Before Shujaa Graham's murder conviction was overturned by the California Supreme Court in 1979 upon finding that prosecutors systematically — and unconstitutionally — excluded Black individuals from serving on his jury, he lived on California's death row for three excruciatingly long years.

"I want you to think about the worst day you've ever had in your life. And now, the unborn tomorrow promises you to be worse. That's death row," Graham told Law360.

Five decades later, at the age of 73, Graham and other death row exonerees with the anti-death penalty organization Witness to Innocence are part of a broad coalition urging the California Supreme Court to permanently end the death penalty in the Golden State.

In April, Witness to Innocence and a coalition of civil rights groups filed an extraordinary writ petition to the justices arguing that racially discriminatory procedures in the administration of California's death penalty system continue to disproportionately harm people of color.

The petition is a first-of-its-kind original jurisdiction challenge arguing that the state's death penalty runs afoul of equal protection guarantees in California's state constitution.

According to empirical evidence from 15 studies cited in the petition, Black and Latinx individuals in California are more likely to be sentenced to death than similarly situated white people, particularly if the victim is white. California's death-sentencing procedures "invite racial bias" via prosecutorial discretion, peremptory challenges during jury selection and "dehumanizing" penalty phase arguments — such as likening defendants to predatory animals — the petitioners said.

Home to the most populous death row in the U.S., California has 638 inmates who are currently sentenced to die, most of whom are people of color.

While Gov. Gavin Newsom ordered a moratorium on the death penalty in 2019 and has dismantled the execution chamber at San Quentin State Prison, California prosecutors continue to seek and obtain death sentences, and the moratorium could be rolled back by a future governor.

If the California Supreme Court agrees to hear the case and finds the death penalty unconstitutional, those individuals would see their death sentences commuted and would be resentenced. The justices could, however, refuse to hear the case entirely and say the issue needs to come up from a lower court — either as a direct challenge or as a claim in an individual defendant's death penalty case.

Among those challenging the state's application of the death penalty is California's Office of the State Public Defender — a legislatively created office that represents indigent criminal defendants on appeal — which is also providing legal representation for petitioners alongside attorneys at WilmerHale, the NAACP Legal Defense Fund, the American Civil Liberties Union of Northern California and the ACLU Capital Punishment Project.

State Public Defender Galit Lipa said the petition has been in the works since before her appointment in January 2024, but that she is nonetheless "determined to continue supporting this effort given the data that persistently shows that the death penalty is disproportionately used on people of color in California."

"Charging and sentencing decisions that are used more for some people based on their race understandably contribute to distrust in our legal system and have no place in our country," Lipa told Law360.

While most of the 21 U.S. states that have abolished the death penalty have done so legislatively, some have done so via state high court decisions, such as Delaware in 2016 and Washington state in 2018.

In Delaware, the state's Supreme Court found that state law unconstitutionally vested judges with the power to sentence defendants to death, and that such decisions should be left instead to juries.

In Washington, meanwhile, the state's high court accepted arguments similar to those being leveled in California as it agreed that the death penalty was "imposed in an arbitrary and racially biased manner" that violated state constitutional protections against cruel and unusual punishment.

Prosecutors' Positions

California Attorney General Rob Bonta, the defendant in the case, agreed in a preliminary response to the petition earlier this month that the statistical findings cited by the petitioners were "profoundly disturbing," and that he has "no doubt that petitioners' arguments are entitled to careful consideration by a judicial tribunal."

Bonta, who has frequently lamented the racial disparities in the administration of the death penalty in California, told the justices he believes a factual record should be developed to assist the California Supreme Court in assessing the merit of petitioners' claim.

"If this court is inclined to exercise its original jurisdiction to consider petitioners' claim instead of directing petitioners to proceed in superior court, the attorney general respectfully requests that the court appoint a special master or referee to assess the empirical studies invoked by petitioners and resolve evidentiary issues," Bonta wrote.

But Bonta also raised concerns with the petitioners' repeated reference to the Washington Supreme Court's decision in 2018 striking down the death penalty in that state.

Bonta said the theory put forth in Washington "is a fundamentally different constitutional theory from the one advanced by petitioners here," since the California petitioners don't claim that the death penalty constitutes cruel or unusual punishment. But overall, Bonta appears to be firmly in the petitioners' corner.

In addition, a small group of progressively minded prosecutors, as well as retired California judges Peter Espinoza, Joseph Grodin, J. Anthony Kline and Carlos Moreno, have all put their names on amicus briefs urging the court to grant review.

But prosecutors in at least two of California's politically conservative counties want to see the petition thrown out.

San Bernardino County District Attorney Jason Anderson and Riverside County District Attorney Michael A. Hestrin filed opposition briefs as "real parties in interest."

Situated between Los Angeles and San Diego, Riverside County has frequently been cited as an example — including in the petition — of a California jurisdiction with some of the most blatant racial disparities when it comes to capital sentencing. A 2021 study looking at Riverside County death sentences between 2006 and 2019 found, as summarized in the petition, that "Black people were 14 times, and Latinos almost 11 times, more likely than similarly situated white people to be sentenced to death."

But Hestrin argued that the petition is a "broadside attack" on the death penalty, is trying to subvert the will of California voters who rejected a 2016 ballot initiative that would have ended the death penalty and "relies on faulty, out-of-date analyses that ignore regional differences in demographics and fail to account for the circumstances of the killings and killers for whom capital punishment is sought."

Hestrin argued that the petition fails to identify any real parties in interest, when he believes the people of California, as well as death row inmates, the next of kin of their victims and defendants facing prosecution, also have skin in the game.

