California's next governor could be forced to make a life-or-death decision that the state's top executive hasn't faced in over a decade: whether to spare an inmate facing execution.
There are nearly 750 people on death row at San Quentin State Prison, more than any other state, and decisions made by the next governor will help set the pace of executions going forward. 5 of the 6 top candidates oppose the death penalty. But few say they'd use the office's commutation power to broadly move inmates from death row to life in prison.
"Unless Jerry Brown steps in or one of these candidates for governor steps in, I think there's going to be executions in California," said Erwin Chemerinsky, the dean of UC Berkeley Law School. "It seems like it's a matter of time."
California hasn't executed an inmate since Clarence Ray Allen on Jan. 17, 2006. And more than 1/2 of the inmates on California death row have waited more than 20 years since their convictions, according to state data. In 2016, Golden State voters narrowly approved a ballot initiative to speed up the death penalty, Proposition 66, and several legal barriers to execution have fallen since then.
It's too soon to say for sure when - or whether - executions will restart. Prop 66 was upheld by the state Supreme Court last year, and the state corrections department put forward a new single-drug execution procedure in January. In March, a state judge in Marin County lifted one of several legal injunctions against carrying out executions.
Still, other legal barriers remain, including a long-standing federal court case in San Francisco questioning the legality of lethal injections. The judge handling that case, Richard Seeborg, has issued stays on the execution of roughly 20 California death row inmates who have exhausted their appeals. Any decision to lift those stays could be further appealed, although U.S. Supreme Court precedent makes it difficult to challenge lethal injection procedures.
A California governor hasn't commuted the sentence of a death row inmate since Ronald Reagan spared convicted murderer Calvin Thomas in 1967. But several anti-death penalty governors around the country, including Martin O'Malley in Maryland and Pat Quinn in Illinois, have issued blanket commutations removing inmates from death row in recent years.
Lt. Gov. Gavin Newsom, the frontrunner in the race, said he wasn't planning to follow in their footsteps. Instead, he wants to put the issue of the death penalty "back on the ballot" even though Californians have rejected a repeal measure twice in the last 6 years. Newsom thinks he could change that by running a stronger anti-capital punishment campaign.
"We need to have a more sustainable conversation with the public, and I would like to lead that," he said. "We haven't had a governor, with respect, that's led this conversation. There's been a lot of timidity on the death penalty."
Antonio Villaraigosa, the former mayor of Los Angeles, said he would be willing to commute the death sentences of individual inmates "where the record shows that that would be appropriate." However, "the next governor's going to have to enforce the law, and the death penalty's the law of the land," Villaraigosa stressed.
State Treasurer John Chiang, a Democrat, and San Diego County businessman John Cox, a Republican, have both cited their Catholic faith for their opposition to capital punishment. But both said they would respect the pro-death penalty decision in the last ballot initiative.
"I am personally opposed to the death penalty and voted for Proposition 62, but as governor, I would enforce the will of the voters," Chiang said.
Former state schools chief Delaine Eastin, who has trailed in the polls, sounded the most willing to make use of commutations. If elected, she said she would want to use the governor's clemency power to commute the death sentences of inmates "who've shown some sense of remorse or some sense of contribution to society."
"I actually think some of them would be better served if they had to live with the consequences of what they did, rather than spending a fortune to put them to death," she said.
The only candidate who personally supports the death penalty is Assemblyman Travis Allen, an Orange County Republican who vowed in an interview to "clean out this death row in California."
"Why should California allow these people the luxury of life when they have taken it so cruelly from so many others?" he asked. "Every single day that these people are alive is another insult to the families of their victims."
Unlike most states, the executive clemency power is limited in California - the state constitution says governors can't commute the sentence of an inmate who has 2 felony convictions unless 4 of the 7 State Supreme Court justices concur. About 1/2 of California death row inmates have 2 or more felonies on their record, experts estimate.
But the high court justices issued an order in March suggesting that they would give governors more latitude on the issue and only intervene if they believed a use of clemency would "represent an abuse of that power." That's a switch from past courts, which have rejected clemency grants based on justices' determinations about the merits of individual cases.
Even without issuing commutations, governors can influence how the death penalty is carried out in other ways, such as the procedures put forth by their corrections department.
Opponents of the death penalty argue that there are still many hurdles to overcome before the state executes another inmate.
"I don't think we're ever going to see an execution carried out in California because there are too many legal and practical obstacles," said Natasha Minsker, the director of the ACLU of California Center for Advocacy and Policy, which has challenged the death penalty.
Kent Scheidegger, the legal director for the pro-death penalty Criminal Justice Legal Foundation and 1 of the authors of Prop 66, said the courts should allow executions to proceed. He scoffed at Newsom's suggestion for another referendum on the issue.
"Are we going to vote on it again and again until he gets the answer he wants?" Scheidegger asked. "That's not asking the voters, that's nagging the voters."
There's at least a possibility that Gov. Jerry Brown, who personally opposes capital punishment, could issue a broad commutation of death row inmates before he exits the stage of California politics. In 2003, for example, just 2 days before leaving office, Gov. George Ryan of Illinois commuted the sentences of all 167 inmates on his state's death row.
Brown's office declined to comment. The governor, a former Jesuit seminarian, vowed to carry out the death penalty during his elections, and he hasn't commuted any death sentences in his 16 years as governor. But in his 20s, Brown joined anti-death penalty protesters singing "We Shall Overcome" outside the gates of San Quentin State Prison as an inmate went to the gas chamber inside.
"The only person who knows what's in Governor Brown's heart on this," Minsker said, "is Governor Brown."
Source: Marin Independent Journal, Casey Tolan, May 1, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde