California courts must address the racial bias in death penalty sentencing

Every person sentenced to death in California over the last five years has been Black or Latino. The last white person sentenced to death was in mid-2021.

That fact is part of a pattern of racial bias in our state’s death penalty system. It’s time courts confront this persistent, deadly racial bias. 

Two years ago, the Office of the State Public Defender and several civil rights organizations took the unusual step of filing what amounts to a civil lawsuit against the state’s death penalty. They filed it directly with the California Supreme Court after lower courts, for decades, failed to address racial bias claims. 

Their petition draws on more than a dozen empirical studies showing California’s capital punishment is administered in a discriminatory manner which violates equal protection guarantees in the state Constitution.

In May, the California Supreme Court ruled that their challenge could move forward in Sacramento Superior Court.

The data presented in the case comes from 40 years of research. It shows that Black defendants are up to eight times more likely — and Latino defendants are up to six times more likely — to be sentenced to death than other defendants. Death sentences are also more likely to be imposed if the victims are white than if they are Black or Latino.

Racial bias also leads to greater risk of wrongful conviction and execution: Since 1981, eight Californians have been exonerated and released from death row — all were men of color.

Prejudice was one reason Gov. Gavin Newsom imposed a moratorium on executions. His 2019 executive order stated, “Death sentences are unevenly and unfairly applied to people of color.” 

Of those sentenced to die since the moratorium was imposed, 25 of the 29 are people of color.

A moratorium by the governor can be overturned by a successor, but a clear ruling by the courts can determine whether the profound racial bias in the administration of the death penalty makes it unconstitutional.

For decades, individuals like Troy Ashmus and his legal team tried to persuade courts to act but were stymied by utter dysfunction. Ashmus was convicted and sentenced to death in 1986. He filed a federal habeas petition asserting an 8th Amendment challenge to California’s death penalty law in 1998, presenting extensive evidence of racial bias. 

Years of procedural delays followed. Nearly 22 years later, in 2020, Ashmus finally went before a superior court judge. But before the judge could rule, Ashmus died of COVID-19. His claim was dismissed without a ruling.   

Ashmus’ case was a rarity. He had a legal team, with funding to challenge his death sentence. 

Of the 550 people currently sentenced to death in California, 70% don’t have an attorney or funding for their appeals or petitions. Even if an individual defendant manages to raise state constitutional claims in their capital case, resolution by the California Supreme Court would likely take more than a decade. Chronic underfunding and an aging appellate bar have produced a shortage of attorneys qualified to handle capital appeals, so it often takes years for appellate counsel to be appointed. 

And with more than 130 fully briefed capital appeals already pending, and dozens more in earlier stages, the backlog of death penalty cases at the Supreme Court alone guarantees extraordinary delays.

Not only is this system dysfunctional, it’s also costly. Since 1978, California has spent $6 billion on it and has executed 13 people. The last execution was carried out Jan. 17, 2006. 

Grave constitutional questions raised in this civil rights petition cannot wait decades to be answered. Delay in this context is not neutral. While the petition remains pending, the stark evidence of racial disparities continues to accumulate.