SANTA CLARA, CA – A prosecutor here in Santa Clara County—once a big believer in capital punishment and claims he’s not a “progressive prosecutor” —is about to file here to change the sentence of 14 men on death row.
According to a story in the Los Angeles Times by Anita Chabria, Santa Clara County Dist. Atty. Jeff Rosen has signaled he “wants the court to re-sentence these men (Santa Clara has no women on death row) to serve life without parole. But in a few separate cases, already completed last year, he has requested that they be given the chance of freedom,” the Times story noted.
The Times said Rosen cites, “An inherent racism in our justice system handed down from slavery to mass incarceration and capital punishment.”
His office writes he is “not confident that these sentences were attained without racial bias. We cannot defend these sentences, and we believe that implicit bias and structural racism played some role in the death sentence,” the LA Times’ Chabria said.
Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley, said “Rosen’s move (is) ‘highly significant’ because it examines every case in his jurisdiction, and has the potential to convince others that it isn’t just single cases that require examination, but the death sentence as a whole.”
Of those of California’s death row, about 35 percent are Black, even though Blacks make up only seven percent of the state’s population. Overall, nearly 70% of death row inmates are people of color.
Semel argues it’s “not just the race of the alleged perpetrator that can lead to the death penalty, but also the race of the victim and the attitudes of those in charge of the prosecution. Suspects accused of killing a white person, for example, are more likely to face the death penalty than those accused of killing a person of color,” the LA Times writes.
“There is nothing, nothing that these cases have more in common than racial discrimination, whether we are talking about privileging white victims, meaning seeking the death penalty in white crime, or disadvantaging Black clients,” Semel said.
Jamila Hodge, CEO of Equal Justice USA, agrees, noting, “We cannot ignore that the death penalty’s roots stretch back to slavery and the lynchings that continued long after the Emancipation Proclamation. As lynchings diminished, executions surged. Every time we end the death penalty or stop executions, we chip away at centuries of racial injustice.”
The Times’ Chabria points out “Capital punishment in California exists in law, but in practicality ended in 2019 when Gov. Gavin Newsom ordered death row to be dismantled. Still, 625 men and 20 women remain incarcerated with death sentences, facing the unlikely but possible prospect that under a different governor, they could be executed. About one-third of the condemned are Black.”
The Times said “Rosen’s unprecedented move (he is the only prosecutor in California to have made such a blanket request) has gone largely unnoticed. But it represents a new battleground in the fight over the death penalty.”
Prosecutors around the state and U.S. have largely stopped using the death penalty, but, as the Times notes, “Rosen is the first to look back and answer the question — with collective action — If it isn’t fair now, how could it have been fair then?”
“Rosen’s move to undo what he sees as the ongoing injustice of past convictions puts pressure on other prosecutors to follow suit, especially those such as (Los Angeles DA) George Gascón who have made their reputation as reformers but who have failed to go as far.
“Gascón’s office said he has been examining death penalty sentencing on a case-by-case basis and 29 people have been re-sentenced out of more than 120 on death row convicted in L.A. But he is unlikely to ask for a group re-sentencing in an election year, with a solid conservative challenger,” according to Chabria in the LA Times.
“It doesn’t mean that I think things are as bad today as they were 50 years ago, I completely reject that idea,” Rosen told the LA times, adding, “But I also trusted that as a society, we could ensure the fundamental fairness of the legal process for all people. With every exoneration, with every story of racial injustice, it becomes clear to me that this is not the world we live in.”
Illinois Gov. George Ryan, a Republican, in 2003 issued a blanket commutation for all 167 inmates facing the death penalty in his state, wrote the LA Times, noting “Ryan cited worry that “the demon of error” was ever-present — one of the first and boldest actions by a prominent politician against the death penalty.”
Former Oregon Gov. Kate Brown did the same in 2022, re-sentencing 17 death row prisoners to life without parole. Twenty-three states, including Oregon, Colorado and New Mexico, have abolished the death penalty.
The LA Times’s Chabria added, “But California politicians, and voters, have been less certain. Over the years, voters have decided to keep the death penalty when asked via ballot measures. Rosen has asked for it four times, and won capital punishment in one case — that of defendant Melvin Forte, convicted of sexually assaulting and murdering a young German tourist.
“Forte’s sentence is among those Rosen is seeking to change.”
Currently CA Gov. Gavin Newsom, despite his moratorium, hasn’t gone as far as Brown or Ryan, the LA Times write, noting it leaves the decision largely up to local district attorneys like Rosen, who told the Times he’s doing it “because it was the right thing to do,” shifting since the murder of George Floyd in 2020. Shortly after, he put into place a series of prosecutorial reforms meant to address racial bias, including deciding not to seek the death penalty in future cases.”
But, Chabria added, “it wasn’t until two trips to Montgomery, Ala. — once the capital of the Confederacy and now home to the Legacy Museum, which traces the history of slavery through mass incarceration of people of color — that the past took on relevance for him as a matter of contemporary justice.”
“I went there supporting the death penalty,” he said. “I left not so sure anymore.”
“Rosen said the realization that was most profound for him was how often supposedly illegal lynchings took place with the support of law enforcement — too often victims were handed over by deputies or killed on the courthouse steps,” wrote the Times.
“Rosen said the museum and his own experiences as a prosecutor made him question if the death penalty can truly be separated from that foundation of lynchings — and if killing as punishment can ever be just or come from a place of moral authority regardless of race,” said the LA Times.
Rosen’s office said they have contacted all the victims in the cases he is examining. Some are relieved to have finality in the case, he said, knowing the death penalty is really just a never-ending appeal. Some would prefer to keep the death sentence regardless of whether it takes place or not, wrote the Times.
Rosen doesn’t make excuses for those convicted of horrific crimes, but notes “many of the crimes that led to the death penalty decades ago would not have garnered the same punishment today. Some of the perpetrators were convicted as teenagers, some were accessories to the crime at a time when laws made fewer distinctions. Many have been imprisoned for more than 30 years. Some had unfair trials,” the LA Times’ Chabria reported. 
