October 26, 2020


Read the governor’s brief by clicking here.

Read the district attorneys’ brief by clicking here.

SAN FRANCISCO–Today, in response to a rare request by the California Supreme Court for briefing about the constitutionality of California’s death penalty as it is applied, Governor Gavin Newsom filed an amicus brief stating that California’s death penalty has been applied in a manner that is unfair and racially biased. In addition, a group of six current and former California district attorneys convened by the Prosecutors Alliance of California filed an amicus brief asserting that the state’s death penalty system has resulted in arbitrary sentences in violation of the constitution. The six district attorneys signing the brief include: Contra Costa County DA Diana Becton, San Francisco DA Chesa Boudin, former Los Angeles DA Gil Garcetti, former San Francisco DA and current candidate for Los Angeles DA George Gascon, Santa Clara County DA Jeffrey Rosen, and San Joaquin County DA Tori Verber Salazar.

“California’s capital punishment scheme is now, and always has been, infected by racism,” said Governor Gavin Newsom. “Since its inception, the American death penalty has been disproportionately applied, first, to enslaved Africans and African Americans, and, later to free Black people. With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”

The case is known as People v. McDaniel. The Court specifically asked to hear argument on whether the state’s constitution requires that a jury agree on the death penalty beyond a reasonable doubt and that the jury unanimously agree on the aggravating factors in death penalty cases.

This is the first time that Governor Gavin Newsom has submitted an amicus brief on any issue during his tenure as governor and the first time any sitting governor has submitted an amicus brief to the California Supreme Court asserting the death penalty is applied in an unfair and racially bias manner. The governor’s brief argues, “California’s capital punishment scheme is now, and always has been, infected by racism.  Governor Newson submits this brief because the life-and-death decisions in capital cases need the protections that would be provided by the requirements of unanimity and proof beyond a reasonable doubt in the jury’s verdict.”

The district attorneys’ brief notes that “they unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes…[and] the selection of defendants that receive the death penalty is influenced both by irrelevant factors, such as geography and whether the defendant is represented by a public defender or a court-appointed lawyer, and impermissible factors such as the race and ethnicity of the defendant and the victim.” The brief further states that “[t]he absence of procedural requirements such as a heightened burden of proof and jury unanimity amplify arbitrariness further violating the constitutional command that the death penalty be reserved for the worst offenses.”

Cristine Soto DeBerry, director of the newly formed Prosecutors Alliance of California, identified the prosecutors to submit the amicus. She noted that this is the first time in California history that a group of six current and former prosecutors have argued that the state’s death penalty is arbitrarily imposed. “There is a growing recognition among prosecutors that the way in which the death penalty is applied in California is unjust and that racial bias continues to be a very serious problem with regards to the race of the defendant, the race of the victims, and the racial composition of the juries,” she said. “This has prompted a number of district attorneys to question whether the death penalty should still be used at all.”

“I have long opposed the undeniably cruel and unjust practice of the death penalty. The death penalty’s application in California affronts the Constitution’s protections and principles,” said San Francisco District Attorney Chesa Boudin. “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way that imposes the death penalty disproportionately in cases where the victims were white or where the defendants were Black or Latinx.”

“The death penalty does not make us safer, there’s a serious risk of executing an innocent person, it costs about $300 million per execution, and it’s being arbitrarily applied in violation of the Constitution,” said former San Francisco District Attorney George Gascón. “With 22 of 23 individuals condemned to death in LA since 2012 having been people of color, the court need not look further than LA County for proof that the death penalty is applied arbitrarily.  Such disparate application is the hallmark of an unjust legal system, and I implore the California Supreme Court to end the arbitrary application of the death penalty.”

“Whether you agree or disagree with the death penalty we can all agree that it should not be applied in an arbitrary manner,” said Santa Clara County District Attorney Jeffrey Rosen.

“Each of us seeks a safe society in which our families can thrive,” said San Joaquin County District Attorney Tori Verber Salazar.  “We can achieve that righteous goal without using an archaic form of punishment that is riddled with errors. We often see the re-victimization of families through the lengthy and costly appeals process for a method that has been proven to not deter violent crimes from happening.”

The governor’s brief was written by Erwin Chemerinsky, Dean of UC Berkeley School of Law, and Elisabeth Semel, Professor of Law and Director of the UC Berkeley School of Law Death Penalty Clinic. The district attorneys’ brief was written by Steven L. Mayer of the law firm Arnold & Porter Kaye Scholer LLP.