Gavin Newsom’s Clemency Is a Game Changer for America’s Death Penalty

Jurisprudence But there’s still one more hurdle to go. Apu Gomes/Getty Images Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. California Gov. Gavin Newsom’s grant of clemency to the 548 people under a death sentence in his state is a singular event in the history of America’s death penalty. No other governor ever has come close to sparing that many lives. Compare Newsom’s move to other governors who, in the last two decades, have cleared out their state’s death rows. In 2003, Illinois Gov. George Ryan commuted 167 death sentences and granted four pardons. Four years later, Jon Corzine commuted the sentences of the eight people on New Jersey’s death row. In 2011, another Illinois governor, Pat Quinn, commuted 15 death sentences, and in 2022, Oregon Gov. Kate Brown commuted 17. The magnitude of Newsom’s action today overshadows them all. But it’s where death penalty sentences are headed. And as I have explained elsewhere, “Since 1977, governors in 24 states have granted capital clemency 327 times. Indeed, in only ten of the states that still retain the death penalty have governors not granted clemency during this timeframe. Three of them (California, Oregon and Pennsylvania) currently have a moratorium on executions, and another four of them have some of the smallest death rows in the country (Utah, South Dakota, Nebraska and Kansas).” Newsom’s clemency reduced the total number of people on death rows across the country by more than a quarter. It comes in the wake of Christa Pike’s failed execution and at a time when capital punishment is very much on the minds of many Americans. Newsom’s reasons for granting universal clemency are compelling. He has described the state’s death penalty system as “unfair, unjust, wasteful, protracted.” As he explained, “Death sentences are unevenly and unfairly applied to people of color, people with mental disabilities, and people who cannot afford costly legal representation.” And the governor noted that “innocent people have been sentenced to death in California.” Those reasons echo concerns expressed by the other governors who have granted mass clemencies to people under death sentences. For example, as Oregon’s Brown explained when she exercised that power, the death penalty is “an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.” Illinois’ Quinn commuted all existing death sentences the same day he signed a bill abolishing capital punishment in his state. He said: “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure that justice is achieved in every case.” But unlike Brown’s and Quinn’s efforts, more work is needed to complete what Newsom started. Under a California law governing clemency, the California Supreme Court has to approve the commutations of any of the 548 people with multiple felony convictions. This provision was added to the state constitution in 1879, as an alternative to a proposal to forbid the governor from using their clemency power in cases where an offender had committed more than one felony. But it was clear at the time it was adopted that it did not empower “the justices of the court to supplement or supplant the Governor’s executive clemency authority.” In 2018, the California Supreme Court explained that the idea was that “the court could serve as a check on the Governor within the confines of its traditional judicial role, determining whether there exists a legitimate basis on which the Governor could choose to grant clemency to the applicant.” As the court put it, “Article V, Section 8 of the California Constitution does not require the justices of this court to determine whether, in the view of each justice, an applicant deserves clemency, whether based on claimed innocence of the crime, rehabilitation, mercy, or other grounds.” The court’s role is exceedingly limited. The justices ask only whether the governor’s actions are an “abuse” of his broad constitutional authority, such as corruption or conflict of interest. The court’s narrow role is consistent with its long-standing view that the governor’s clemency power is “virtually unlimited.” And as an amicus brief filed by California’s death penalty defense agencies observes that “commuting some, but less than all, death sentences would not remedy the injustices the Governor wishes to address; it would make them worse.” The brief argues that since Newsom has made clear that in view of the systemic problems that have long plagued California’s death penalty system, “universal clemency based on systemic factors is more appropriate than grants of clemency based on individual circumstances … the clemency grants he has asked this Court to recommend would buttress those he has already unilaterally issued, to complete his goal.” In addition, the state Supreme Court has regularly approved gubernatorial clemency decisions. In the past few months, it has given the green light to commutations of sentences of life without parole so that they “can be eligible for a parole suitability hearing.” Now, the California Supreme Court has a chance to complete Newsom’s use of the clemency power to spare lives. It should do so expeditiously. When the court approves it, Gov. Newsom will move California, and the United States, one step closer to ridding itself of capital punishment. California Death Penalty Jurisprudence Incarceration