WilmerHale, alongside a coalition of civil rights organizations, secured a significant procedural victory in a landmark challenge to California’s death penalty when the Supreme Court of California issued an order to show cause, moving the case into a new phase of litigation and increasing scrutiny of whether the system complies with constitutional guarantees of equal protection and the prohibition on cruel or unusual punishment.
Background
In April 2024, WilmerHale, working with a coalition of leading civil rights organizations and legal advocates, including the Legal Defense Fund, the ACLU Capital Punishment Project, the ACLU of Northern California, and the Office of the State Public Defender, filed a writ petition in the Supreme Court of California arguing that the state’s death penalty statute is racially discriminatory, as applied, and therefore unconstitutional under the Equal Protection guarantees of the California Constitution.
The petition argues that decades of empirical evidence demonstrate that the death penalty in California is imposed in a racially discriminatory manner. Significantly, a substantial body of social science research reveals that Black people are about five times more likely to be sentenced to death when compared to similarly situated non-Black defendants, while Latino people are at least three times more likely to be sentenced to death.
In further supplemental briefing, petitioners argued that the empirical evidence shows California’s capital sentencing scheme is applied in a racially discriminatory manner in violation of article I, section 7, and independently violates article I, section 17 because it is imposed in a racially disparate and arbitrary manner.
Through their original petition and supplemental briefing, petitioners sought sweeping relief, including a declaration that California’s capital sentencing scheme is unconstitutional as applied, along with orders barring future capital prosecutions and preventing enforcement of existing death sentences under the current statutory framework. In the alternative, petitioners sought “that the Attorney General be ordered to show cause why a peremptory writ granting such relief should not issue.”
Recent Developments
On May 27, 2026, the Supreme Court of California did just that, issuing a three-sentence order “to show cause in the Superior Court of California ... why the relief prayed for should not be granted,” and thus moving the case toward merits adjudication.
The court’s order does not resolve the merits of the petition, but rather transfers the matter to the trial court for further proceedings and factual development, where both petitioners and the state will have the opportunity to present evidence and legal arguments concerning whether California’s death penalty system violates the state constitution.
This procedural step marks a historic development. It reflects the court’s determination that the issues raised warrant further judicial review rather than summary disposition. As WilmerHale partner Seth Waxman noted, “the Court’s order was highly anticipated, and long overdue.”
Broader Context
The litigation unfolds against a complex backdrop. Although California retains the death penalty as a matter of statutory law, executions have not been carried out since 2006, and a statewide moratorium has been in place since 2019. At the same time, prosecutors in certain jurisdictions have continued to seek and obtain death sentences, and hundreds of individuals remain on California’s death row.
The case also raises fundamental questions about the role of statistical evidence in constitutional adjudication. Petitioners rely on an extensive record of empirical studies purporting to show systemic disparities, while the state and amici are likely to argue that constitutional challenges must proceed on a case-by-case basis rather than through broad, system-wide claims.
Looking Ahead
The trial court proceedings in Sacramento will provide the first comprehensive evidentiary examination of petitioners’ claims and may have significant implications for the future of capital punishment in California, including whether the state’s death penalty scheme remains viable under both the equal protection and cruel or unusual punishment provisions of the California Constitution.
“This case has the potential to be transformative,” says WilmerHale partner Jessica Lewis. “For decades, the death penalty in California has been administered in a racially discriminatory manner, in violation of the state constitution’s equal protection guarantees. The potential for a full merits proceeding brings us much closer to confronting—and remedying—that reality.”
WilmerHale’s Role
WilmerHale is proud to represent petitioners in this matter as part of a coalition of leading civil rights organizations and legal advocates. Members of the current WilmerHale team include Seth Waxman, Jessica Lewis, Arthur Coviello, Kathryn Zalewski, Allison Que, Nathaniel Reisinger, Kaylene Khosla, Abby Frederick, Chelsey Jordan, Arjun Parikh, Nina Perez-Morales, and William Powers.