This morning, Governor Gavin Newsom will sign an executive order that will halt the death penalty in California for the duration of his term. California will become the latest state where the governor has used his executive authority to impose a moratorium on executions.
In a prepared statement the governor plans to make, he says, “Our death penalty system has been — by any measure — a failure.”
He said, “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars.”
He added, “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Mr. Newsom said. “In short, the death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
Governor Newsom points out in his remarks that 164 condemned prisoners nationwide who were wrongly convicted have been freed from death row since 1973. He also cites research which found that people convicted of killing whites were more likely to be sentenced to death than people convicted of killing blacks and Latinos.
The executive order will do three things. First it will grant reprieves to those on death row but not at risk of execution. Second it closes the execution chamber at San Quentin prison. Third, it withdraws the state’s lethal injection protocol.
The order will prevent the state from putting any of the current 737 condemned prisoners to death during Governor Newsom’s term. It will also close the execution chamber at San Quentin State Prison as well as put an end to efforts that were passed in 2016 to speed up the death penalty. Since courts cleared the way to resume executions under that ballot measure, the state has been working to devise a constitutional method for lethal injection.
California has not executed anyone since 2006 but opponents of the death penalty feared that executions could resume at some point for more than 20 inmates with appeals exhausted – Governor Newsom said that he was worried that could happen soon.
The governor’s actions figure to anger death penalty supporters.
“The voters of the State of California support the death penalty. That is powerfully demonstrated by their approval of Proposition 66 in 2016 to ensure the death penalty is implemented, and their rejection of measures to end the death penalty in 2016 and 2006, said Michele Hanisee, president of the Association of Deputy District Attorneys, in a statement late Tuesday.
“Governor Newsom, who supported the failed initiative to end the death penalty in 2006, is usurping the express will of California voters and substituting his personal preferences via this hasty and ill-considered moratorium on the death penalty.”
Kent Scheidegger told the Bee earlier this month that preventing executions through executive action is an abuse of a governor’s power.
“It’s not supposed to be a weapon for blocking the enforcement of the law that the people have passed just because the governor disagrees with it,” said Mr. Scheidegger, who is the legal director for the Criminal Justice Legal Foundation.
“I think this would be a bold step and I think he’s got to be aware of the political downside,” said Michael D. Rushford, president of the Criminal Justice Legal Foundation, which favors the death penalty and helped draft the ballot proposition. “Voters have had multiple opportunities in California over three decades to abandon the death penalty and they’ve shut them down at every chance.”
The move comes after Governor Jerry Brown disappointed many when he failed to commute the sentences of the 730 people sitting on death row.
However, the New York Times writes: “His refusal was in some ways a political gift to Mr. Newsom, giving him the opportunity to take a high-profile position with national significance early in his administration.”
They note that Newsom made a similar overture in his tenure as mayor of San Francisco when he legalized gay marriage at a time when it was not a popular move.
There figure to be legal challenges to a moratorium, especially in light of the 2016 passage of Prop. 66.
“A moratorium in California has enormous symbolic value,” said Robert Dunham, the executive director of the Death Penalty Information Center. “It’s part of the momentum we are seeing.”
But even without the moratorium, capital punishment has stalled in the courts due to challenges to the drug protocols – which many believe can cause painful deaths. Moreover, new death sentences have slowed to a trickle.
At the same time, the persistence of capital punishment in California has been a strange anomaly. In 2016, a measure that would have banned the death penalty failed, while a measure that would streamline it narrowly passed with 51 percent of the vote.
Some have been baffled by the outcome in a state where Hillary Clinton overwhelmingly trounced Donald Trump in the same election – just as Barack Obama won in 2012 as the death penalty abolishment proposition failed.
Some have noted the disconnect between California, as a liberal state, being behind the tide on capital punishment. But they should perhaps also recall that it was not that long ago where Supreme Court justices were removed by the voters for blocking executions. In that sense, the state has moved a lot further than people may recognize.
Shilpi Agarwal, a staff attorney at the American Civil Liberties Union in San Francisco, noted in a comment to the New York Times that the “endurance of the death penalty in California has acted as a check on the national movement against capital punishment.
“It is a state people look to, to set the tone for national policy,” she said. “The fact that so many states have abolished the death penalty — but California hasn’t — has given people cover for this narrative that people are still supportive (of) the death penalty.”
—David M. Greenwald reporting