California’s death penalty system has long been the subject of intense scrutiny. Critics have pointed to its exorbitant cost, legal inconsistencies, and failure to deliver on promises of public safety or deterrence.
But perhaps the most damning and irrefutable critique lies in its racially discriminatory application.
A sweeping literature review published in the Santa Clara Law Review by legal scholars Catherine Grosso, Michael Laurence, and Jeffrey Fagan reveals how race continues to shape every facet of the state’s capital punishment system—from the first moments of police investigation to the final judgment in the courtroom.
The findings are deeply troubling.
Black defendants in California are up to 8.7 times more likely to be sentenced to death than defendants of other racial backgrounds. Latino defendants are up to 6.2 times more likely to face death sentences. And across all races, defendants are nearly nine times more likely to be condemned when at least one of the victims is white.
According to the review, these statistics are not merely coincidental, but reflect deeply embedded structural and institutional forces that continue to distort the administration of justice.
A major source of the disparity lies in California’s capital statute itself, which is one of the broadest in the nation.
The state currently recognizes 32 “special circumstances” that can make a defendant eligible for the death penalty. These include not only heinous crimes like torture or multiple murders, but also felony-murder circumstances, carjackings, drive-by shootings and gang-related killings.
Many of these additions came during a period of aggressive “tough-on-crime” legislation in the late 20th century, when lawmakers and voters alike often equated urban violence and gang activity with communities of color.
California’s 1978 Briggs Initiative marked a turning point. Its drafters intentionally broadened the statute in a way that made nearly every first-degree murder potentially eligible for the death penalty. The expansion was advertised to voters as a way to ensure that “every murderer” could face execution.
Years later, Proposition 21 in 2000 added a gang special circumstance to the list, allowing prosecutors to seek the death penalty in cases where the victim’s killing was said to benefit a criminal street gang—a provision heavily reliant on subjective determinations by law enforcement about gang membership and motive. These additions have disproportionately affected young Black and Latino men.
But the problem does not begin with the courtroom. Racial disparities take root long before charges are filed.
Law enforcement practices have a significant impact on which cases even become eligible for capital prosecution. Studies cited in the literature review show that homicide clearance rates—the rate at which murders are solved and suspects identified—are substantially lower for cases involving Black and Latino victims.
That means that crimes involving nonwhite victims are less likely to result in arrests and prosecutions, thereby narrowing the pool of cases where prosecutors can seek the death penalty. Conversely, white victim cases are more likely to be thoroughly investigated and solved, leading to a higher likelihood that those cases will progress through the system and potentially result in capital charges.
This disparity in clearance rates reflects both institutional bias and systemic disinvestment in minority communities. Police departments have historically deployed their most seasoned investigators to wealthier, often whiter neighborhoods, where cooperation from witnesses is higher and community trust in law enforcement is stronger.
In contrast, communities that experience over-policing and aggressive tactics—particularly Black and Latino neighborhoods—are more likely to withhold cooperation due to fear, distrust or prior negative encounters with law enforcement. This lack of cooperation can hinder investigations and reinforce a cycle in which violence in these communities is left unsolved, while violence in more affluent communities is pursued with greater intensity.
When cases do move forward to the prosecutorial stage, the disparities become even more pronounced. Prosecutors in California possess enormous discretion when deciding whether to pursue the death penalty. There is no requirement for uniform standards, and oversight of prosecutorial decisions remains limited.
The literature review documents consistent evidence that prosecutors are more likely to seek the death penalty in cases involving white victims, even when controlling for the severity of the crime and other legally relevant factors. The race of the defendant further influences these decisions, with Black and Latino individuals facing a higher risk of capital prosecution.
Plea bargaining adds another layer of racialized outcomes. Defendants in capital-eligible cases often plead guilty to avoid the death penalty, sometimes in the face of weak or circumstantial evidence.
This pressure is exacerbated for people of color, who may face predominantly white juries or have little faith in the fairness of the criminal legal system. Prosecutors can, and often do, use the threat of death to extract guilty pleas to lesser charges, even if those pleas may not reflect actual culpability.
Defense counsel performance also plays a crucial role. The review recounts multiple cases where attorneys assigned to defend clients of color harbored open racial bias or failed to present meaningful defenses.
In one egregious case, a California lawyer reportedly referred to his clients using racial slurs and told colleagues that his Black client “deserved to fry.” The client’s conviction stood for years, despite clear evidence that the attorney’s racism compromised his duty to zealously represent his client.
Such examples are not isolated incidents. The systemic underfunding of public defense, coupled with implicit or explicit bias, leaves many defendants of color at a severe disadvantage.
Jury selection and composition further stack the deck. Prosecutors have routinely used peremptory strikes to remove Black and Latino jurors, leading to juries that are disproportionately white.
Even when challenged under Batson v. Kentucky, the burden of proof for showing racial bias in jury selection is high, and many challenges fail. All-white or nearly all-white juries are more likely to convict and to recommend the death penalty, especially when the defendant is a person of color and the victim is white. This racial dynamic plays out in courtroom after courtroom, reinforcing disparities that began at the moment of arrest.
Judges, too, are not immune from bias. Some have allowed racist statements or imagery during trial. Others have upheld convictions despite clear evidence of racial disparities or misconduct. The combination of broad discretion and a reluctance to intervene has allowed these injustices to persist, often unchallenged, for decades.
In 2020, California took a step toward addressing these issues by passing the Racial Justice Act, which was expanded in 2023 to apply retroactively. The law gives defendants a legal avenue to challenge charges, convictions, and sentences that were influenced by racial bias—even if that bias was not intentional or explicit.
It also permits the use of statistical evidence to demonstrate patterns of racial discrimination. This shift has opened the door for new litigation, including an extraordinary writ petition filed in 2024 by several legal organizations challenging the state’s death penalty statute as unconstitutional under the California Constitution’s equal protection clause.
Support for reform is growing. Reports by the California Committee on the Revision of the Penal Code and the Task Force on Reparations have both cited the racial injustice of the state’s capital punishment regime. These findings are consistent with a national reckoning on race and criminal justice, as more states abandon the death penalty or place moratoriums on executions.
Yet despite the mounting evidence and growing public support for reform, California’s death penalty remains intact. More than 600 people sit on death row—the largest such population in the United States—with many of them sentenced under a regime that has repeatedly been shown to reflect and reinforce racial inequality.
The literature review by Grosso, Laurence, and Fagan does not simply document bias. It provides a roadmap for change. By identifying the specific decision points and institutions that drive racial disparities, it offers a foundation for lawmakers, courts, and communities to confront a deeply embedded injustice.
California can continue to defend a system riddled with racial disparities, or it can acknowledge the evidence, reckon with the truth, and take meaningful steps toward justice. As the data shows, the death penalty in California is not applied fairly—it is applied disproportionately. And it is applied with devastating racial consequences.
