There is a peculiar habit in contemporary political and social commentary: Find a troubling statistic, attach a moral conclusion and assume the argument is finished.

Sometimes the statistics are wrong. Sometimes the conclusions are exaggerated. And sometimes the statistics are perfectly legitimate, but the conclusions require considerably more examination than the author is willing to provide.

David M. Greenwald’s October 28, 2026, Davis Vanguard article, “California Prosecutors Defend Death Sentences as Research Documents Racial Disparities,” presents an interesting example. [4]

The article examines California’s death penalty, prosecutors who oppose blanket commutations, research documenting substantial racial disparities and the experiences of murder victims’ families.

Unlike many contemporary commentaries, Greenwald does not resort to inflammatory accusations or particularly theatrical language. His reporting is largely factual, and the research he presents deserves serious consideration.

Nevertheless, the article leaves several important questions insufficiently examined. Most notably, it never fully reconciles the difference between demonstrating racial disparities in a judicial system and establishing that those disparities justify commuting hundreds of individual death sentences.

That distinction is where this debate becomes interesting.

First, the Statistics Are Not Imaginary

Greenwald cites a 2024 study published in the Journal of Empirical Legal Studies , conducted by Catherine Grosso, Jeffrey Fagan and Michael Laurence. [5]

The researchers examined more than 27,000 California murder and manslaughter convictions involving crimes committed between 1978 and 2002.

Their conclusions were troubling.

After accounting for selected factors involving culpability and aggravating circumstances, the researchers found that Black defendants faced between 4.6 and 8.7 times the odds of receiving death sentences compared with similarly situated defendants in the study.

For Latino defendants, the adjusted odds were between 3.2 and 6.2 times higher.

Perhaps even more revealing, defendants convicted of killing at least one white victim faced between 2.8 and 8.8 times the odds of receiving a death sentence compared with defendants whose victims were not white.

These are not insignificant discrepancies. They are substantial statistical relationships that deserve investigation.

The researchers also identified differences in prosecutorial charging practices and jury sentencing decisions.

And here Greenwald is on solid ground.

It would be intellectually dishonest to dismiss the findings simply because they challenge one’s preferred position on capital punishment.

However, those figures are odds ratios , not percentages or direct measures of probability. A finding of four times the odds does not mean four times the probability in every circumstance.

More importantly, statistical disparity and discrimination are related concepts, but they are not interchangeable.

The Difference Between Disparity and Discrimination

Consider two defendants convicted of murder.

One receives life imprisonment without parole. The other receives a death sentence.

If the first defendant is white and the second is Black, does that establish racial discrimination?

Obviously not.

We would first need to examine the circumstances of the crimes, the defendants’ individual culpability, aggravating and mitigating factors, prior criminal histories, legal representation and the evidence presented at sentencing.

Now suppose we examine thousands of comparable cases and discover that Black defendants consistently receive death sentences at substantially higher rates, even after accounting for several of those factors.

Suddenly, the question becomes considerably more serious.

That is essentially what the California research attempts to do.

But an important limitation remains: Statistical controls cannot guarantee that every legally relevant difference among thousands of individual cases has been captured.

Nor can they establish that every prosecutor, judge or juror involved acted with discriminatory intentions.

That does not render the findings meaningless. Quite the opposite. It identifies the nature of the evidence and the limits of what we can reasonably conclude from it.

There is also an important complication for those who insist discrimination must be intentional.

A judicial system can produce racially discriminatory outcomes through institutional practices and accumulated decisions even when no individual decision-maker consciously intends to discriminate.

Consequently, the absence of proven personal prejudice does not automatically establish the absence of systemic discrimination.

That is a stronger and more defensible argument than simply announcing that the entire system is racist.

What About the Age of the Research?

Another important detail deserves attention.

Greenwald’s article was published in October 2026. The principal research was published in 2024.

But the underlying criminal cases involved offenses committed between 1978 and 2002.

That means the evidence largely concerns crimes committed between 24 and 48 years before the article’s publication.

