AMHERST, MA – In a recent article, Austin Sarat, a columnist and professor of jurisprudence and political science at Amherst College, argues California’s capital punishment system is plagued by racism, despite the state’s liberal reputation.
Sarat’s piece was published in Verdict, a legal analysis and commentary outlet associated with the legal database Justia.
In it, he examines how Kamala Harris and Gavin Newsom, two California politicians who have in recent years entered the national spotlight, have addressed racism within California’s death penalty system.
Now that she is the presumed Democratic nominee for president, Sarat points out Harris’ record as a California prosecutor is being closely examined. That record has been found by some to be “mixed and inconsistent,” writes Sarat, citing an NBC News review.
But one area of policy in which Harris has remained steadfast, according to Sarat, is the death penalty.
Sarat explains Harris has remained staunchly anti-capital punishment since her 2004 bid for San Francisco District Attorney, when she made and later fulfilled a campaign promise to never seek the death penalty.
Sarat explains Harris initially cited the risk of wrongful conviction and execution, particularly in an age when DNA evidence can lead to exonerations years after a conviction, as her reason for not seeking the death penalty.
And, Sarat writes, in recent years Harris has directly argued the death penalty is disproportionately carried out against people of color.
In a blog post from 2019, Harris argued California’s system of capital punishment has “discriminated against people with mental illness and people of color.”
Sarat supports Harris’ claim with a 2005 study demonstrating the death penalty was sought and handed out more frequently in California for those accused of killing a white person.
Sarat also links a 2020 study conducted in San Diego county, which found that race was a significant factor in determining whether the death penalty will be sought in a given case – it was sought at the highest rate when the accused was black and the victim was white.
California Gov. Newsom has also directly addressed the racial disparities at work in the death penalty system, writes Sarat, noting that in 2020 Newsom filed a brief in the case of Donte Lamont McDaniel, who had been on death row since 2009.
Newsom’s brief stated that the state’s system of capital punishment “is now, and always has been, infected by racism.”
That brief offered evidence that white jurors in California had been found to be “much less receptive to mitigation” when the accused was Black than in other cases. Meanwhile, Black jurors were less likely to pursue the death penalty in cases.
Sarat characterizes the California’s 2020 Racial Justice Act, which aims to “eliminate racial bias from California’s criminal justice system” by treating any instance of racial bias or racism at any stage of the criminal justice process as a miscarriage of justice, as a positive step, but argues the reforms have not done enough to solve the racial disparities in California’s criminal justice system.
According to Sarat, when it comes to solving those disparities, abolishing the state’s death penalty must be a priority. The Committee on the Revision of the Penal Code makes a similar recommendation, pointing out that 68 percent of those on death row in California are people of color.
A lawsuit filed in April of this year, notes Sarat, gives the California Supreme Court the chance to rule the state’s system of capital punishment unconstitutional.
