Issue 25: Why Is “death different”? A Tale Of Two Briefs From California’s Attorney General

May 10, 2024 By Kyle C. Barry

Vacancies & Elections: 

  • Minnesota Governor Tim Walz named two former public defenders to the state supreme court: “Court of Appeals Judge Theodora Gaïtas and Stearns County Chief Judge Sarah Hennesy will fill the seats held by retiring Justices Margaret Chutich and G. Barry Anderson, respectively. Hennesy will take her seat May 13, the Monday after Anderson steps down. Gaïtas will go on the bench Aug. 1, a day after Chutich departs.” [StarTribune] The appointments push back on a longstanding national trend: Among the nation’s nearly 350 state supreme court justices, prosecutors outnumber public defenders 4 to 1. [Behind The Bench

Why Is “death different”? A Tale Of Two Briefs From California’s Attorney General

The U.S. Supreme Court insists that “death is different,” a distinction used to raise constitutional scrutiny in capital cases, and to ban, for example, mandatory death sentences and executing people with intellectual disabilities. But the principle has also been a backstop, an assurance to the “tough on crime” crowd that the Court will not go further, will not impose too much justice and start enforcing rights against massive prison terms and other forms of state-imposed misery, including torture. “In noncapital cases,” Prof. Rachel Barkow wrote, “the Court has done virtually nothing to ensure that the sentence is appropriate.” 

How entrenched is this concept? Consider Attorney General Rob Bonta’s filings in two recent cases before the California Supreme Court. 

Last month, the NAACP Legal Defense Fund and others challenged California’s death penalty based on the “persistent and pervasive racial disparities [that] infect [the state’s] death penalty system.” Bonta has previously acknowledged such disparities, and his initial response to the suit—which was filed directly in the state supreme court—agreed both that “racial discrimination in the administration of our criminal justice system is intolerable” and that the lawsuit’s allegations, based on empirical studies, “are profoundly disturbing.” Rather than oppose the suit, Bonta has rightly bolstered its credibility and urgency. 

But that wasn’t his approach when young adults serving life without the possibility of parole—a wildly disproportionate number of whom are Black—challenged their exclusion from “youth offender parole hearings.” 

In 2017, California changed its parole eligibility rules to include anyone under age 26 as a “youthful offender,” entitling emerging adults ages 18 to 25 to parole hearings that would consider both their youth and rehabilitation in prison. But there was an exception: people sentenced to life without the possibility of parole were ineligible; despite their youth, they remained consigned to die in prison. 

This exclusion bears no relation to culpability or public safety—young people sentenced to life with the chance of parole, and who benefit from the reform, include some convicted of first degree murder. Instead, as California ACLU affiliates argued, the exclusion so clearly embodies decades of racist policies that it reveals “an intent to trade on fear and animus of young men of color in exchange for political advantage.” About 86% of the 18 to 25 year olds serving life without parole in California are people of color—a disparity driven in part by prosecutors’ discretion to charge “special circumstances” in order to secure the most severe sentence. For example, “despite making up just 5% of the population, Black people comprise 43% of those sentenced under the felony-murder special circumstance,” according to the California Prosecutors Alliance

How did Bonta and his office respond to these claims? Despite the data showing wide racial disparities, and despite agreeing that the studies cited here “implicate the same considerations” as those in the death penalty challenge, he denied that the exclusion is race-based and said that the legislature deserved traditional deference in “defining crimes and specifying punishment.” In March, his argument prevailed in a divided state supreme court opinion issued over dissents from Justices Goodwin Liu and Kelli Evans, with Evans lamenting that the LWOP “exclusion bears the taint of racial prejudice and perpetuates extreme racial disparities plaguing our juvenile and criminal justice systems.” 

