By David M. Greenwald
On Monday, Governor Gavin Newsom, in response to a rare request by the California Supreme Court, filed a briefing about the constitutionality in which the governor declared that the California Death Penalty has been applied in a manner that is unfair and racially biased.
San Francisco DA Chesa Boudin along with five other DAs filed an amicus brief asserting that the state’s death penalty system has resulted in arbitrary sentences in violation of the Constitution.
The six District Attorneys signing the brief include: San Francisco District Attorney Chesa Boudin, Contra Costa County District Attorney Diana Becton, former Los Angeles District Attorney Gil Garcetti, former San Francisco District Attorney and current candidate for Los Angeles District Attorney George Gascon, Santa Clara County District Attorney Jeffrey Rosen, and San Joaquin County District Attorney Tori Verber Salazar.
“I have long opposed the undeniably cruel and unjust practice of the death penalty. The death penalty’s application in California affronts the Constitution’s protections and principles,” said San Francisco District Attorney Chesa Boudin. “California’s death penalty is not only inconsistent with the values of a humane society, 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.”
“California’s capital punishment scheme is now, and always has been, infected by racism,” said Governor Gavin Newsom. “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 case is known as People v. McDaniel. The Court specifically asked to hear argument on whether the state’s constitution requires that a jury agree on the death penalty beyond a reasonable doubt and that the jury unanimously agree on the aggravating factors in death penalty cases.
In their brief they note that while “these amici take different positions as to whether the death penalty should be abolished,” the four current and two former DAs “unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes, and that the failure to construe the California Constitution and Penal Code Section 1042 to require the jury to choose death beyond a reasonable doubt and to unanimously find disputed facts relating to aggravating circumstances exacerbates the arbitrariness inherent in the State’s death penalty regime.”
As a result, “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 further states that “[t]he 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.”
They conclude: “[F]ailure to provide these procedural requirements amplifies the arbitrary application of the death penalty in California caused by the State’s failure to impose adequate substantive limits on who receives the death penalty.”
The governor’s actions on Monday mark the first time that Governor Newsom has submitted an amicus brief on any issue during his tenure as governor and the first time any sitting governor has submitted an amicus brief to the California Supreme Court asserting the death penalty is applied in an unfair and racially bias manner.
In his brief, he argues, “California’s capital punishment scheme is now, and always has been, infected by racism. Governor Newsom submits this brief because the life-and-death decisions in capital 
cases need the protections that would be provided by the requirements of unanimity and proof beyond a reasonable doubt in the jury’s verdict.”
Last year, the governor imposed a moratorium on the state’s death penalty.
“The intentional killing of another person is wrong and as Governor, I will not oversee the execution of any individual,” said Governor Newsom in March 2019. “Our death penalty system has been, by all measures, a failure. It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. Most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”
If the court rules on this, it would go much further than the moratorium—likely ending the death penalty altogether in California.
“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.”
“Whether you agree or disagree with the death penalty we can all agree that it should not be applied in an arbitrary manner,” said Santa Clara County District Attorney Jeffrey Rosen.
“Each of us seeks a safe society in which our families can thrive,” said San Joaquin County District Attorney Tori Verber Salazar. “We can achieve that righteous goal without using an archaic form of punishment that is riddled with errors. We often see the re-victimization of families through the lengthy and costly appeals process for a method that has been proven to not deter violent crimes from happening.”
“There is a growing recognition among prosecutors that the way in which the death penalty is applied in California is unjust and that racial bias continues to be a very serious problem with regards to the race of the defendant, the race of the victims, and the racial composition of the juries,” said Cristine Soto DeBerry, director of the newly formed Prosecutors Alliance of California. “This has prompted a number of district attorneys to question whether the death penalty should still be used at all.”
—David M. Greenwald reporting
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