The California Supreme Court refused Wednesday to block death penalty cases from proceeding during Gov. Gavin Newsom's moratorium on executions.
The justices rejected defense attorneys' arguments that jurors can't realistically gauge the seriousness of imposing a death sentence if they think it's never actually going to be carried out.
Newsom halted executions in March for as long as he remains governor, but the death penalty remains on the books and courts have been proceeding on the assumption that executions may one day resume.
Attorneys for two men separately facing trials in multiple slayings say it's unfair to ask jurors to consider what for now would be hypothetical sentences.
"In light of this paradigm shift, a California jury in a capital case cannot be expected to provide a fair and reasoned penalty phase determination free from speculation," defense attorney Robert Sanger wrote on behalf of his client, Cleamon Demone Johnson.
He is awaiting trial on five counts of capital murder and one of attempted murder. An appeals court said they were "six casualties of the gang wars between the Bloods and the Crips in the early 1990s."
California hasn't executed anyone since 2006. Still, Los Angeles County prosecutors contend that barring jurors from considering death sentences would be "tantamount to judicial abolition of the death penalty in violation of the wishes of California voters."
Voters have repeatedly, if narrowly, supported executions and in 2016 approved a ballot measure to speed them up. Lawmakers backed by the governor are considering putting another measure on the November 2020 ballot to repeal the death penalty.
In July, the justices temporarily halted the case against Jade Douglas Harris. He could face a death sentence if convicted of charges that he killed three people and wounded a 13-year-old boy while stealing a car in 2012.