California’s death penalty law deserves a vigorous defense

The challengers understandably prefer Bonta as their sole "opponent" who might never offer more resistance than the Washington Generals put up against the Harlem Globetrotters.

The constitutionality of California’s death penalty law is currently under attack in the California Supreme Court by a coalition of criminal defense attorneys and other death penalty opponents. The challengers launched their attack in a lawsuit filed against state attorney general Rob Bonta, himself a death penalty opponent.   The challengers like their chances. 

But the district attorneys of Riverside and San Bernardino Counties have other ideas.  They believe the law deserves to be defended as energetically as it’s been attacked.  And so, when the court recently asked Bonta to submit a “preliminary opposition” to the lawsuit the local prosecutors filed their own opposition briefs arguing (among many other points) that the challengers can’t get around Article I, section 27 of the state constitution, which says “The death penalty . . . shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments . . . nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.”   

Bonta, unwilling to “oppose” the lawsuit as the court requested, instead filed something he titled a “response” that strongly signaled sympathy for the challenge and urged the court to at least give it a warm reception.  As one observer has put it, “Bonta appears to be firmly in the [challengers’] corner.” 

In their latest round of briefing, the challengers, while appreciative of Bonta’s friendly stance, strongly objected not only to the prosecutors’ vastly different views but to their sharing those views with the court.  Having sued Bonta and no one else, the challengers condemned the prosecutors’ participation as “unauthorized.”  Bonta, the challengers argue, “will ably represent district attorneys’ interests.”

But the district attorneys have no interests of their own; they chimed in solely to vindicate state law and otherwise protect the public’s interests―a responsibility entrusted by law to the state’s independently elected district attorneys and the attorney general alike.  

What’s next?  The court could still reject the challenge outright on any number of available grounds. Or it could allow the lawsuit to go forward with the challengers going up either against Bonta alone or with the district attorneys in the mix.  

Denying the prosecutors a direct voice, as the challengers demand, would do both the public and the court a great disservice.  After all, when striving to achieve justice it’s the court’s job to wrestle with the strongest arguments from all sides. 

If the duty to defend state law actually rests with only one advocate and that advocate must be Bonta, it would fall to Bonta―not those suing him―to try to block the district attorneys’ participation.  Bonta, to his credit, hasn’t done so.  He likely realizes he can’t stop the prosecutors  from speaking on the public’s behalf, or he might actually appreciate that justice is best served by their active engagement in the case.  Although Bonta’s own “defense” of the death penalty law so far has been wanting, he at least informed the court that there are “others who might be entitled to participate in the proceedings” beyond the “named parties.” 

The challengers understandably prefer Bonta as their sole “opponent” who might never offer more resistance than the Washington Generals put up against the Harlem Globetrotters. But litigation isn’t staged entertainment and high-quality judging can’t happen without forceful and committed advocacy. That’s why litigants don’t get to pick their opponent’s lawyers, and why the supreme court must allow the district attorneys to defend California’s death penalty law with the commitment and dedication the public deserves. 

Over his 35-year career as a prosecutor, Ron Matthias, a resident of Contra Costa County, worked as a deputy district attorney and later a deputy attorney general.  He personally handled scores of capital cases in state and federal court, and from 2007 until retiring in 2019, he oversaw the litigation of hundreds more cases while serving as the statewide capital case coordinator in the California Attorney General’s office.