Faced with two challenges to extreme criminal punishments based on overwhelming racial disparities, California’s attorney general responded in two very different ways. The difference? “Death is a different kind of punishment from any other, both in terms of severity and finality,” Bonta wrote. That is true in some sense, of course. But it does not diminish the finality or the severity of life without the possibility of parole, and it cannot justify curtailing the constitutional rights—including the right to equal protection—of people who, instead of execution, are sentenced to death by incarceration. Replacing the death penalty with death in prison is not true progress.

Texas High Court Overturns Conviction Because Prosecutors Used Rap Lyrics As Evidence

The Texas Court of Criminal Appeals—a court loaded with former prosecutors that recently upheld a death sentence based on admittedly false evidence—ruled this week that admitting rap lyrics or videos that depict guns and drugs in criminal trials is highly prejudicial, in part because “by no means is rap the exclusive genre for glorification of criminal activity.” The court said that, “there is no question here that the introduction of Appellant’s rap videos encouraged the jury to convict him on the improper basis that he is a criminal generally or associates with criminals generally. This is because any song that glorifies criminality, regardless of genre, is inherently prejudicial.”

Statewide Prosecutor Association Can Work In Secret, New Jersey Supreme Court Rules

Prosecutors do not just enforce the law, they make it. Powerful associations of state and local prosecutors lobby lawmakers, engage in public advocacy campaigns, develop policy proposals, and file legal briefs, typically wielding their influence to advance a bigger and harsher criminal legal system. Nationwide, from 2015 through 2018, “state and local prosecutors were involved in more than 25% of all criminal-justice-related bills introduced in the 50 state legislatures,” according to a 2021 report by The Prosecutors and Politics Project at the UNC School of Law. “Prosecutors were nearly twice as likely to lobby in favor of a law that created a new crime or otherwise increased the scope of criminal law,” and when “prosecutors lobbied in favor of a bill, it was more than twice as likely to pass than an average bill.” 

In New Jersey, the ACLU argued that the County Prosecutors Association of New Jersey (CPANJ), which consists solely of the state’s 21 county prosecutors and receives only public funds, is a public agency that must comply with public records requests. The ACLU “asked for the records because of the powerful role the association plays in state criminal justice matters,” the New Jersey Monitor reported. CPANJ “meets monthly with the state Attorney General’s office to mull matters around the enforcement of the state’s crime laws,” and  it “has filed briefs weighing in [on] court cases with widespread impact, including the pandemic release of people in prisons and jails and the constitutionality of criminal statutes and searches and seizures.” 

Yet a divided New Jersey Supreme Court rejected the argument, allowing local prosecutors to continue their work in secret. Justices Rachel Wainer Apter and Michael Noriega dissented: “Public officials should not be permitted to hide behind organizational forms to utilize government resources to carry out government business in secrecy,” Wainer Apter wrote. And “county prosecutors’ offices should not be permitted to escape [public records laws] by labeling certain of their activities as occurring on behalf of CPANJ, rather than themselves.”

Scholarship Spotlight: Can State Constitutions End Wealth-Based Pretrial Detention?

new paper from Jerry Edwards, a staff attorney at the ACLU of Florida, argues that an original understanding of state constitutions should prohibit prosecutors and judges from jailing people by setting unaffordable bail amounts. The article discusses Florida’s explicit right to pretrial release, adopted in 1982, and also presents a more general due process argument that he argues should be made in nearly every state. Here’s the abstract:

Debates are currently raging across the nation over the wisdom of bail reform and decarceration. Wealth-based detention, in particular, has proven a controversial issue. Attempts to end the practice through federal litigation have run into major roadblocks before conservative appellate courts. This essay seeks to move the conversation in a new direction—looking to state constitutions for inspiration. Using Florida as a case study, this essay lays out an originalist case for why wealth-based detention violates Florida’s right to pretrial release and Floridians’ due process rights. The due process analysis is particularly relevant to advocates in other states, as the rationale underlying it is widely applicable. State constitutions can be a potent weapon in the fight against wealth-based detention. It is time to put them to use.