If all goes according to plan, Kamala Harris will soon be the Democratic nominee for President of the United States. Since she became a national figure when she was elected in 2016 to the Senate from California, many people have parsed her record on criminal justice issues and found it to be mixed and inconsistent.
One place where Harris has been clear is in stating her moral qualms about capital punishment and identifying the various ways in which the administration of the death penalty violates our constitutional commitments. Twenty years ago, during her 2004 campaign to become San Francisco District Attorney, Harris promised that she would never seek the death penalty.
At the time, she labeled the death penalty system “a flawed system.” Harris explained, “With the advent of DNA, we know that people have been convicted and sentenced to death who later proved not to be guilty of the crime. That’s at the top of the list of my concerns,”
In 2019, as she was planning her first bid for the White House, she called state killing an “immoral practice.” Harris went on to say that even in her home state, “The data also shows us that the death penalty is far more likely to be carried out against people of color….”
Even in California? The bluest of blue states? Surely Harris must have gotten it wrong.
But that was not the case then, and it is not the case now. New research confirms the accuracy of what Harris said.
It gives added impetus to the need to abolish the death penalty in the nation’s most populous state and the state with this nation’s largest death row. And this is not the first time that racism has been documented in California’s death penalty system.
For example, a 2005 study published in the Santa Clara Law Review examined death sentencing in California in the years 1990-99. It found that “those suspected of killing non-Hispanic whites are more likely to be sentenced to death than other homicide suspects.”
That study found that “These differences persist even when we statistically control for levels of aggravation.”
It also documented “clear regional disparities in death sentencing, with counties that have a lower population density and a higher proportion of non-Hispanic whites in their populations to have the highest rates of death sentences.”
Fifteen years later, a study of San Diego County found that in cases where prosecutors charged an adult defendant with murder and obtained a homicide conviction, race/ethnicity was “a significant factor in whether a defendant is charged capitally and whether the death penalty is sought, with the most substantial disparities occurring in cases with black defendants and white victims.”
Also, in 2020, California Governor Gavin Newsom filed a brief in the case of Donte Lamont McDaniel, who was sentenced to death for murder in 2009. The governor’s brief did not mince words.
California’s process for imposing the death penalty, it said, “is now, and always has been, infected by racism.” It was the first time a sitting California governor filed a brief with the state Supreme Court “calling attention to the unfair and uneven application of the death penalty.”
Among the brief’s key arguments was that “Overall, White jurors ‘are much less receptive to mitigation’ than Black jurors in cases where the defendant is Black, and the victim is white.” Black jurors “are more likely than white jurors to ‘keep the sin separate from the sinner’ no matter what the race.”
Newsom’s brief argued that the death penalty in the United States is “rooted in the legacy of slavery, racial terror and subjugation,” and it has been “disproportionately applied, first, to enslaved Africans and African Americans, and, later, to free Black people.”
And, yes, that was true, the governor said, even in the Golden State.
Recognizing that no place in this country can escape the pervasive influence of race in capital sentencing, California passed the Racial Justice Act in 2020. Among its findings of fact, that law recognized that “Discrimination in our criminal justice system based on race, ethnicity, or national origin…has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole.”
It found that “Even though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms.” Existing precedent, the bill stated, “tolerates the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials.”
It observed that “There is growing awareness that no degree or amount of racial bias is tolerable in a fair and just criminal justice system, that racial bias is often insidious, and that purposeful discrimination is often masked, and racial animus disguised…. Examples of the racism that pervades the criminal justice system are too numerous to list.”
California’s Racial Justice Act sought “to eliminate racial bias from California’s criminal justice system because racism in any form or amount, at any stage of a criminal trial…[because it]…is a miscarriage of justice under Article VI of the California Constitution, and violates the laws and Constitution of the State of California.
The law stated that “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.”
But the Racial Justice Act has not solved California’s race problem.
In 2021, the Committee on Revision of the Penal Code, a seven-member board formed by the state legislature to propose criminal justice reforms recommended that capital punishment be abolished in the state. Among other things, the report cited “staggering racial disparities in who gets sentenced to death, with people of color making up 68% of those on death row in California.”
The newest study of race and capital punishment in California was published in June in the Journal of Empirical Legal Studies. It “examined 27,000 California murder and manslaughter cases between 1978 and 2002.”
Like the other studies of California’s death penalty, it found powerful evidence of racism.
“Black and Latin[a/o] defendants and all defendants convicted of killing at least one white victim,” the study concluded, “are substantially more likely to be sentenced to death.” It also found that “prosecutors were significantly more likely to seek death against defendants who kill white victims [and] juries were significantly more likely to sentence those defendants to death.”
A lawsuit filed in April gives the California Supreme Court an opportunity to join Kamala Harris and the research cited above in recognizing the pervasive role of race in the state’s death penalty system. The court should declare the state’s racially discriminatory death penalty system unconstitutional and end California’s death penalty once and for all.