Gavin Newsom and the New Politics of the Death Penalty

This week, Gavin Newsom, the governor of California, signed an executive order issuing a reprieve to all seven hundred and thirty-seven prisoners on the state’s death row, effectively nullifying California’s policy of capital punishment for the near future. The moratorium, which builds on Newsom’s record of death-penalty opposition, was acknowledged on both sides of the political aisle as a bold move: “an important day for justice,” as Kamala Harris put it, or a declaration of “the terrible message that the taking of innocent life will not be punished to the fullest extent of the law,” as Pat Bates, a Republican state senator from Orange County, said. Eventually, the President felt moved to address the issue. “Friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!” he tweeted. This aimless response, at once grousing and lukewarm, seemed its own testament to the order’s success.

In truth, the boldness of Newsom’s reprieve may be a little overstated. California as a whole has voted against repealing the death penalty, most recently in 2016, when it favored a ballot measure to expedite the process, yet voting patterns show that metropolitan Californians, the core of the state’s blue electorate, decisively oppose it. Meanwhile, in the past two decades, support for capital punishment in murder convictions has collapsed nationwide, especially among Democrats, in line with broader trends. The Pope forbade the practice categorically last year. The European Union won’t admit death-penalty states—opposition was the first human-rights standard that its council adopted—and it prohibits the trade with other nations of goods involved in capital punishment. (The list includes guillotines, whips, “shields with metal spikes,” and, more problematically for the United States, lethal-injection drugs.)

Response to Newsom’s moratorium was mixed even among the families of victims. One mother of a murdered daughter reported being “pleased”; Marc Klaas, the father of a girl notoriously kidnapped from a slumber party and killed, in 1993, was much less so, describing the governor’s action as “Trumpian” in its willingness to curb practice to one’s “own personal philosophy.” There is truth to that claim. Newsom, in presenting his order, pointed to alarming inequities in the way that capital punishment is meted out. (The race of both perpetrators and victims has repeatedly been shown to correspond to the likelihood of a death sentence; an A.C.L.U. study of California found wide geographic variance in sentencing, suggesting that a convict’s fate may depend on the county where he or she happens to be tried.) But the governor also leaned heavily on the language of personal morality. “I will not oversee execution of any person,” his order said. In a press conference, he elaborated, “This is about who I am as a human being. This is about what I can or cannot do.”

The morality language—“a very emotional place,” by Newsom’s own description—was a strident turn in the announcement. Yet it wasn’t amiss. This country’s predilection for the death penalty, which remains in the statutes of thirty states, has long rested on moral, not practical, grounds. Conceptually, the practice is barbaric, emerging as it does from crude judicial logic: a life for a life. In practice, it’s a costly mess, since capital trials are more expensive than other trials, and death-row incarceration is more expensive than that of the general prison population. (Newsom put his state’s death-penalty-related expenditures at five billion dollars since 1978—a period during which thirteen people have been executed.) Many opponents, too, are rightly troubled by the idea of a state holding legal authority to determine who lives and who dies. Supporters, on the other hand, appeal to moral impulse: they believe that certain people should forfeit their lives for their crimes. Newsom wasn’t being inappropriately subjective, in that sense, in citing his personal morality. He was challenging death-penalty justifications in the “emotional” place where they live.

If the norms of discussion around capital punishment were to take a practical turn, it is easy to imagine Newsom’s push for reform reaching further. A truly bold move would challenge not only the death penalty but its de facto fallback, life imprisonment. Today, it costs an average of eighty-one thousand dollars a year to keep a prisoner incarcerated in California. In 2016, the state—which has one of the lower incarceration rates in the country—was holding more than a hundred and thirty thousand people in state and federal correctional facilities, a third of whom were serving life sentences. Anyone can do the napkin math. The cost of life imprisonment is relatively less than the cost of death row, according to a Florida investigation, from 2000, but it’s not peanuts, and long punishment may not help the public in proportion. Many countries of the European Union favor shorter sentences combined with intensive resocialization and rehabilitation programs; a study of the Dutch and German systems, in 2013, suggested that they were more effective in reducing crime than the United States’ mass-incarceration model. If we were serious about threats to society, we would support the most effective punishments, not the most severe.

As it is, Newsom’s reprieve is a gesture of limited reform and a gesture of intractable executive power, too. California—once a mining center, now the world’s fifth-largest economy and home to an outsized share of the country’s trade ports, agriculture, brain trust, and white-collar growth industries—has never lacked for confidence in its own importance. Newsom’s predecessor, Jerry Brown, came to regard his state as a useful bulwark against a Republicanized Washington, D.C. Newsom, following Brown’s lead in that respect, stands on a history of defiance that has indulged separatist, occasionally even secessionary, thinking in the state. His restive gesture is in line with the mood of the public that he represents; he is giving voice to a political resentment that many Californians feel.

If this angst-channelling sounds familiar, it’s no wonder. One of the alarming facets of the Trump Presidency is the way that it has helped to frame oppositional practice as the heart of statecraft. No longer is policy about what we’re doing; it’s about what the other team is not doing (or not letting us do). Politics, popularly described as the art of the possible, has become the practice of invading ground and digging trenches deep. For Newsom, as a new governor, this defiant energy has proved politically and morally fruitful. But, unsettlingly for Democrats, the same logic and moral mandate applies equally across the board. How does one respond when a red governor does the same—except to fire back with more local resistance, more atomization, more dissolution of the shared project of trying to build a country? Newsom’s reprieve is good, and yet the message that it sends about the state of government is grim.

Source: The New Yorker, Nathan Heller, March 15, 2019. Nathan Heller began contributing to The New Yorker in 2011 and joined the magazine as a staff writer in 2013.

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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