Newsom: I'm unilaterally ending California executions that, um, haven't happened in more than a decade anyway

Theoretically, Gavin Newsom may create a potential constitutional crisis in California. In practical terms, though, the new governor’s decision to impose an “indefinite moratorium” on executions creates nothing more than a public-relations opportunity out of a longstanding status quo. The change will impact over seven hundred people on Death Row … in a technical sense, anyway:

California Gov. Gavin Newsom (D) on Wednesday will impose an indefinite moratorium on carrying out the death penalty, arguing that the cost, finality and racial imbalance among death-row inmates make the punishment immoral and a public policy “failure,” according to planned remarks released by his office.

Newsom will suspend the practice through an executive order that will give a reprieve from execution — though not release — to California’s 737 death row inmates, about a quarter of the nation’s population awaiting capital punishment. The order will also annul California’s lethal injection protocol and close the execution chamber at San Quentin State Prison, where the state’s most notorious criminals have been put to death.

“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,” Newsom plans to say. “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.”

The move caught the attention of Newsom’s top critic on Twitter this morning. Donald Trump accused Newsom of insulting the “friends and families of the always forgotten VICTIMS” with the expected executive order:

At National Review, Charles C.W. Cooke makes an impressive — but ultimately unconvincing — case for considering this move an abuse of power. This is not a proper exercise of the executive’s pardon power:

The gubernatorial reprieve power is designed for case-by-case evaluations. It is not designed to be used wholesale as a means by which the executive branch can effectively decline to execute laws it opposes. The death penalty has been explicitly and repeatedly affirmed by the voters in California in the last few years — not merely in opinion polls, but in legally binding propositions. Just two years ago, voters in California not only refused to repeal the death penalty, they voted to speed up the appeal process. If I lived in the state of California, I would have voted for repeal. But I would have lost. Governor Newsom lost, too. Now, like Barack Obama and Donald Trump, he is doing what he wants anyway. This is not “prosecutorial discretion” — or any form of “discretion” for that matter. It is not a “reprieve.” It is not a “moratorium.” It is a nullification. It is wrong.

Cooke may have a point that applies better in California than it would to the presidency. For the latter, Article 2 Section 2 provides a plenary authority for issuing pardons and “reprieves” (commutations) for all offenses other than impeachment no matter what other circumstances apply. Jimmy Carter’s blanket pardon of draft dodgers after the Vietnam War set a precedent for similar mass actions.

In California’s constitution, however, the authority for clemency is more limited. It doesn’t necessarily prevent mass commutation actions, but it does set up a limit on eligibility that a significant number of those on Death Row likely cannot meet, emphasis mine:

SEC. 8. (a) Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.

How many of the 737 impacted by Newsom’s declaration have been convicted of multiple felonies? More than a handful, I’d assume, which means that Newsom would have to get a case-by-case review by the Supreme Court in order to commute their sentences.

That’s not what Newsom’s doing, however. The sentences won’t be changed; Newsom is just not going to conduct any executions. That’s the problem Cooke addresses in the first part of his argument (not excerpted for fair use considerations — follow the link), in which Cooke accuses Newsom of dereliction of duty. Newsom’s argument, however, is that the process of sentencing and execution is broken in such a way that it becomes both unfair and cruel in its application. A state’s chief executive should have the authority to suspend such operations if that’s truly what is happening.

At any rate, all of this is academic, because California isn’t conducting executions anyway. Their last execution took place over thirteen years ago when Clarence Ray Allen got the needle 24 years after getting sentenced to death. In fact, the last five people actually executed in California had all waited 20 or more years for their executions. Later in the same year that Allen got executed, a federal court halted the use of lethal injection without trained medical personnel, which effectively imposed a moratorium that still applies to this day (Morales v Tilton, 2006). Californians voted to speed up the process, as Cooke notes, but they don’t seem terribly energized in pursuit of those policies, or for that matter to restart executions — outside of the families of the victims, who all have very good reasons for desiring that policy.

Newsom’s just engaging in a stunt here. The process has stalled for more than a decade without Newsom and California’s legislature and courts haven’t done anything to change that situation. Newsom is making a virtue out of the status quo, and nothing more.