By David M. Greenwald
Executive Editor
Last week, arguing that evidence of racial bias in California’s implementation of the death penalty is “pervasive and well-documented,” an unprecedented lawsuit was filed in the Supreme Court of California challenging the state’s death penalty statute as racially discriminatory and unconstitutional under the Equal Protection guarantees of the California Constitution.
“There’s just one claim that the death penalty as applied has resulted in very dramatic racial disparities based on the race of the defendant and the race of the victim. And it’s something that has persisted for decades. It’s something that is found around the state,” Claudia Van Wyk, senior staff attorney with the ACLU Capital Punishment Project told the Vanguard.
The team of attorneys relies on a host of studies—new and old—that draw on statewide data, and that draw on county-by-county data.
They found, Van Wyk explained, “the same story crops up over and over. These are studies by a variety of different experts who are using a variety of methodologies and who have collected data in a number of different ways from a wide variety of sources. And 
whichever way the experts looked at it, they kept coming up with a similar story.”
These findings are: “Race of defendant matters, and that includes ethnicity of defendant and, same thing, race and ethnicity of the victim matters in deciding who is prosecuted in California and who is sentenced to death in California.”
Van Wyk added, “I think it’s crucial that the laws be applied in a constitutional and even-handed matter, and when people of color are disproportionately singled out for capital prosecution and disproportionately singled out for death sentencing, and then by the same token, white lives are treated as more valuable when deciding which cases merit capital prosecution and death sentencing. That’s a problem. That’s a problem for the whole society and not just for the individual.”
She explained that they filed with the Supreme Court because it’s their job to ensure that the Constitution is enforced across the entire state and “not just in one case at a time.”
These racial disparities have evident for years.
In 1987, in the case of McCleskey v. Kemp which went to the Supreme Court, McCleskey was convicted of murdering a police officer in Georgia and sentenced to death.
He filed a writ of habeas corpus which demonstrated statistically that the imposition of the death penalty in Georgia depended overwhelmingly on the race of the victim and the accused. However, the Supreme Court at that time held that because McCleskey could not prove the statistics were driven by intentional discrimination, which had a discriminatory effect on him and existed in this particular trial, there was no constitutional violation.
The Supreme Court, Morgan Zamora of the Ella Baker Center, told the Vanguard that “no matter how much data, statistics, actual factual information you bring to show that there’s bias and racism in our criminal legal system, that it’s not enough.”
As Justice William Brennan put in his dissent, the court was unwilling “to regard petitioner’s evidence as sufficient [and] is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing.”
He said, famously, “Taken on its face, such a statement seems to suggest a fear of too much justice.”
But California, when it implemented the Racial Justice Act, attempted to, at least at the state level, resolve this problem by reducing the threshold to show racial discrimination in the charging and carrying out of the death penalty.
Van Wyk noted that now “the evidence is just reaching the point where it’s overwhelming. It keeps adding up and we have two new studies that confirm what older studies had held and it seemed like it was time for the state court, the state Supreme Court to step in and do something.”
Zamora pointed out that “the idea that the facts and the statistics still continue to show that, especially in California, people of color are sentenced much more harshly.”
The petitioners here rely on 15 studies spanning 44 years, including four statewide and 11 county-level studies.
They argue: “The consistency of the many studies conducted by different scholars—using a variety of methods to examine distinct points in the administration of the death penalty over different time periods and numerous geographical locations—demonstrates the accuracy and validity of their results.”
In sum, the authors state: “Our current analysis demonstrates that, in practice, racial factors have infected California capital sentencing: whether sentencing is considered in the aggregate or as decisions made by prosecutors or juries, racial considerations determine who is subject to the ultimate punishment in California.”
Zamora pointed out that since the moratorium, 17 people in California have been sentenced to death, and 80 percent of them have been Black or Latino.
California has a reputation for progressivism, but Zamora pointed out that looking at California’s racial disparities for sentencing even aside from the death, “California’s racial disparities look like in terms of the way that we sentence people, and they’re probably one of the worst in the country compared to even states that you would assume are worse in the South.”
She added, “I think that people don’t realize, because we’re in California, all the time of what is actually happening in our system and turn a blind eye to it in many ways because they don’t realize that it’s happening. And I think that that’s really one of the important parts of bringing this litigation as well, is making it known to the public and bringing attention to these communities that are often forgotten about.”
Van Wyk is hopeful that the court will take this case and rule in their favor after they’ve had the opportunity to evaluate the overwhelming amount of data.
She noted that “the court has not previously addressed a statewide claim that the death penalty violates equal protection under the guarantees of the California constitution.”
