After conferencing for a sixth time on an 11-month-old writ petition that broadly attacks California’s death penalty system as racially discriminatory, the Supreme Court yesterday put the matter on hold pending a decision in a different hot-button constitutional case. The order leaves open the possibility that the court will not rule on the merits of either the writ petition (Office of the State Public Defender v. Bonta) or the other case, a matter concerning the validity of transgender rights legislation.
In the death penalty case, the court said, “Further action in this matter is deferred pending consideration and disposition of a related issue in Taking Offense v. State of California.” (Link added.) The Taking Offense action — one of the oldest pending non-capital cases on the court’s docket — challenges on First Amendment grounds a portion of California’s Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights that makes it “unlawful” to “[w]illfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.” More about the case here.
The “related issue” to which the court refers has nothing to do with the merits of Taking Offense or Office of the State Public Defender. Rather, it’s whether the plaintiff in the former and the petitioners in the latter have standing to have those merits adjudicated. The court raised the standing issue in both cases by making supplemental briefing requests. (Here and here.)
If you look at yesterday’s order a certain way, you could read it as the Supreme Court implying it is open to diverging from U.S. Supreme Court jurisprudence. The crux of the writ petition is that “[e]xtensive empirical evidence demonstrates that California’s capital punishment scheme is administered in a racially discriminatory manner and violates the equal protection provisions of the state Constitution.” However, the federal high court in McCleskey v. Kemp (1987) 481 U.S. 279 rejected a similar broad, statistics-based equal protection argument, opting instead for determinations of constitutional propriety “on a case-by-case basis.” (Id. at p. 319.)
If the California Supreme Court believes there is no difference between the California Constitution and the U.S. Constitution as interpreted in McCleskey, the court could have simply summarily denied the writ petition instead of keeping the petition alive. A later denial of the petition on lack-of-standing grounds might leave open the possibility of allowing an individual condemned prisoner to use the “[e]xtensive empirical evidence” of racial discrimination in attacking their death sentence.
Related:
Final preliminary briefs filed in anti-death-penalty writ proceeding
Heavyweight writ petition asks Supreme Court to declare death penalty unconstitutional
“California’s death penalty law deserves a vigorous defense”
AG asks for evidentiary hearing on anti-death penalty petition; 2 DAs want the petition denied
LA Times: “Of course the death penalty is racist. And it would be wrong even if it weren’t”
Two former justices urge Supreme Court to review anti-death penalty writ petition