This matters.

California’s legal environment, prosecutorial practices, political leadership and public attitudes toward capital punishment have changed substantially during that period.

It would be unreasonable to assume automatically that the same statistical relationships operate in precisely the same fashion today.

However, the researchers reported that their study period encompassed the offenses of approximately three-quarters of California’s death-row population as of early 2024. [3, 5]

In other words, the historical evidence is directly relevant to many people whose sentences are currently under consideration.

The appropriate distinction is simple: The research tells us a great deal about the historical administration of capital punishment and many existing death sentences. It tells us less about how contemporary prosecutions are conducted.

Greenwald could have made that distinction more explicit.

An Interesting Statistic the Article Almost Passes Over

Another study, published in 2019, examined the breadth of California’s death penalty eligibility rules.

Researchers found that approximately 95% of first-degree murder convictions would have been eligible for capital punishment under California’s 2008 statutory framework. [1]

Yet only 4.3% of death-eligible cases resulted in death sentences.

Think about that for a moment.

A system in which nearly every first-degree murder conviction potentially qualifies for the death penalty, but only a small minority actually receives that punishment, necessarily leaves enormous room for discretion.

Some of that discretion is appropriate. Every crime and defendant presents different circumstances.

But discretion also introduces the possibility of inconsistency, regional variation and prejudice.

Who decides which defendant deserves death?

A prosecutor deciding whether to pursue capital charges? A jury evaluating mitigating circumstances? The county in which the crime occurred?

Potentially all three.

This is one of the strongest arguments in Greenwald’s article, although it deserves more extensive development.

The problem may not be simply whether individual prosecutors are racially prejudiced. It may also involve the structure of a sentencing system that gives decision-makers broad latitude without consistently distinguishing among eligible cases.

That is a legitimate constitutional concern, not political hyperbole.

The Prosecutors Have an Argument, Too

Greenwald discusses an October 21 opinion article by El Dorado County District Attorney Vern Pierson and former Sacramento County District Attorney Anne Marie Schubert. [4]

They oppose Governor Gavin Newsom’s possible blanket commutation of California death sentences to life imprisonment without parole.

Their reasoning deserves more than a passing acknowledgment.

California voters rejected efforts to abolish the death penalty in 2012 and 2016. In 2016, voters also approved Proposition 66, intended to accelerate death penalty appeals.

Whatever one’s position on executions, the public has repeatedly expressed support for retaining the punishment.

The prosecutors also emphasize that individual defendants were convicted through judicial proceedings, with juries considering evidence and imposing sentences under applicable law.

Their argument is that clemency should be evaluated individually rather than granted indiscriminately.

This is not an unreasonable proposition.

It recognizes that the circumstances surrounding one capital murder may be substantially different from another.

Consider the murders of 8-year-old Michael Lyons and 12-year-old Polly Klaas, both cited by the prosecutors.

These were horrific crimes involving actual children, actual families and terrible losses.

Their cases cannot simply disappear into an abstract statistical discussion.

Yet the opposite caution applies as well.

The horrific nature of a crime cannot establish that every aspect of its prosecution and sentencing was constitutionally sound.

Nor does the existence of a jury verdict eliminate the possibility of improper discrimination.

The proper question is not whether prosecutors or researchers deserve automatic deference.

It is whether the available evidence supports the sentence imposed in each case, under standards that themselves satisfy constitutional requirements.

When Does a Systemic Problem Justify a Systemic Remedy?

Here we arrive at the central difficulty.

Suppose researchers convincingly establish that racial considerations have influenced capital sentencing across California.

Does that mean every death sentence is unjust?

Not necessarily.

A statistical finding about a population does not automatically resolve the legal merits of every individual case.

On the other hand, requiring defendants to prove that racial discrimination specifically affected their own sentencing proceedings can be extraordinarily difficult when the alleged problem involves a statewide pattern of discretionary decisions.

Both observations are important.

The prosecutors favor individualized review.

