The Supreme Court is not rejecting out of hand an original writ petition seeking a declaration that California’s death penalty scheme is unconstitutional as racially discriminatory. (See Heavyweight writ petition asks Supreme Court to declare death penalty unconstitutional.) Instead of summarily denying the petition at the outset, the court today asked State Attorney General Rob Bonta, who is the lone respondent named in the petition, to file a preliminary opposition. (See rule 8.487(a)(1).)
While the court has asked for a preliminary opposition, Bonta’s filing might not be a full-throated defense of capital punishment in California. The Attorney General’s “duty” is “to see that the laws of the State are uniformly and adequately enforced.” (Cal. Const., art. V, sec. 13.) However, the crux of the petition is that the death penalty statutes are not being uniformly enforced and the petition reports Bonta “acknowledges that ‘ “[s]tudies show” ’ the death penalty has ‘ “long had a disparate impact on defendants of color, especially when the victim is white.” ’ ”
The court set May 6 as the due date for the preliminary opposition and said the petitioners will have 10 days after that date to reply. The court will then at some point (there’s no deadline) decide whether to hear the petition on the merits. If it does, there will be fuller briefing from the Attorney General and most probably a number of amicus briefs. (Rule 8.487(b) & (e).)
A summary denial of the petition without a decision on the merits is still an action option. Today’s request shouldn’t be seen as anything more than a determination that the petition is not obviously meritless.
Another action option is for the court to issue an order to show cause, but send the petition to a superior court for a decision. The petition relies on “[e]xtensive empirical evidence” to establish racial discrimination and the Supreme Court might conclude a trial court is the more appropriate forum for an evaluation of that evidence, at least in the first instance.