in State v. Gregory (2018), Connecticut in State v. Santiago (2015), and Massachusetts in Commonwealth v. Colon-Cruz (1984)

Robust evidence of pervasive and persistent racial disparities demonstrates that California’s capital sentencing scheme is applied in a racially discriminatory manner, depriving capital defendants of equal protection of the law. California’s administration of the death penalty cannot survive strict scrutiny. There is no constitutional reason for California to maintain a racially discriminatory death penalty system. 

California’s Death Penalty: Where it Stands, Where We Go From Here.

Both Governor Gavin Newsom and California Attorney General Rob Bonta have acknowledged the persistent and pervasive racial disparities in the administration of the death penalty in California. In March 2019, Governor Gavin Newsom placed a moratorium on executions citing the racial disparities in the application of the death penalty. In a 2021 amicus brief submitted in People v. McDaniel, Governor Newsom acknowledged 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.” 

Despite the moratorium on executions, prosecutors have continued to seek and secure death sentences. Seventeen people have been sentenced to death since 2019. 80% of them are Black or Latino. California was second only to Florida for the most death sentences imposed in 2023; Everyone who was sentenced to death in California last year was Black or Latino.   

The Attorney General is the state’s chief law enforcement officer and has direct supervisory power over every district attorney and law enforcement officer in the state. Attorney General Bonta has publicly acknowledged that the death penalty has been applied in a racially biased manner in California, but his office continues to defend death judgments. The petitioners are asking Attorney General Bonta to issue an order to restrain and prohibit prosecutors from initiating, pursuing, or defending capital prosecutions and from executing death sentences. 

California Must End its Discriminatory Death Penalty Scheme

The constitutional issues raised in the petition have evaded review for 40 years and cannot be properly considered in an individual case due to the dysfunction of the state system. Unless the California Supreme Court grants this petition to stop capital prosecutions and executions, hundreds of people sentenced to death under an unconstitutionally applied statute will have no avenue of redress.  

Statewide evidence of racial discrimination in California’s death penalty system demands a statewide solution. Our petition asks the state Supreme Court to issue an order halting the pursuit of death sentences in California. This extraordinary order would prohibit the Attorney General and all district attorneys from seeking, obtaining, or executing death sentences. 

“The persistence of racial disparities in the administration of capital punishment in California is linked to a legacy of racial violence and oppression long perpetrated against Black people and other people of color. Capital punishment has roots in slavery, lynchings, and white vigilantism. Maintaining these violent remnants of racial subordination is unconscionable and has no place in modern society.

- Patricia Okonta

LDF Assistant Counsel

Since our founding, LDF has been a pioneering voice in the fight to abolish the death penalty and eliminate racial discrimination from the courts. 

Whether administered by federal or state government, the death penalty is infected with fundamental flaws, including persistent racial discrimination, and human error. The imposition of the death penalty in the United States has consistently been shown to disproportionately impact Black communities and other communities of color. Since 1973, at least 189 people wrongly convicted and sentenced to death have been exonerated. 100 of the death row exonerees are Black.

Throughout our history, LDF has firmly and unwaveringly argued that the death penalty is not only a form of cruel and unusual punishment, but also a violation of the equal protection guaranteed by the Fourteenth Amendment. Five decades after Furman v. Georgia, the death penalty continues to be unjustly applied, fails to deter crime, and violates fundamental human rights. A growing number of countries and U.S. states have recognized injustices and the immorality of capital punishment.

LDF Original Content

How Racism in the Courtroom Produces Wrongful convictions and Mass Incarceration

At every stage of the criminal justice process following the filing of charges, racial bias seeps into decisions made by prosecutors, jurors, and judges. From discrimination in jury selection, to racism and bias among jury members, and sentencing disparities, — three major failures in court proceedings that often lead to unjust convictions and sentencing — our criminal legal system repeatedly fails Black people. Racial bias in the courtroom undermines our democracy. Unless it is eliminated, no trial will ever be impartial. 

LDF Reports

Death Row USA

Death Penalty Cases and Statistics

Death Row USA includes data on death row populations by state, executions, statistics on race and gender, pending death penalty cases, and more in states with the death penalty. Death Row USA also includes data on federal death row populations, executions by the U.S. Government and the U.S. Military.

As of 2023, there are 2,331 people on death row. 961 of them are Black. One out of five people living in the U.S. are people of color. But 55% of people on federal death row are Black, Latino, Asian or Native.