November 17, 2020

California Governor Newsom and Six Prosecutors File Historic Amicus Briefs Highlighting Arbitrary Application of Death Penalty

By Annika Russell, DPRP Intern
California Governor Gavin Newsom submitted a 175-page amicus brief in People v. McDaniel, arguing that the state death penalty is arbitrarily imposed.

California Governor Gavin Newsom submitted a 175-page amicus brief in People v. McDaniel, arguing that the state death penalty is arbitrarily imposed.

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.

The governor’s brief argues that capital cases should require racially balanced juries and unanimous penalty verdicts.

The governor’s brief argues that capital cases should require racially balanced juries and unanimous penalty verdicts.

“California’s capital punishment scheme is now, and always has been, infected by racism,” the brief states. “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.”

Section II of the brief argues for jury decisions in the penalty phase of a capital trial, such as whether individual aggravating circumstance have been proven and whether aggravating circumstances outweigh mitigating circumstances, to be subject to the unanimity and reasonable doubt standards that generally apply to jury verdicts. The brief asserts that this change is necessary to reduce racial discrimination and arbitrariness in capital sentencing.

The district attorneys’ brief was similarly historic in that it was the first time California prosecutors have filed a court brief arguing that the state’s death penalty is arbitrarily imposed. The Prosecutors Alliance of California, a newly created association of reform-minded prosecutors, helped identify and assemble the six prosecutors who submitted this brief. Written by Steven L. Mayer of the law firm Arnold & Porter Kaye Scholer LLP., the brief highlighted all of the 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” that ultimately determine which defendants are sentenced to death.

Mirroring the major points in Governor Newsom’s brief, the district attorneys’ brief condemned the disproportionate use of the death penalty against Black and Latinx Californians and favored jury unanimity and heightened burden of proof requirements in capital cases.

Christine Soto DeBerry, director of the Prosecutors Alliance of California, asserted that this brief is part of a larger wave of recognition among prosecutors that the use of the death penalty is unjust, racially biased, and should be called into question. Reform-minded prosecutors made some inroads nationally in the November 2020 general election, but the extent of the impact caused by unseating prosecutors in several of the most prolific death-sentencing counties in the United States remains to be seen.

Former San Francisco District Attorney George Gascón, who won the most high-profile district attorney race in Los Angeles County, said, “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. 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.”