Gov. Gavin Newsom, who has already declared a moratorium on executions in California, went a step further Monday with an unprecedented court filing that asserted the state’s death penalty law is applied in a racist manner against African Americans.
Newsom’s state Supreme Court filing did not call for abolition of the death penalty — an option narrowly rejected by California’s voters in 2012 and 2016 — but argued that a jury imposing a death sentence should be required to find beyond a reasonable doubt that it was the proper punishment, rather than life in prison without parole.
The governor also said jurors should be allowed to consider factors favoring the death penalty, such as other violent acts by the defendant, only if they agreed unanimously that those events had occurred. Those standards would make it more difficult for prosecutors to persuade jurors to return a death sentence.
“California’s capital punishment system is now, and always has been, infected by racism,” Newsom said in a statement.
“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 brief was the first filed by a California governor challenging the state’s application of the death penalty and calling for restrictions. A similar brief was submitted in the same case Monday by four district attorneys — Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Jeffrey Rosen of Santa Clara County and Tori Verber Salazar of San Joaquin County — and two former district attorneys, George Gascón of San Francisco and Gil Garcetti of Los Angeles County.
The six have varying views on capital punishment. Rosen, for example, said he formerly supported it but changed his mind after the killing of George Floyd by Minneapolis police and his own visits to civil rights memorials. Becton has developed reservations but said her office is still considering possible capital cases. Garcetti prosecuted capital cases as district attorney but now favors repeal of the death penalty. Salazar will not seek death sentences.
Boudin, who like every San Francisco district attorney since 1995 has vowed not to seek the death penalty, said, “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way.”
Gascón, San Francisco’s chief prosecutor from 2011 to 2019, is running for district attorney in Los Angeles.
In their brief, the prosecutors said they wanted to “ensure that the death sentence is chosen (if at all) for only the worst offenders and offenses.”
The office of Los Angeles County District Attorney Jackie Lacey, which prosecuted the capital case that the court is now reviewing, declined to comment on the filings. Lacey is running for re-election against Gascón, and her county is among those that file the largest number of death penalty cases in California.
Newsom and his predecessor, Jerry Brown, have opposed the death penalty. But the four previous governors — Arnold Schwarzenegger, Gray Davis, Pete Wilson and George Deukmejian — supported it, and Deukmejian sponsored California’s 1977 death penalty law as a state senator.
Newsom issued an executive order in March 2019, his third month in office, suspending executions in California, which has not executed a prisoner since January 2006. He said at the time that the death penalty “is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
The state has 711 inmates on Death Row — more than one-third of them Black, Newsom said in his court filing. African Americans are also much more likely than others to be arrested and searched by police and to be the victims of police violence, the governor’s lawyers told the court. They said trial procedures skew jury selection by excluding opponents of the death penalty and allowing prosecutors to remove minority jurors as long as they deny racial motives for the removals.
The moratorium on executions has not stopped most county prosecutors from seeking death sentences and has not stopped Attorney General Xavier Becerra’s office from defending those sentences before the state’s high court.
Monday’s filings were submitted in the case of Donte McDaniel, sentenced to death for fatally shooting two people in Los Angeles in 2004 in what prosecutors described as murders related to gangs and drugs.
In preparing for a hearing in McDaniel’s case, the state Supreme Court asked lawyers whether the California law should be interpreted to require jurors to decide beyond a reasonable doubt — the same standard required for convictions — whether death was the proper punishment. The court also asked whether the law prohibits jurors from considering so-called aggravating factors, like a defendant’s past violent acts, unless they agree on those facts unanimously.
Newsom’s brief and the filing by the current and former prosecutors answered both questions affirmatively.
Requiring jurors to “unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict” are essential to preserving “the full protections of the jury right in capital sentencing,” said the governor’s lawyers, Dean Erwin Chemerinsky and Professor Elisabeth Semel of the UC Berkeley School of Law.
Bob Egelko is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @BobEgelko