On October 26, 2020, Governor Gavin Newsom became the first sitting governor in California history to file an amicus brief on the unfair and uneven application of the death penalty. In response to a rare request by the California Supreme Court for briefing about the constitutionality of California’s death penalty application, the 175-page brief was filed in People v. McDaniel, a case before the court on appeal that involves issues of racial bias in jury deliberation and sentencing decisions. The governor’s brief argues that capital cases should require racially balanced juries, a unanimous penalty verdict, and proof beyond a reasonable doubt for disputed aggravating evidence. In addition, a group of six current and former California district attorneys filed a 54-page amicus brief in the same case, arguing that California’s death penalty is arbitrarily imposed. The district attorneys (DAs) who signed the brief are: Contra Costa DA Diana Becton, San Francisco DA Chesa Boudin, Santa Clara DA Jeff Rosen, San Joaquin DA Tori Verber Salazar, former Los Angeles DA Gil Garcetti, and newly elected Los Angeles DA George Gascón.
This is the first time that Governor Newsom has submitted an amicus brief on any issue since his tenure as governor began in January 2019; however, the brief builds upon Governor Newsom’s longstanding opposition to the death penalty. After calling capital punishment “inconsistent with our bedrock values” in March 2019, Governor Newsom signed an executive order which instated a moratorium on the death penalty, closed the execution chamber at San Quentin State Prison, and granted a temporary reprieve to all 737 of the state’s death-sentenced prisoners. In September 2020, Governor Newsom signed major criminal justice reform bills into law, including AB 2542, which prohibits prosecutors from seeking, obtaining, or imposing a conviction or sentence on the basis of race, and AB 3070, which aims to eliminate discrimination in jury selection. A summary and analysis of these bills can be found in the Project’s Fall 2020 Newsletter here.
Governor Newsom’s brief, authored by Berkeley Law School Death Penalty Clinic Director Elisabeth Semel and Dean Erwin Chemerinsky, served as a statement of support for a death row prisoner’s claim that capital punishment as currently practiced in the state violates the California penal code and the state constitution. Section I of the amicus brief recounts the historical relationship between racism and the death penalty. It states, “Today’s inequities in the imposition of death sentences are the result of the nation’s and the state’s history of racial terror and subjugation.” This section further points to evidence of widespread racial discrimination at every stage of the criminal justice system, including jury selection, convictions, and sentencing.