Opponents of the existing system argue that discrimination may be sufficiently pervasive to undermine confidence in capital punishment throughout the state.

Neither argument can be dismissed with a slogan.

There is also a distinction between commuting a sentence and overturning a conviction.

A governor who commutes a death sentence to life without parole is not necessarily declaring the person innocent or invalidating the jury’s factual verdict.

The punishment changes. The conviction ordinarily remains, and the offender remains incarcerated.

Consequently, the claim that commutation necessarily disregards a jury’s determination of guilt is overstated.

But the opposing argument can also go too far if it assumes that evidence of statewide disparities automatically establishes the necessity of blanket commutations.

A sweeping remedy demands its own justification.

What specific constitutional harm is being corrected? Why is that remedy appropriate for every affected sentence? Are narrower remedies legally and practically sufficient?

Greenwald describes this dispute but does not fully examine its competing answers.

It would also be unfair, however, to claim that his article expressly demands blanket commutations. It does not. Rather, the article’s selection and presentation of evidence emphasize the case against the existing capital punishment system.

That is an editorial emphasis, not necessarily a factual misrepresentation.

The Constitutional Question

The issue has moved beyond political argument.

In April 2024, the California Office of the State Public Defender and allied organizations filed a legal challenge alleging racial discrimination in the administration of California’s death penalty. [2]

In May 2026, the California Supreme Court directed the attorney general to show cause why relief should not be granted, sending the matter forward for additional proceedings.

That development is significant.

But it is not a judicial determination that California’s death penalty is unconstitutional.

Courts routinely permit serious constitutional challenges to proceed without deciding that the plaintiffs have proved their allegations.

There is also an important distinction between federal and state constitutional protections.

In McCleskey v. Kemp (1987), the United States Supreme Court rejected a federal equal protection challenge relying on statistical evidence of racial disparities in capital sentencing, emphasizing the need to demonstrate discriminatory purpose affecting the defendant’s own case. [6]

California’s constitutional provisions and Racial Justice Act create potentially different avenues for relief.

The state’s courts must examine those legal questions on their own terms.

The presence of disturbing statistical disparities is powerful evidence.

It is not, standing alone, a final court judgment.

Greenwald accurately acknowledges that distinction, which strengthens the credibility of his reporting.

Do Victims’ Families Really Find Closure Through Executions?

The article also explores the experiences of murder victims’ families.

This is where emotional arguments can easily overwhelm careful analysis.

Some relatives believe executions provide justice, accountability or a sense of resolution.

Others oppose capital punishment, sometimes because they believe prolonged appeals inflict additional suffering.

Both experiences are real.

Greenwald cites research comparing homicide survivors in Texas and Minnesota. The researchers found that survivors in Minnesota reported better outcomes on several measures of physical, psychological and behavioral well-being.

Interesting? Certainly.

Conclusive? No.

A comparison between two states cannot establish that the death penalty itself caused the differences.

The legal systems, victim services, social environments, appeals procedures and individual circumstances of the crimes may vary substantially.

The study raises legitimate questions about the emotional consequences of prolonged capital proceedings. But demonstrating an association is not the same as proving causation.

This is precisely where commentators need restraint.

It is equally unreasonable to declare that executions universally bring closure or that they never provide it.

Grief is not a standardized human experience.

And victims’ families should not be treated as interchangeable representatives of a political position.

The Cost and Practicality Questions Are Missing

One of the article’s notable omissions involves the practical consequences of capital punishment.

A serious discussion should examine what California receives in return for maintaining a death penalty that has not resulted in an execution since 2006.

The state continues to operate under an execution moratorium imposed in 2019.

Defendants nevertheless remain subject to death sentences, and capital cases can generate extensive litigation.

That raises legitimate financial and administrative questions.

What are the additional costs associated with capital prosecutions, appeals, specialized representation and prolonged proceedings?

Would life imprisonment without parole substantially reduce those costs?

Would the resources saved produce measurable improvements in solving violent crimes or assisting victims?

And would blanket commutation actually resolve much of the existing litigation, or would significant legal proceedings continue for other reasons?

