By Alana Bleimann
SACRAMENTO – Charging the state’s capital punishment “scheme is and always has been infected by racism,” California Governor Gavin Newsom Monday filed a 175-page amicus brief in People vs. McDaniel, arguing that juries must be racially balanced and unanimous in their sentencing verdict in all capital cases.
In a press statement, Newsom claimed it is the first time in history a California governor filed a brief highlighting “the unfair and uneven application of the death penalty,” and noted the “state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race.”
The brief argues that capital cases should require unanimity in the jury’s penalty verdict and proof beyond a reasonable doubt of disputed aggravating evidence.
“Amid our nationwide reckoning on racism and historical injustice, the State of California is continuing to address the failings in our criminal justice system. California’s capital punishment scheme is now, and always has been, infected by racism,” said 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,” he said.
The governor’s pleading discusses “the historical and current mechanisms that lead to the unequal application of capital punishment to people of color, especially Black and Latinx Californians, and explains how “this context, including the legacy of racial terror and subjugation, leads to significant racial disparities in capital prosecutions and sentencing based on the race of defendants and on the race of victims.”
The press statement quoted the pleading by noting that “people of color are excluded from juries and how their voices are diluted or silenced when they do serve on juries. Since jurors of color often have different experiences and perceptions of the justice system than white jurors and often are less likely to support death verdicts than their white counterparts.”
The brief argues that the “lack of unanimity or beyond a reasonable doubt requirement compounds racial discrimination and disparities in the death penalty,” and maintains that “requiring unanimity in jury determinations and the application of the beyond a reasonable doubt standard to the ultimate penalty determination is necessary to protect against the pernicious influence of racial bias in jury selection and decision-making.”
The brief comes just after a year and eight months after issuing a moratorium on the death penalty and closing the execution chamber in San Quentin State Prison.
The governor’s pleading highlights that people of color, specifically Black and Latinx people, are disproportionately affected by the law and, when not on trial, they are rarely in the jurors’ seats.
When people of color do get a chance to use their voice from the jury, they are often silenced especially when observing capital cases, the pleading reads—and adds that as opposed to white jurors, Black and Latinx jurors will be more likely to oppose the death penalty as it is a policy that affects their communities more heavily.
With this in mind, as well as many uncomfortable, yet true historical facts, Newsom said that “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 pleading, complete with dozens and dozens of pages of those facing the death penalty, points out there are “currently 215 people on California’s death row who were sentenced to death due to charges arising out of Los Angeles County. Of those 215,6 47 percent (101 people) are Black. By comparison, the rest of death row is 29 percent Black (142 out of 485 death judgments).”
More broadly, “85 percent of Los Angeles County’s death row are people of color and just 15 percent are white. Comparatively, the rest of death row is 59 percent people of color and 41 percent white.
“California’s current death row population has 104 people who have death judgments out of Los Angeles County and were sentenced to death for offenses committed when they were under the age of 25.8 Of that group, 51 people are Black (49 percent), 11 people are white(11 percent), and 89 percent of the group are people of color.”
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Simple solution: if the accused is Asian, all jurors should be Asian; if the accused is white, jurors all should be POC; if the accused is Black, all jurors should be Black; etc. Eliminates both racism and ‘white privelege’… a two-fer.
“Jury of their peers”… mandated in law, but ill-defined… as to “peers”… no guarantee that a jury, composed of the racial ‘balance’ of the population, isn’t racist…
I understand the history, the wrongs (they were wrong, but often, no racism)… moving forward, not clear what is proposed as a “new normal”… not convinced it would be non-racist… racists come “in all colors”… Tom Lerher nailed it in the song “National Brotherhood Week”…
I believe Newsom is posturing… not sure whether he is more focussed on abolishing the death penalty (as a matter of principle, personal conviction), or vote counting, and appealing to his “base”… look at his record of opposing the death penalty, and correlate to his election campaigns…
I am ‘torn’… as is society… part of me is strongly against the death penalty… part of me realizes that the Sandy Hook (never tried, gunman offed himself), Aurora theater (wantonly killing/maiming many), etc., most likely mentally ill, could have never had their MH issues resolved to ever re-enter society… which leads to the discussion of financial and moral “costs” between DP or LWOPP…
Yet, some face the ‘death penalty’, without being capable of crime, and that is considered a “right” to exact that…
That addresses the issue of race. Not the issue of unequal resources or unequal enforcement.