Blacks and Latinos are far more likely than whites to be sentenced to death

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California’s death penalty law was declared unconstitutional by the state Supreme Court in 1972 but was quickly reinstated by the voters. The statute survived initiatives in 2012 and 2016 that sought to repeat it. And despite Gov. Gavin Newsom’s moratorium on executions in 2019, the death penalty is still the law of the state, which has 640 condemned inmates, the most in the nation.

But the state’s public defender and civil rights groups say capital punishment, as practiced in California, is incurably racist — Blacks and Latinos are far more likely than whites to be sentenced to death, and murder defendants disproportionately face capital charges if their alleged victim was white . And they are asking the state Supreme Court to remove the death penalty from the law books.

“The parties agree that persistent and pervasive racial disparities infect California’s death penalty system,” attorneys from the public defender’s office, the American Civil Liberties Union, the NAACP and other advocates said in a lawsuit Tuesday filed directly with the state’s high court.

The “parties” include the nominal state defendant in the suit, Attorney General Rob Bonta, who opposes the death penalty and says, as quoted in the filing, that it has “a absurd impact on defendants of color, especially when the victim is white .” The suit then quotes Newsom, who has said studies show that “the race of the defendant and the race of the victim” may determine whether a defendant will be sentenced to death.

Newsom, in an unprecedented filing for a California governor, asked the state Supreme Court in 2021 to overturn the death sentence for a double murder in Los Angeles because California’s standard jury instructions do not require jurors to agree on reasons for imposing capital punishment.

The court rejected Newsom’s argument and unanimously upheld the death sentence in that case, but one justice, Goodwin Liu, said in a separate opinion that the state’s death penalty law was constitutionally questionable and should be reconsidered in a future case.

The suit was criticized Tuesday by a death penalty supporter, Kent Scheidegger, sponsor of a voter-approved 2016 ballot measure that sought to speed up executions in California. Scheidegger also wrote a law review article in 2012 denying claims of racism in the application of the death penalty.

The problem with studies like those cited in the lawsuit, Scheidegger said, is that “they can be manipulated to produce just about any result the researcher wants… The only legitimate way to abolish the death penalty in this state is to put it on the ballot and convince the people.”

The state’s high court first overturned California’s death penalty law in 1972, ruling that it violated the state Constitution’s prohibition of “cruel or unusual punishment” — a ruling that spared the life of cult leader Charles Manson, among others. Death penalty supporters quickly qualified an initiative to restore capital punishment that was approved that failed by 67% of the voters.

Meanwhile, the U.S. Supreme Court, also in 1972, declared Georgia’s broad death penalty law unconstitutional because it gave jurors too much leeway in deciding which crimes should be punished by death, a ruling that also put California’s law on hold.

After the court upheld a narrower law that applied to specific categories of murders, California’s Legislature passed a new death penalty law in 1977, overriding Gov. Jerry Brown’s veto, and the voters broadened the law in a 1978 initiative. While polls have shown declining support for capital punishment in the state, initiatives seeking to repeat the death penalty were defeated by 4% in 2012 and 6% in 2016.

After the state’s most recent execution in 2006, a federal judge found problems in lethal injection procedures and staff training, and ordered a halt until the flaws were corrected. Nothing has changed since then, and Newsom ordered San Quentin’s Death Row dismantled when he imposed his moratorium after taking office in 2019. Its inmates are being transferred to other maximum-security prisons.

The governor has not sought clemency for any condemned prisoners, however, and his successor could seek to resume executions unless the law is repealed, by either the voters or the courts. So far, though, the declared candidates for governor in 2026 oppose the death penalty and have said they’d keep the moratorium in place.

Constitutional challenges to state laws generally face long odds. But if the state Supreme Court decided to grant review of Tuesday’s lawsuit and then agreed with its argument, such a ruling might be harder to overturn than its predecessor in 1972.