BY CHESA BOUDIN, DIANA BECTON, AND GEORGE GASCÓN
SPECIAL TO THE SACRAMENTO BEE
MAY 29, 2021 | 6:00 AM
On June 2, the California Supreme Court is scheduled to hear oral argument in a case that raises serious questions about the constitutionality of how California’s death penalty has been applied. In the case People v. McDaniel, the court has asked whether a jury must unanimously agree on the aggravating factors and find that a death sentence is appropriate beyond a reasonable doubt.
As elected prosecutors in California, we believe that these bedrock procedural protections — that apply in all criminal trials — must also apply to the most consequential decision that juries are asked to undertake. The stakes for our legal system could not be higher.
California’s decades-long failure to impose adequate limits on who receives a death sentence has contributed to a bloated, racially biased and expensive system as well as the largest death row population in the country. Death penalty cases consume an inordinate amount of staff and financial resources at both the state and local level, expenses that go well beyond the cost of pursuing either a life or life without parole sentence. These are resources we simply can’t afford to waste, now more than ever.
By failing to narrow the number of cases eligible for the death penalty, our state has spent more than $4 billion pursuing executions over the last 43 years. Yet no executions have been carried out since 2006. Given Gov. Newsom’s moratorium on executions, none are likely to be carried out any time in the near future. It is worth noting that the state could immediately save upwards of $184 million per year by ending the death penalty.
We are also deeply troubled by persistent racial bias in the administration of capital punishment at all stages of the process. Black residents are disproportionately sentenced to death in this state (36% of individuals on death row are Black — six times their percentage in California’s population — and 67% of individuals on death row are people of color).
Moreover, the race of the victim continues to inappropriately influence who is condemned to die. One recent study of San Diego cases found that
prosecutors sought the death penalty far more frequently in cases involving white victims than in cases involving Black or Latino victims, with the most substantial disparities occurring in cases with Black defendants and white victims.
These problems are exacerbated by the failure to require juries to unanimously decide on aggravating factors in capital cases because it is much easier for a minority perspective to be ignored when decisions related to the appropriate penalty do not have to be made unanimously. Studies have shown that Black jurors are more likely to seriously consider mitigating evidence and weigh it against aggravating evidence.
There are many other reasons to harbor concerns about the fairness of the death penalty as it is currently applied, including the very real risk of wrongful conviction. There have been at least five individuals — all men of color — who were wrongly sentenced to death in California and were subsequently released, the most recent just three years ago. Even with the adoption of reforms aimed at reducing this risk and the creation of Conviction Integrity Units in many DA offices, including some of our own, we can never be sure that an innocent person won’t be executed.
A study published by the National Academy of Sciences in 2014 estimated that approximately 4.1% of the men and women currently on death row could be innocent. In California, that would mean approximately 30 people on death row are innocent. A wrongful conviction can be reversed, but an execution cannot.
By failing to ensure that minority viewpoints on juries are scrupulously respected, and by allowing death sentences where some jurors believe an execution to be inappropriate, California has created a glut of death penalty cases that end up being reversed at high rates on appeal. This long, complicated process can have the unintended impact of harming many victims’ families by subjecting them to years of protracted litigation and uncertainty.
In light of the California Supreme Court’s attention to this issue, we feel it is time to raise these concerns together. We hope that the Court takes a long, hard look at these issues and concludes that life-and-death decisions demand the most important protections our criminal jury system provides: unanimity and proof beyond a reasonable doubt.
Chesa Boudin is the elected District Attorney of San Francisco. Diana Becton is the elected District Attorney of Contra Costa County. George Gascón is the elected District Attorney of Los Angeles.