Office of the State Public Defender v. Bonta is on the list of matters scheduled for consideration at tomorrow’s Supreme Court conference. That’s the original writ petition attacking California’s death penalty system based on what it claims is “[e]xtensive empirical evidence demonstrat[ing] that [the system] is administered in a racially discriminatory manner and violates the equal protection provisions of the state Constitution.” (See here.)
This will be the fifth conference at which the justices discuss what to do with the writ petition. (See here, here, here, and here.) The prior four yielded no rulings, but the court at the last one did order supplemental preliminary briefing. Those briefs were filed last December.
Any decision other than a summary denial would be a big deal, suggesting that the court is at odds with U.S. Supreme Court precedent. In McCleskey v. Kemp (1987) 481 U.S. 279, a 5-4 Court rejected a broad, statistics-based equal protection argument similar to the pending writ petition, opting instead for determinations of constitutional propriety “on a case-by-case basis.” (Id. at p. 319.) If California’s Supreme Court doesn’t find McCleskey dispositive — say, opting to hear the case itself or ordering the case to be decided first by a superior court judge or special master (retired Chief Justice Tani Cantil-Sakauye would be a great choice for a special master), or even saying a denial is without prejudice to refiling the petition in a lower court — it will be implying that statistical evidence of racial bias in the capital punishment scheme as a whole is relevant under the state constitution even if not under the federal constitution.
We’ve suggested there might be a separate statement in the works and possibly also a response to a separate statement. (See here and here.) That remains a plausible theory why there’s been no ruling in the more than 10 months since the petition’s filing.