Those questions cannot be answered merely by assuming that abolition would save money, although research in other jurisdictions has frequently found capital punishment more expensive than noncapital alternatives.

A serious evaluation of California requires California-specific figures and consideration of which costs are avoidable.

The absence of a meaningful cost-benefit discussion leaves the article less comprehensive than it might otherwise have been.

Democracy, the Governor and the Voters

There is another legitimate argument that cannot simply be brushed aside.

California voters have repeatedly supported retaining capital punishment.

That does not mean the electorate can authorize unconstitutional practices. Constitutional protections are not subject to majority preference.

Nevertheless, public decisions matter in a democratic system.

Governor Newsom possesses constitutionally defined clemency authority, although California imposes additional requirements for certain repeat offenders.

The existence of that authority does not make every possible use of it equally prudent.

Commuting hundreds of death sentences would be an extraordinary exercise of executive power.

Supporters might reasonably argue that widespread discrimination, concerns about wrongful convictions or the risk of irreversible error justify such an action.

Opponents might reasonably contend that cases should be considered individually and that wholesale commutations would disregard important distinctions among offenders and the public’s repeated policy choices.

Neither position is inherently irrational.

This is a dispute involving constitutional responsibility, executive discretion, democratic accountability and the administration of justice.

Reducing it to a contest between racists and reformers would accomplish very little.

Fortunately, Greenwald generally avoids that sort of inflammatory characterization.

So, Is the Article Hyperbolic or on Point?

On the central statistical question, it is substantially on point.

The underlying peer-reviewed research is real. Its reported disparities are serious. The legal challenge is genuine. The California Supreme Court has permitted further examination of the claims.

There is no reason to dismiss those developments as invented grievances.

Nor is the article saturated with the exaggeration, name-calling and emotional theatrics that characterize so much modern political commentary.

Its weakness is more subtle.

The article places substantial emphasis on research supporting systemic criticism while offering comparatively little examination of the strongest arguments favoring individualized sentencing review.

It accurately reports statistical findings without fully exploring their methodological limitations.

It discusses victims’ experiences without sufficiently distinguishing between documented associations and causal explanations.

And it describes the dispute over blanket commutations without thoroughly examining whether the evidence supports that specific remedy.

These are shortcomings of balance, interpretation and completeness rather than examples of outright hyperbole.

There is an important difference.

My Conclusion: Justice Requires Evidence, Not a Preferred Narrative

I find the research compelling enough to warrant serious investigation.

When statistically comparable defendants experience substantially different sentencing outcomes associated with race, a responsible society should examine why.

Ignoring those findings because they are politically inconvenient would be intellectually indefensible.

But there is an equally important principle.

Justice should not be determined by statistical averages alone.

Individual culpability, evidence, legal protections, constitutional requirements and the circumstances of a particular crime remain essential.

Nor does recognizing racial disparities require assuming that every prosecutor acted out of prejudice, every jury returned a tainted verdict or every death sentence must necessarily be commuted.

Conversely, pointing to a heinous crime and a jury verdict does not answer legitimate questions about whether the state administered capital punishment fairly.

The appropriate response is to examine the evidence, identify the failures, correct violations and determine whether the system can operate within constitutional boundaries.

If the evidence ultimately establishes that California cannot administer capital punishment without intolerable racial arbitrariness, that conclusion should carry serious constitutional consequences.

But that determination must arise from legal analysis and evidence, not simply from the understandable desire to eliminate a troubling practice.

Greenwald’s article is credible and largely restrained. It raises legitimate concerns, cites meaningful research and identifies a consequential constitutional dispute.

Where it falls short is in leaving too much distance between the evidence it presents and the remedies under consideration.

None of those principles is mutually exclusive.

The death penalty debate deserves something better than opposing sides selecting whichever facts support conclusions they have already reached.

In this instance, Greenwald has contributed useful facts to the discussion.

What remains is the more difficult work of determining precisely what those facts establish and what they do not.