Gavin Newsom’s California death penalty moratorium: Perfectly legal, but wrong

March 15, 2019 GMT

California Gov. Gavin Newsom has issued a moratorium on the death penalty in his state, granting a reprieve to more than 700 inmates on death row.

“The death penalty is unevenly and unfairly applied to people of color,” the governor said in a written statement announcing the decision. About this, he was right: As the writer Charles Fain Lehman pointed out, of the 13 people California has executed since 1976, 11 were white. But California is only 47 percent white, suggesting real racial bias in the application of the death penalty, though probably not the kind that the governor suggested.

Political arguments about the death penalty often revolve around issues such as cost and the terrifying possibility of executing the innocent. But the split between supporters and opponents is more fundamental than that. There are those who think society is well within its rights to end the lives of people such as Scott Peterson, who murdered his pregnant wife and dumped her in San Francisco Bay on Christmas Eve 2002, or Gunner Lindberg, a white supremacist who fatally stabbed a Vietnamese-American college student more than 50 times in 1996 because he mistook him for a “Jap,” or Darnell Williams, who murdered an 8-year-old girl as an act of “revenge” against her father in 2013. And then there are those who don’t.

Most Californians, as liberal as the state’s electorate is, tend to fall into the former category. In 2016, the state’s voters were presented with two referenda on the subject. One would have ended the death penalty. The other aimed to expedite the process, by, for instance, limiting the appeals process to five years. The measure expediting executions passed, while death penalty abolition failed, though subsequent court decisions largely gutted the successful referendum. Californians had grown impatient, it seems, with the last execution having occurred in 2006. (The state for years has lacked a protocol for administering executions because of issues surrounding procurement of the drug “cocktail” that ends condemned prisoners’ lives.)

The governor’s move, therefore, feels uncomfortably undemocratic. Many families of murder victims expressed shock and outrage at the announcement as did many pundits who, whether or not they support the death penalty, felt the governor’s move to be an abuse of power.

But while it may strike many as fundamentally wrong, the governor’s move appears to be perfectly legal. “Is it an abuse of power?” asks Robert Dunham, executive director of the Death Penalty Information Center. “The legal answer to that is no. The California Constitution gives him that power.”

Each state applies the death penalty differently, Mr. Dunham explains. In Pennsylvania, for instance, where Democratic Gov. Tom Wolf has announced a moratorium on the death penalty, the governor has to issue a separate reprieve each time a capital case comes up. But in California, the governor can issue a blanket moratorium. Franklin Zimring, an expert on death penalty jurisprudence at Berkeley law school agrees, saying that in California “the power of the state executive to halt executions is substantial.”

Support for the death penalty has slowly declined over recent decades, with pluralities in many states now backing its abolition. However, there’s a catch, Mr. Dunham points out: Only when an alternative of life without parole is preserved do pluralities or majorities support ending it. If it’s a simple yes-or-no question on the death penalty, yes still tends to come out ahead.

That suggests, intriguingly, that death penalty abolitionists would do well to steer clear of criminal justice reform advocates who support reducing prison sentences and ending “mass incarceration.” Americans may increasingly support ending capital punishment, but they still want hardened criminals locked up.

The only way California can truly abolish capital punishment is with a constitutional amendment or a voter initiative. It’s likely that come 2020, the abolitionists will take another shot. But in the meantime, the governor is free to flout the will of the people and halt executions.

So is Mr. Newsom’s move a profoundly undemocratic nullification of the voters’ will or a perfectly legitimate and legal use of his own powers?


Ethan Epstein is deputy opinion editor of The Washington Times. Contact him at eepstein@washingtontimes.com or on Twitter @ethanepstiiiine.