State Attorney General Rob Bonta has asked the Supreme Court to appoint a special master to evaluate evidence accompanying an original writ petition filed in the Supreme Court a month ago (Office of the State Public Defender v. Bonta) that claims the State’s death penalty system, because it is “administered in a racially discriminatory manner,” violates the State Constitution’s equal protection provisions. Two district attorneys, on the other hand, want the court to summarily deny the petition.

The court asked the Attorney General to submit a preliminary opposition, but he instead filed what he titled a preliminary response. The evidence of racial discrimination, Bonta says, is “profoundly disturbing.” But because “petitioners’ claims rest on an extensive body of empirical research that was developed outside of any adversarial process,” Bonta suggests the court should “issue an order to show cause and then appoint a special master or referee to evaluate the studies, resolve any factual issues identified by the current parties (or other interested participants), and report back to the Court.”

We wrote about a similar option: “Another action option is for the court to issue an order to show cause, but send the petition to a superior court for a decision. The petition relies on ‘[e]xtensive empirical evidence’ to establish racial discrimination and the Supreme Court might conclude a trial court is the more appropriate forum for an evaluation of that evidence, at least in the first instance.”

The district attorneys raise both substantive and procedural objections to the writ petition.

Riverside County’s District Attorney criticizes the petition for not “identifying a single defendant sentenced to death or a single District Attorney’s Office as an interested party—let alone a real party in interest,” and also for seeking mandate “even though there are several avenues to litigate their claims, including motions, direct appeals, and petitions for writ of habeas corpus all of which may invoke the California Racial Justice Act.” On the merits, he claims the petition “asks this Court to ignore the democratic process and the rule of law and overrule the will of the People by fiat,” because the relief sought “is directly prohibited by article I, section 27 of the California Constitution and constitutes an impermissible collateral attack on judgments of death in violation of Penal Code section 1509.” (Links added.) The district attorney also asserts, “The petition relies on faulty, out-of-date analyses that ignore regional differences in demographics and fail to account for the circumstances of the killings and killers for whom capital punishment is sought.”

Claiming that “Petitioners suggest th[e] Court don a virtual crown,” the San Bernardino District Attorney, much like his Riverside counterpart, argues the petition needed to have district attorneys named as real parties in interest; naming the Attorney General as the respondent was insufficient. He says, “the only remedy would be to include every district attorney, every inmate, and every potentially impacted defendant in the litigation. Unless, of course, Petitioners’ wish for this Court to become an oversight committee is granted.” Also like the Riverside District Attorney, San Bernardino’s District Attorney cites the Racial Justice Act and Penal Code section 1509 as more appropriate methods for raising the petitioners’ claims.


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