Will a state supreme court challenge end California’s ‘racist’ record-setting death row for good?

California has more people on death row than any other state in the country — and a governor who opposes capital punishment. A new audacious legal challenge to the death penalty in the state supreme court is seeking to finally end executions forever, Josh Marcus reports

Shujaa Graham, a death row exoneree (above left), is part of a coalition challenging California’s capital punishment law at the state supreme court (Getty)

When he was on death row for a murder he didn’t commit, a lot went through Shujaa Graham’s head.

Sometimes, he thought about ways to keep his mind and body sharp: push-ups, sit-ups, books from the prison library. Graham, who grew up in a family of share-croppers on a plantation in Louisiana, was first sent to prison at age 18 for a $35 robbery, for which he was sentenced to life.

He learned to read and write on the inside and became a dedicated activist, advocating for better conditions, protesting violence from prison staffers, and working with the Black Panthers. It was this activism, he believes, that led to him being wrongfully convicted for the 1973 murder of a prison guard and sentenced to death.

Sometimes during his six years on California’s death row, he drifted into despair. Not feeling suicidal exactly, but submerged in a pain so deep that he began to feel indifferent about the prospect of falling asleep and never waking up.

More than anything though, Graham, would dream about getting out and fighting the racism he saw in the prison system and capital punishment process.

“I dreamt that one day if I ever got out, I would do what I’m doing right now, and I would die doing it,” he said in an interview with The Independent from his home in Maryland.

Sister Helen Prejean, author of the book ''Dead Man Walking,'' hugs Shujaa Graham, who spent six years on San Quentin's death row before being exonerated, following an ACLU press conference in San Fransisco, CA., on Sunday, Dec. 11, 2005 (Alamy Stock Photo)

Eventually, after the California Supreme Court found that prosecutors had systematically excluded African-American jurors over the course of Graham’s multiple trials, the activist was exonerated and released in 1981.

Now, as part of the exoneree organization Witness to Innocence, he has joined a group of civil rights organizations launching a campaign in the state that once prepared to execute him.

Earlier this month, the coalition filed an ambitious petition to the state supreme court: they argued that California, a state known for its progressive values, was presiding over a death penalty system shown statistically to disproportionately target minorities for decades, a reality so fundamentally and obviously racist that it violated state constitutional guarantees to equal protection under the law.

The coalition argues the appeals court should bar California officials from pursuing or carrying out any death sentences for the foreseeable future. If successful, it would be a seismic change: California has quietly maintained the largest death row in the nation for years.

“Not a day goes by that I don’t think about what happened to me,” said Graham. “That’s why I continue to fight today.”

The recently-filed legal brief, from groups including the Legal Defense Fund, the American Civil Liberties Union, LatinoJustice, the Office of the State Public Defender, and others, is believed to be the first such challenge to the death penalty in state history.

That unprecedented challenge is required to root out the “persistent” racism in the way the state uses its capital punishment law, according to Patricia Okonta, an attorney at the Legal Defense Fund.

“After reviewing those studies and seeing really how pervasive it is, and how much the statue is infected with racial bias, the urgency was undeniable,” she said.

The action names California Attorney General Rob Bonta as its defendant, who has himself called the death penalty “inhumane” and accused it of having “long had a disparate impact on defendants of colour.”

California Attorney General Rob Bonta fields questions during a press conference on Aug. 28, 2023 (Associated Press)

“We are reviewing the petition and will be filing our response by the court’s May 6th deadline,” his office said in a statement to The Independent.

In California, Black defendants can be nearly nine times more likely than all others to get a death sentence, while Latinos are more than six times as likely. Regardless of the race of the suspect, they are up to 8.8 times as likely to be sentenced to death if one of their victims is white. California also sends a higher percentage of its young people of colour to death row than any other state.

The legal filing also alleges other issues with the process, like a lack of uniform criteria guiding prosecutors on when to seek the death penalty, leaving wide room for personal discretion, and the “death qualification” process, whereby potential jurors who oppose capital punishment are struck from capital juries. As a result, the groups argue, the process “systematically ‘whitewashes’ the capital eligible pool” because Black people tend to oppose capital punishment more than their white peers.

The problems are too pervasive, and the appeals process too slow, for legal challenges in individual cases to suffice anymore, the coalition argues. For example, the supreme court challenge calls the state habeas process, where death row prisoners can challenge issues outside the original trial record,  often little more than “a legal fiction” for those behind bars.

A robust body of history and scholarship shows the death penalty’s historical links to racism, lynching, and extra-judicial violence, especially in the US South. And indeed, the seven states that have carried out the most executions in modern US history — Texas, Oklahoma, Virginia, Florida, Missouri, Georgia, and Alabama — among the few states to continue actively executing people in recent years — are largely states of the former Confederacy.

A correctional officer walks up a main entryway at San Quentin State Prison in San Quentin, California (Associated Press)

What’s less remarked upon, however, is that California is a part of this conversation, too.

“California has substantially more individuals on death row than any other state in the country,” Ms Okonta said.

Currently the state’s death row has roughly 640 people waiting for executions, more than double the next largest death row, in Florida, which had 286 people as of early 2024.

