NEWS: What Gov. Newsom's Execution Ban Means - And Doesn't
Mar 13, 2019

(The Recorder) - Gov. Gavin Newsom on Wednesday placed a moratorium on the death penalty in California, telling lawmakers and reporters that he could not face the prospect of overseeing the executions of dozens of inmates in quick succession.

California has 737 inmates on Death Row, although just 25 have exhausted all their appeals. With years-long litigation over the state’s lethal injection process potentially ending during his administration, Newsom said he wanted a more “enlightened” alternative to lining up “human beings every single day for execution for two-plus years” and risking that some of the condemned are innocent.

“I don’t know about you, but I can’t sign my name to that,” Newsom said in Sacramento at a press conference, where he was flanked by supportive Democratic legislators. “I can’t be party to that. I wouldn’t be able to sleep at night.”

Executive Order N-09-19 grants a reprieve to all inmates sentenced to death. It repeals the state’s challenged lethal injection protocol, and it immediately shuttered the death chambers at San Quentin State Prison.

But interviews with attorneys on both sides of the issue suggest the order actually changes little about capital punishment in California—except the frame of debate.

The death penalty is still on the books, approved by voters in 1978. The order only formalizes a de facto, 13-year moratorium that’s been in place since lawsuits over the lethal injection method, and the administrative process for its approval, have slogged on in courts.

Some county district attorneys have continued to pursue death penalty charges, adding to the backlog of condemned inmates. Voters, too, have rejected two initiatives in six years to repeal the death penalty and approved another one in 2016 aimed at speeding up the process. In fact, the Judicial Council on Friday will consider seven proposed rules for handling habeas corpus petitions to comply with Proposition 66.

“My capital cases are still capital cases. They’re still pending in the Supreme Court,” said Cliff Gardner, a Berkeley attorney and veteran of approximately 20 capital appeals and habeas petitions in multiple states.

Gardner called Newsom’s order “an extraordinary step,” and one that he hopes leads to another repeal measure on the 2020 ballot. But he doesn’t see an end to death penalty cases any time soon.

“As for prosecutors, I don’t think this will change anything that a Riverside County prosecutor will do or a Kern County prosecutor will do,” Gardner said.

The order does not commute any prisoners’ sentences. Newsom instead relies on Article 5, Section 8 of the state constitution, which grants governors the authority to issue reprieves “on conditions the governor deems proper.”

The order does not include additional funding, either, to increase the pool of lawyers who can assist death penalty defendants. Finding an adequate number of willing and qualified capital attorneys has been a challenge.

The Habeas Corpus Resource Center, which represents inmates in their habeas proceedings, issued a statement Wednesday hailing the governor’s actions but calling for a review of the state’s “dysfunctional” death penalty process.

“We look forward to working with the governor on determining whether it is possible to resolve all the deficiencies in California’s capital punishment system,” the statement said.

Kent Scheidegger, legal director of the pro-capital punishment Criminal Justice Legal Foundation, said Wednesday he had expected previous Gov. Jerry Brown to issue reprieves before leaving office. Scheidegger said he wasn’t shocked when Newsom, an open critic of the death penalty, announced Tuesday that he would.

Scheidegger said there may be a legal challenge under Proposition 66 to Newsom’s rescission of the lethal injection protocol and to his dismantling of the death chamber. But the moratorium, he said, is on solid legal footing.

“It’s gratuitous cruelty to the families of victims,” Scheidegger said. “We’re fighting this very long legal battle and we had a light at the end of the tunnel ... It was pulled out from underneath us.”

Newsom also has the power to commute sentences. But he can only do so unilaterally for inmates convicted of just one felony.

The California Supreme Court must approve of commutations involving inmates with two or more separate felonies. After complaints that the court’s guidelines for approval were opaque, the justices last year issued a nine-page minute order laying out their role in considering commutation and pardon recommendations.

Still, in the final days of Brown’s tenure, the court rejected 10 of his clemency requests without explanation.

“We need to understand that more fully before we move forward with next steps, potentially around commutation,” Newsom said Wednesday.

Democratic lawmakers Wednesday also introduced legislation that would put the death penalty issue before voters again in November 2020. Michael Ramos, the former district attorney of San Bernardino County and a leader of the Proposition 66 campaign, said death penalty proponents were discussing a possible ballot measure “as we speak.”

Ramos, like Gardner, said he expects county prosecutors to continue charging death penalty cases despite the executive order. “I think that’s going to be another issue they’ll have to deal with,” Ramos said. “But in the appropriate cases, that’s the only path to justice.”

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