Death Penalty Suspended in California?

In California, Gov. Gavin Newsom is betting that a temporary suspension will lead to the abolition of the death penalty.

California Gov. Gavin Newsom likes to be a pioneer. As mayor of San Francisco, he celebrated same-sex marriages beginning in 2004. Today, he announced a temporary suspension of executions in California until 2023. While President Donald Trump regularly proclaims the “usefulness” of the death penalty, and Southern states like Texas, Florida and Georgia continue to conduct regular executions, Newsom chooses to copy his counterparts in Pennsylvania, Washington and Oregon by declaring a temporary moratorium. This is a historic decision in America’s most populous state. There are almost 740 inmates on death row in California, a national record, and the state has had a fierce debate about the death penalty for more than half a century.

In California, the governor is directly involved in death penalty proceedings through his pardon power. When a person convicted and sentenced to death has exhausted all appeals, his or her lawyer turns to the head of state government for a delay or to commute the sentence to life imprisonment. Governors have long been the ultimate judge in criminal cases. The state archives are packed with letters trying to influence the governor’s decisions. Nobody was more split on the subject than Democratic Gov. Edmund “Pat” Brown between 1959 and 1967. He had been a supporter of the death penalty. But as governor, the scope of miscarriages of justice led him to change his mind. The case of Caryl Chessman, a petty criminal sentenced to death in 1948 for kidnapping and who became an author and lawyer while in prison, caused major difficulties for Brown. Since Chessman already had a criminal record, Brown could not commute his sentence without the approval of the Supreme Court, which refused. The governor then tried unsuccessfully to convince the California legislature to abolish the death penalty. Chessman was executed in the gas chamber in 1960.

A Violent Campaign

In November 1966, Gov. Brown lost to Republican Ronald Reagan in an election which marked the rise of the new right. This movement defended law and order and harsher punishment in the face of crime and disorder that resulted from social and political protest. The death penalty, therefore, seemed to be its ultimate symbol. When the California Supreme Court declared the death penalty unconstitutional in February 1972, Reagan himself led the popular initiative referendum to restore it. Two-thirds of California voters approved the measure, burying political death penalty abolitionism for decades. It was California’s Supreme Court which fought the return of executions, which had been suspended since 1967. Republican Gov. George Deukmejian led an aggressive campaign in 1986 to remove three California Supreme Court justices who were opposed to the death penalty, and they were removed from office by voters. In 1992, the executions resumed.

Death penalty abolitionism would seem to be wiped out in California. The system, however, is gradually getting bogged down. The state has announced strict criteria for lawyers in charge of death row prisoners but has not approved any significant financial compensation. Very few lawyers volunteer for the long years or work needed to prepare difficult appeals to the California Supreme Court or to the federal courts. Those on death row wait decades before their appeals are heard. Only 13 people were executed between 1992 and 2006, first in the gas chamber, and then by lethal injection.

A Difficult Question

Debate on the death penalty resumed again in the early 2000s around three main issues: innocence, the technique of execution and the cost of the system. The risk of judicial error, helped by advances in DNA technology, is leading to the re-examination of numerous cases. In California, the most famous case concerns Kevin Cooper. The African-American prisoner, condemned to death for a quadruple murder in 1983, has exhausted his appeals, but his lawyers believe that the police manipulated some material evidence. Gov. Newsom has just authorized a new analysis. The lethal injection procedure has been challenged in federal court since 2006. Death penalty opponents have proved that prison staff are not competent to administer lethal injections without causing pain. Gov. Arnold Schwarzenegger had a new execution chamber built and new procedures were adopted that were not legalized. Finally, an official 2008 report condemned the cost of the entire capital punishment system.

In 2012 and 2016, Californian voters were twice offered a chance to abolish the death penalty. On each ballot, a substantial majority emerged to retain the death penalty. One of the reasons for the failure to abolish the death penalty of abolition was the faint-hearted reaction of the state’s highest elected representatives. Gov. Jerry Brown refused to support abolishing capital punishment, as did the state’s attorney general and current presidential candidate, Kamala Harris.

So that’s the difficult political issue that Gov. Newsom tackles today; to suspend all executions for four years, and once again propose that the voters of the largest state in America abolish the death penalty. California could then send a decisive signal to the rest of the country.