The hundreds of people on death row in California exist in a strange political suspended animation, with the Golden State unable to commit to either permanently ending or unabashedly using the death penalty.

In 2019, during his first term in office, Governor Gavin Newsom issued an executive order putting a moratorium on the death penalty and shutting down the state’s death chamber at San Quentin State Prison. His reasoning sounded not unlike the civil rights groups currently challenging his attorney general in the state supreme court.

Gov. Gavin Newsom announcing a moratorium on the death penalty on March 13, 2019 in Sacramento, California. (Getty Images)

“Our death penalty system has been, by all measures, a failure,” Governor Newsom said at the time. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent.”

The governor’s office also noted the staggering cost of maintaining this system: since 1978, the state had spent $5bn on a death penalty system that executed 13 people.

The governor has continued moving the state to a post-execution paradigm, even while its death penalty system continues to exist.

Since 2020, the state prison regulator has been piloting a programme transfering death row inmates to the general prison population. Ironically, the move was in part a response to a 2016 voter mandate, Proposition 66, which sought to drastically speed up the death sentence process, but also required death row inmates to work in prison to pay restitution to their victims.

The 20 women on California’s death row have all been transferred out of the state’s female death row at Central California Women’s Facility. In March of this year, the state announced plans to transfer the remaining 457 condemned men out of San Quentin. Newsom plans to transform the infamous prison overlooking San Francisco Bay into a Scandinavian-style correctional facility with a focus on rehabilitation, education, and job training.

In this photo provided by the California Department of Corrections and Rehabilitation a gurney is removed from the death penalty chamber at San Quentin State Prison, Wednesday, March 13, 2019, in San Quentin, Calif. (AP)

At the same time, the governor’s moratorium hasn’t stopped prosecutors from continuing to seek new death sentences.

​​Since the governor officially suspended executions in 2019, 20 people have received death sentences, 80 per cent of them people of colour, according to the complaint with the state supreme court.

The Democrats running to eventually replace Newsom in 2027 all say they oppose capital punishment and wouldn’t approve further executions, all but ensuring that California won’t see these new death sentences carried out in the near future.

And AG Bonta, thought to be an eventual candidate for governor, has pushed for even further action.

“The Attorney General personally believes that the death penalty is deeply flawed and immoral — and that it’s wrong for California,” his office recently told The San Francisco Chronicle. “The Attorney General applauds the Governor for his moratorium on executions but there is more work to be done.”

So why, with the political stars seemingly aligned over ending the death penalty, has execution remained in California? Voters, it turns out, aren’t as sold as the Democratic political class on the idea of ending capital punishment.

Most recently, voters shot down ballot measures in 2012 and 2016 to abolish the death penalty in the state and replace it with life sentences without parole. Some prosecutors still want the punishment too, going so far as to appeal, ultimately unsuccessfully, to federal court to defend their ability to use it even after Newsom signed his moratorium.

The divisions over the death penalty in California mirror the larger twilight zone of capital punishment across the country. A slim majority of states, 27, still retain the death penalty, though only five states executed people in 2023, according to the Death Penalty Information Center.

Death penalty appeals in individual cases can last decades, and capital punishment regimes across the country have faced persistent issues accessing and using lethal injection drugs, which many mainstream pharmaceutical suppliers will no longer provide to the prison system. Many states have temporarily paused their capital punishment systems, often in response to botched executions, or to resorted to novel methods like nitrogen gas, which the UN has likened to “torture.”

Public opinion polls reflect a similar ambivalence over the punishment. By the end of 2023, a slim majority, 53 per cent, said they support the death penalty for those convicted of murder, while a small majority also said they believe the death penalty is applied unfairly in America, according to Gallup.

The White House has also straddled this line. President Joe Biden campaigned on passing a law to eliminate the federal death penalty, and is the first US president to openly oppose capital punishment. While his Justice Department under Attorney General Merrick Garland has temporarily halted federal executions, the DoJ has continued to seek or defend death sentences in high-profile cases like the mass shootings in Pittsburgh, Buffalo, and Charleston.

A Trump re-election, meanwhile, would likely mean a dramatic change. Trump presided over a massive federal execution spree in office. Despite signing 2018’s First Step Act, which shortened certain sentences and sought to eliminate racial disparities in drug sentences, the former president has also called for strengthening the death penalty and using it against those charged with drug crimes.

The future of the death penalty, in other words, is on uncertain ground.

For his part, Graham, the California exoneree, now has another component of his dream.

Activist Shujaa Graham, who spent 6 years on death row in California before being exonerated (Shujaa Graham)

His initial hope to get off death row and back to freedom came true. He went and lived a whole life, got married, had three children, started his own landscaping business, and appreciated things he thought he might never see again, like sunrises and sunsets.

Graham, 73, said he feels he’s “on the other side of the hill” in his own life, but he hopes to live long enough that capital punishment is a thing of the past, as it is in most other Western democracies.

“If I can just live for a day when someone walks up to me and says, ‘What was capital punishment? What was racism?’, and I say, ‘It’s a thing of the past.’ That’s what I fight for,” he said.

The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.