The State Public Defender’s office and several civil rights groups and individuals today filed an original writ petition in the Supreme Court — Office of the State Public Defender v. Bonta — claiming “[e]xtensive empirical evidence demonstrates that California’s capital punishment scheme is administered in a racially discriminatory manner and violates the equal protection provisions of the state Constitution.” They ask the court to declare the scheme to be unconstitutional as applied and to “bar[ ] the prosecution, imposition, or execution of sentences of death throughout the State of California.” (News release here.)

The petition summarizes its evidence this way: “Black defendants are up to 8.7 times more likely to be sentenced to death than all other defendants. Latino defendants are up to 6.2 times more likely to be sentenced to death than all other defendants. And defendants of all races are up to 8.8 times more likely to be condemned when at least one of the victims is White.” (Footnote omitted.)

In addition to the Public Defender, the parties as identified in the petition are Eva Paterson, a civil rights litigator and cofounder of the Equal Justice Society; LatinoJustice PRLDEF, a nonprofit civil rights organization that works to advance equity and justice for Latino communities; the Ella Baker Center for Human Rights, an organization that mobilizes Black, Brown, and low-income people in campaigns for racial and economic justice; and Witness to Innocence, an organization that works to empower exonerated death row survivors.

The petitioners are represented by prominent counsel — former U.S. Solicitor General Seth Waxman and three of his colleagues at WilmerHale; the American Civil Liberties Union of Northern California; the American Civil Liberties Union Capital Punishment Project; and the NAACP Legal Defense and Educational Fund.

California’s Constitution contains its own equal protection provision. (Article I, section 7(a).) But, separately, it also says that death penalty statutes in effect in 1972 “shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments . . . nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.” (Article I, section 27.)

The writ petition argues section 27 is not an impediment to the relief sought because the provision “merely precludes a judicial determination that capital punishment is unconstitutional per se—that is, that death is an impermissible form of punishment in the abstract” and because the petition doesn’t assert a per se claim, but “is instead based upon a robust evidentiary showing that California’s death penalty statutes as applied violate the state’s equal protection guarantee.”

The petition also addresses another obstacle, the U.S. Supreme Court’s rejection of a statistics-based equal protection argument in McCleskey v. Kemp (1987) 481 U.S. 279. It acknowledges that California’s Supreme Court “has sometimes characterized California’s equal protection guarantee as substantially equivalent” to the federal counterpart in the Fourteenth Amendment. But it says that the state guarantee is in fact a more expansive one, that the state high court “has the authority—indeed, the duty—to apply its own, broader equal protection jurisprudence,” and that “the United States Supreme Court’s construction of the federal equal protection clause does not govern.”

The respondent — California Attorney General Rob Bonta — has 10 days to submit an optional preliminary opposition to the petition. (Rule 8.487(a)(1).) If none is filed within that time, the court can, as it often does, issue a specific request for a response.

The court will at some point decide (there’s no time limit) whether to hear the petition on the merits or summarily deny it. If it’s the former, that would be huge news.

[Update: Bob Egelko has an in-depth report on the writ petition and the death penalty in California — “California’s death penalty is irreparably racist, lawsuit contends”]


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