Furthermore, Hestrin said, California's Racial Justice Act already provides a mechanism by which a convicted person can get their conviction overturned or be resentenced upon proving their case was impacted by systemic racial bias.

A 'Sisyphean Task'

But the challengers say the Racial Justice Act is not a viable alternative vehicle to challenge the capital sentencing statutes' constitutionality, as applied.

The idea that California's judicial system and defense bar could handle the volume of work required to bring individualized Racial Justice Act claims on behalf of the hundreds of people sentenced to death in the state, most of whom don't have counsel, is "an absolute pipe dream," said Avi Frey, deputy director of the Criminal Justice Program at the ACLU of Northern California and co-counsel for the petitioners.

An attorney trying to bring a successful Racial Justice Act claim for a person on death row would face the "Sisyphean task" of showing statistical evidence of racial bias in charging and sentencing practices for that individual and at the county level, Frey told Law360.

To show that Black and brown individuals in a county were charged more severely than white individuals accused of committing similar crimes in that same county would require spending a massive amount of money and time to gather and analyze decades of court records, which are often not digitized.

"It will not happen, in fact. It's far too daunting," Frey said.

Frey also took issue with the idea that the petition seeks to go against the will of California voters, arguing that the judiciary has a responsibility to ensure the death sentence is applied in a constitutional manner, even if efforts to end the death penalty have proved unpopular at the polls.

"The role of the courts is to step in and do justice, especially when it's democratically unpopular," Frey said.

Frey, who described the application of the state's death penalty as "a vestige of lynching and racial discrimination" that continues to be used as a tool of racial subjugation, noted that capital punishment today only remains legal in southern U.S. states that survived economically on slavery before the Civil War and in some of the states — including California — that were destination states during the Great Migration for upwards of six million Black Americans fleeing segregation and racial violence in the South.

Surviving Death Row

Graham was among those who traveled to California during the Great Migration. The son of plantation workers, Graham grew up in segregated Louisiana in the 1950s. As a pre-teen, Graham's parents and siblings moved to Los Angeles, leaving Graham and his brother behind and in the care of their grandmother for two years before they were finally reunited with the rest of the family in California.

Once he arrived in Los Angeles, Graham says he became a product of his environment. He joined neighborhood gangs and "did terrible things," including carrying out a robbery that, at the age of 18, resulted in a conviction and a life sentence with the possibility of parole after five years.

In prison, Graham learned to read and write. By 1970, he had joined the Prison Movement, which he said sought to "expose the brutality and the racism that was going on in prison" and to expose the prisons' use of long-term solitary confinement.

In 1973, Graham was accused of killing a prison guard during an inmate uprising and sentenced to death in 1976 by an all-white jury. Graham maintains his innocence and believes he was framed in retaliation for his political activism inside the prison.

After three years on death row, the California Supreme Court overturned his conviction. At his final trial, a jury acquitted him and he was released from prison in 1981.

In the decades since he's been off death row and out of prison, Graham said the statistical findings of numerous studies only helped confirm the kinds of issues that had for years been part of his advocacy work: that racial disparities continue to pervade California's death penalty system.

A 'Loathed Decision'

In 1987, the U.S. Supreme Court addressed a question over racial disparities in the use of the death penalty in McCleskey v. Kemp , holding that statistical proof of racial disparities in the application of the death penalty was insufficient to establish an equal protection violation under the federal Constitution.

The petitioners in California, however, argue that because the state constitution there is "a document of independent force" with greater equal protection guarantees than the U.S. Constitution, the California Supreme Court is not bound by federal precedent created by the McCleskey decision.

Frey, with the ACLU of Northern California, told Law360 that McCleskey was a "uniquely shameful and loathed decision" among criminal justice reform advocates.

The appeal stemmed from the 1978 conviction of Warren McCleskey, a Black man who was sentenced to death in Georgia for killing a white police officer. In pressing the case to the U.S. Supreme Court on McCleskey's behalf, the NAACP Legal Defense Fund offered up statistical evidence that Georgia's courts were far more likely to condemn a convicted murderer to death if the victim was white than if the victim was Black.

In upholding the sentence in a 5-4 decision, then-Justice Lewis Powell Jr. wrote for the majority that the statistical data made no difference because McCleskey failed to show that Georgia intentionally administered the death penalty in a racially discriminatory way against him.

In the summer of 1991, a little over four years after he retired from the bench, Justice Powell told his biographer that, of all the cases he had presided over, it was his vote in McCleskey v. Kemp that he would go back and change if he could. On Sept. 26, 1991, the state of Georgia executed McCleskey.

Thirty-seven years after McClesky, NAACP Legal Defense Fund is still battling in the courts to end the disparate application of the death penalty towards people of color.

Patricia Okonta, assistant counsel at the Legal Defense Fund, told Law360 in an interview that the racial disparities documented in California's application of the death penalty were consistent with what has been seen in other states and at the federal level: that capital punishment appears to be applied in a disparate manner for individuals of color.

But given what she said were the additional equal protection guarantees provided under the California Constitution as compared with the U.S. Constitution, she said the current challenge pending would not require proof of intentional or deliberate discrimination in addition to statistical evidence of racial disparities in the application of the death penalty.

"We want to ensure that all Californians, regardless of their race, are treated equally within the criminal legal system and aren't subject to a two-tier system of justice," Okonta said. "We need to address these disparities in a court of law as soon as possible."

Decades later, Graham is still haunted by the death sentence he received.

"Them people tried to kill me," he said. "Each and every day I be playing with my grandkids and be having a happy time, and I be thinking: What if California would have acted on this?"

--Editing by Dave Trumbore.

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