The governor says no one would be released or become eligible for parole; 382 of the commutations need the court’s recommendation, and prosecutors and victims’ groups are urging the justices to say no.
Gov. Gavin Newsom told the California Supreme Court on Thursday that he intends to commute the death sentences of all 548 people awaiting execution in California to life in prison without the possibility of parole, the California Courts Newsroom and the governor’s office reported. The move, if completed, would empty the largest death row in the Western Hemisphere and would be the largest act of clemency in American history, according to the Death Penalty Information Center.
None of the commutations has taken effect. Under Article V, Section 8 of the state Constitution, a governor may not commute the sentence of a person “twice convicted of a felony” except on the recommendation of the Supreme Court, with four justices concurring. The governor’s staff identified 382 people on the list who fall into that category, according to the governor’s filing as summarized by California Today. The remaining 166 do not need the court’s sign-off, but the governor’s office has said none of the commutations will go into effect until “the necessary legal steps are completed.”
Mr. Newsom asked the court to issue its recommendation by the end of the year so that he can act before his term ends. Governor-elect Xavier Becerra takes office on Jan. 4. Mr. Becerra has pledged to extend Mr. Newsom’s 2019 moratorium, which halts executions but leaves sentences in place.
What the governor says the action would and would not do
According to the governor’s fact sheet, the commutations would not release anyone from prison, make anyone eligible for parole, pardon anyone or change any conviction or restitution order. The people on the list are “specifically excluded,” the fact sheet says, from new Board of Parole Hearings regulations on commutation and resentencing that took effect Oct. 1.
The fact sheet says 376 of the 548 are still awaiting appointment or funding of state habeas counsel. California has not carried out an execution since Jan. 17, 2006.
In an open letter addressed to all Californians, Mr. Newsom, a longtime opponent of capital punishment, wrote that “state-sanctioned killing is incompatible with California’s values, undermines the foundations of our legal system, and diminishes each of us,” CalMatters reported. He wrote that he had considered commuting only some sentences but concluded that distinguishing among cases “would inadvertently create two classes of murder victims.” He also wrote: “These offenders will die in prison but not by our hand.”
The letter acknowledges that voters have kept the death penalty on the books. Californians rejected repeal measures in 2012 and 2016 and in 2016 approved Proposition 66 to speed up executions. Mr. Newsom wrote that the action “does not repeal the death penalty” and that prosecutors, juries and courts retain the discretion to seek and impose it.
Prosecutors, sheriffs and victims’ advocates object
The announcement drew swift criticism from district attorneys, law enforcement groups and victims’ advocates, many of whom argued that one executive act should not displace hundreds of jury verdicts, according to statements compiled by ABC10.
“With the stroke of a pen, Governor Newsom has disregarded the decisions of hundreds of jurors and judges, and the anguish of families who lost loved ones to the worst crimes imaginable,” said Jeannine M. Pacioni, the Monterey County district attorney and president of the California District Attorneys Association. Greg Totten, the association’s chief executive, said the governor “has turned an extraordinary constitutional safeguard into a sweeping instrument of personal policy.”
Sacramento County District Attorney Thien Ho said a blanket commutation “disregards the individualized facts and circumstances of each case” and “stands in direct conflict with the will of California voters.” Orange County District Attorney Todd Spitzer called the commutations “mercy for the wolves,” according to a statement cited by California Today.
Anne Marie Schubert, a former Sacramento County district attorney who now leads the Criminal Justice Legal Foundation, said victims’ families had not been notified and pledged to challenge the commutations before the Supreme Court. “The Constitution gives the Supreme Court a real role here, not a rubber stamp,” she said.
The California Crime Victim Assistance Association, which trains victim advocates, said that regardless of views on capital punishment, “victims deserve advance notification of actions that affect their cases,” citing the victims’ rights provisions voters added to the Constitution in 2008 under Marsy’s Law. The governor’s office said victim advocates are working to notify victims, survivors and next of kin directly.
Families are not of one mind. Marc Klaas, whose 12-year-old daughter, Polly, was kidnapped from her Petaluma home and killed in 1993, told CalMatters before the decision that the prospect “upsets me terribly.” Polly’s sister, Jess Nichol, said in a statement that she had come to believe execution would not help her recovery. “The system tells survivors that execution matters to our healing. It doesn’t,” she said. The commutation of Richard Allen Davis, who was convicted of Polly’s murder, is among those that require the court’s recommendation.
Supporters point to cost, delay and disparities
The California Public Defenders Association thanked Mr. Newsom in an open letter, arguing that the death penalty has been imposed unevenly from county to county and has not delivered finality for families. “Families do not all share one view of what justice requires, and a sentence that is certain, and that ends the cycle of appeals, is a more honest promise than one the state has not kept,” the association wrote.
Contra Costa County District Attorney Diana Becton said in a statement released by the clemency campaign that the commutations would “save California taxpayers hundreds of millions of dollars over the long term.”
What the court will weigh
The justices’ role is narrower than an up-or-down vote on the death penalty. In a 2018 statement of its procedures, quoted in the governor’s filing, the court said a favorable recommendation is “not a recommendation that the Governor grant” clemency but an acknowledgment that the governor “may legitimately consider granting” it, and that its task is to determine whether a grant would be “an abuse of that power.” With one seat vacant, four of the six sitting justices would need to agree.
The Judicial Council’s media office, the California Department of Corrections and Rehabilitation, the American Civil Liberties Union and Erwin Chemerinsky, dean of the UC Berkeley School of Law, did not respond Sunday to requests for comment from The Inquirer.
Graham Ostrowski covers the governor, the Legislature, state agencies and the state budget for the Sacramento Report. More from Graham Ostrowski
