Is California’s death penalty ‘racially discriminatory?’ Why civil rights groups say so

California criminal justice reform organizations are challenging the state’s use of the death penalty, saying it disproportionately affects Black and brown people and is unconstitutional.

The ACLU, the Office of the State Public Defender and other legal groups on Tuesday filed a petition with the Supreme Court of California on behalf of the Ella Baker Center for Human Rights, Witness to Innocence and a handful of civil rights organizations.

The lawsuit says California’s death penalty violates the state constitution’s equal protection guarantees because courts and prosecutors apply it in a racially-biased way, according to a news release from the groups.

Lisa Romo of the Office of the State Public Defender said her organization is filing the suit now due to an “accumulation of data” and new studies showing the death penalty is applied disproportionately to victims of color and is used more frequently in cases involving white victims.

“We’re in a position where, because of the dysfunction of the death penalty, there’s just no way to get this in front of the California Supreme Court in an individual case,” Romo said.

Her group and the others involved in the lawsuit hope to convince the justices that California’s death penalty “ends up in these extreme racial disparities and the court should therefore declare the statutes that we have on the books right now to be unconstitutional.”

This would mean convictions resulting in death sentences under the state’s current capital punishment scheme could be vacated, Romo said. The court could also choose not to allow future death sentences “under this particular statutory system,” she said.

Voters or lawmakers could then change California’s capital punishment system to bring it in line with the court’s ruling, Romo said.

California capital punishment

Gov. Gavin Newsom in 2019 signed an executive order placing a moratorium on state executions, saying the death penalty is “ineffective, irreversible and immoral.” Even before Newsom’s order, California had not executed any condemned inmates since 2006, due to legal challenges over the state’s mode of execution.

About 34% of California’s more than 600 condemned inmates are Black, about 32% are white and about 26% are Mexican or Hispanic, according to March 8 data from the California Department of Corrections and Rehabilitation. Only about 5% of all Californians are Black, according to 2022 U.S. Census Bureau data.

California is one of 27 states that still have a death penalty, according to 2023 data from the Death Penalty Information Center. Twenty-three states do not use capital punishment.

Californians in 2016 voted down a ballot measure that would have ended the state’s death penalty, with 53% against repealing it and nearly 47% in favor.

In spite of the execution moratorium, courts have continued to sentence California prisoners to death. From 2019 to 2024, CDCR added 16 condemned inmates. When Newsom leaves office, executions could resume unless a future governor pauses them again.

The legal challenge comes as the state begins to dismantle its death rows for men at San Quentin State Prison and for women at the Central California Women’s Facility in Chowchilla.

A different 2016 state ballot measure, Proposition 66, allows condemned inmates to be housed at any state prison and requires them to work and pay restitution money to victims, among other provisions.

By summer 2024, CDCR plans to rehouse all male death row inmates in general population housing at other prisons, as San Quentin does not have the required electrified fence.

This plan also fits with Newsom’s proposal to refashion San Quentin from a death row hub into a model rehabilitation center by 2025.

Women on death row at Chowchilla have been transferred to general population housing.