As COVID-19 Ravages California’s Death Row, the State Attorney General Fights to Keep It Packed

Xavier Becerra
California Attorney General Xavier Becerra looks on during a news conference at the California Justice Department on Sept. 18 in Sacramento Justin Sullivan/Getty Images

More than a year after California’s Democratic governor, Gavin Newsom, issued a moratorium on executions, condemned prisoners are facing a new lethal enemy: COVID-19. San Quentin Prison, where 693 men now live under sentences of death, has been engulfed by the virus.* More than 2,100 people at San Quentin have been afflicted, including nearly one quarter of those on death row. To date, eight death row prisoners have died from complications stemming from COVID-19, comprising half the prison’s fatalities.

One major factor worsening the pandemic is the overcrowding in California prisons, and on death row in particular, where the population has swelled to 725. Yet as this crisis has unfolded, the state’s Democratic attorney general, Xavier Becerra, has continued to fight to cement these convictions. Becerra is often heralded as a hero of the left due to his numerous legal battles against the Trump administration. But back home, he is sending his deputies into court to uphold death sentences, including those involving egregious prosecutorial misconduct, false testimony, and racially biased arguments.

As the state’s chief law enforcement officer, Becerra has a legal and ethical obligation to be a “minister of justice.” His death penalty stance is fundamentally at odds with that role. The litigation undertaken by his administration to preserve these ill-gotten convictions—many against people of color who are now older people and thus particularly vulnerable to COVID-19—is pointlessly cruel.

The governor had many reasons for implementing the moratorium, which Becerra praised at the time as a “bold, new direction in California’s march toward perfecting our search for justice.” Newsom noted that the death penalty is racist in its implementation and snares the innocent in its net. Five death row prisoners in California have been freed because they were wrongfully convicted, and Newsom cited statistics indicating that there are more than two dozen others.

Consider the case of Michael Hill, a Black man who was sentenced to die in 1987 for shooting to death a store owner, Anthony Brice, and his 4-year-old son during a robbery. The state’s case hinged in part on the statements of Michael McCray, which McCray made while he himself was under interrogation for robbing and killing the Brices. McCray told the police—who were also investigating him for drug-related crimes—that the shooter was Hill. Even though he failed two lie detector tests, McCray was released. The Alameda County district attorney provided McCray with a written promise that he would not be charged with the robbery or murder of the Brices.

At trial, Hill testified that McCray was the shooter. Hill admitted that he was present at the scene and that he let McCray into the store at Brice’s request. Hill stated that almost immediately upon entering, McCray began firing at the Brices, causing Hill to flee. He also acknowledged taking some of the jewelry after McCray gave it to him to sell. But Hill has consistently denied participating in the Brices’ murders or knowing of McCray’s plans to shoot them.

McCray did not testify at Hill’s trial. Instead, edited excerpts of his interview were read to the jury after the prosecutor assured the court that McCray was “unavailable” because he was asserting his right to remain silent. The prosecutor never told the court the truth: that McCray had no reason to fear charges because the district attorney had already promised not to bring any. Of the 11 witnesses who did testify against Hill, the prosecutor promised financial rewards to nine, including two people who were state informants. None of that information, or the criminal histories of the witnesses, was disclosed to Hill’s trial attorneys.

It wasn’t until 2007, more than 20 years later, that the state’s misconduct to come to light. At that point, rather than concede error, the Attorney General’s Office, led by former California Gov. Jerry Brown, doubled down. In multiple filings in federal court—the most recent one being on Thursday—Becerra’s deputies hewed to this position, arguing that Hill’s claims should not be addressed at all because the state court had been denied the opportunity to review the evidence first—evidence that Becerra’s predecessors in the Attorney General’s Office had joined with the district attorney to keep hidden. Becerra is “fully complicit with the Alameda County District Attorney’s Office in the suppression of the truth, resulting in Michael Hill’s wrongful incarceration on death row for decades,” Hill’s attorneys wrote in a May court filing.

Becerra’s office also fought to defend the conviction of Vicente Figueroa Benavides, a Mexican-born farmworker who was falsely accused of murdering a 21-month child. After every expert but one recanted their testimony in December 2012, Benavides sought relief in the state’s highest court. Over Becerra’s objection, the California Supreme Court reversed Benavides’ convictions, and the local district attorney later dropped all the charges. Benavides is a free man today, despite Becerra’s efforts to keep him locked up.

Then there is the attorney general’s embrace of a peculiar race-based argument for execution. The United States Supreme Court decided in 2002 that the Eighth Amendment’s ban on cruel and unusual punishment forbids the execution of those suffering from intellectual disability. Becerra’s office has asked for an “ethnic adjustment” in a Black defendant’s IQ score to raise it enough to clear that constitutional bar and put him to death.

In the case of Robert Lewis Jr., a Black man with an IQ of 70, the attorney general sent his deputy into the California Supreme Court in 2018 to argue that the justices should automatically raise Lewis’ IQ score. The deputy argued that Lewis was among a group of “African American children [who] scored much more poorly on these tests than did the group against which the test was normed. And what does that tell us? It tells us that this test may underestimate his intelligence.”

As others have pointed out, this theory isn’t just alarming—it appears to violate the U.S. Constitution’s guarantee that all people are entitled to the equal protection of the law. Lewis’ attorney explained to the justices, “You can’t ethnically adjust scores to get a job as a police officer, you can’t ethically adjust scores to get into college, to get an education, and therefore you cannot ethnically adjust scores to kill somebody.” (Legislation to abolish this kind of race-based argument is pending in the California state Senate after the state’s Assembly voted unanimously to enact it. The attorney general has not taken a public position.)

Soundly rejecting Becerra’s race-based adjustment to his IQ, the California Supreme Court ruled 7–0 that Lewis was intellectually disabled and threw out his death sentence, noting that he “was unable, as opposed to unmotivated, to learn.”

But Michael Hill remains on San Quentin’s death row. And there are many more like him—condemned people whom the attorney general is fighting tooth and nail to execute, even though their convictions are fundamentally flawed and they are older adults at grave risk of contracting the deadly disease ravaging the prison.

There are a few cases in which Becerra has agreed not to appeal a ruling in favor of a death row inmate, and several in which he has taken a more measured position in court. These are commendable developments, but they are also outliers. Becerra’s default position is to pretend the moratorium does not exist and to litigate like a typical pro–death penalty prosecutor. But Newson has “supreme executive power” under the California Constitution, which means that he can order Becerra to halt every single death penalty prosecution in California and cease defending those that have already been obtained. It is imperative to act now that COVID-19 poses a mortal threat to the lives of so many.

Correction, July 30, 2020: This article originally misstated the number of men on California’s death row at San Quentin State Prison. There are 693 men on death row, not 720.