And as liberal as California voters are generally, as recently as 2016 they rejected a ballot measure that would have abolished capital punishment, and approved another one to fast-track executions.
These divisions, experts say, are setting the backdrop for what could be a contentious fight as Mr. Newsom takes new steps beyond the moratorium to abolish capital punishment.
For now, the moratorium amounts to temporary reprieves for each of the 737 men and women on California’s death row, which will last for the duration of his time as governor.
“It’s got to be really confusing for the average citizen who sees both things going on and doesn’t understand how all of the above can be occurring,” said Michele Hanisee, the president of the Association of Deputy District Attorneys in Los Angeles County. She is seeking a death sentence in one of her cases: the man accused of being a serial killer, Alexander Hernandez, who is charged with killing five people in a shooting rampage in the San Fernando Valley in 2014.
“The simple answer is this: The district attorneys of the state of California took an oath to uphold and follow the law,” Ms. Hanisee said. “I think the governor probably did too, but he doesn’t care.” The governor, she added, does “not have the legal authority to tell them not to seek death or not to follow the law.”
New death sentences in California have declined in recent years; 2018 was a record low, with five new sentences. The drop aligns with a national trend, as public support for capital punishment has waned and juries have been reluctant to impose death sentences in the face of evidence of racial disparities and high-profile exonerations. Before Mr. Newsom’s moratorium, 20 other states, including most recently Washington and Delaware, had abolished the practice.
Public support for capital punishment across the country has dropped substantially since the 1990s, according to polling data from Gallup.
California, while maintaining a large death row, has not executed anyone since 2006. There were longstanding legal challenges to the state’s lethal injection protocol that had halted executions even before Mr. Newsom’s moratorium.
Many supporters of capital punishment say that while the system can be reformed to reduce racial disparities, and thus produce fewer death sentences, the penalty should remain an option for prosecutors and juries in the most heinous of crimes, including some of the cases underway in California.
“The case for the death penalty is the moral part of it,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, an organization in Sacramento that favors the death penalty and supported a ballot initiative in 2016 in which voters approved fast-tracking executions. “For the very worst murderers, nothing short of execution is adequate.”
Research that shows racial disparities in the capital punishment system — that black and Latino men are disproportionately sent to death row — has led to an acknowledgment that the system is flawed, and is at the heart of calls for abolition. But in California, supporters of the death penalty argue that white men are charged with committing some of the most egregious crimes, including Michael Gargiulo, the Hollywood Ripper suspect, or Mr. DeAngelo, who was once a police officer.
“Gargiulo is a white dude,” Ms. Hanisee said. “Golden State Killer, he’s a white guy who was a cop.” She also noted that many of the 24 death row inmates who have exhausted all of their appeals — and would be next in line for executions if they were proceeding — were white men.
“Of the 24 or so who are presently eligible for execution, half of them are white men,” she said. “So let’s execute them.”
In an interview, Mr. Newsom said that his administration was considering several new steps to dismantle the state’s capital punishment system and that his moratorium was a first step on what he hoped was a path that ended with abolition. He said his advisers were studying how he could commute the sentences of current death row inmates to life without parole. Mr. Newsom has the power to commute sentences in which the inmate has only one felony, but more than half of the death row population has at least two felonies; to commute those sentences would require approval from the State Supreme Court.
Mr. Newsom’s advisers are focusing on the Supreme Court’s decision to block several pardons or commutations — though not for death row inmates — issued by Gov. Jerry Brown before he left office in January. Those rejections were the first time in decades the court had blocked a governor’s commutations, and Mr. Newsom has asked the court for an explanation.
He hopes the explanation will offer some guidance “that will allow us to form better judgment on next steps if we want to look to commutations on the capital punishment side.”
“Life without the possibility of parole. We are not releasing anybody. We are by no means pursuing that,” Mr. Newsom said.
Mr. Newsom also said he was discussing with the attorney general’s office what role the state could play in blocking prosecutions of new death sentences. But legal experts say this power is limited: The state could decline to defend capital cases on appeal, but it does not have the power to order district attorneys, who are elected at the county level, to not seek death.
“He does not have the authority to tell prosecutors or even the attorney general what the policy is going to be with respect to individual prosecutions,” said Shilpi Agarwal, a staff attorney with the American Civil Liberties Union in San Francisco. “As long as the death penalty is on the books, they are free to seek it in any individual prosecution.”
One possibility is that the attorney general could take cases away from local prosecutors. But experts say that is unlikely and would be unprecedented.
“I have not seen any indication from our attorney general that they want to impose the governor’s view and take cases away from us so that we cannot seek capital punishment,” said Anne Marie Schubert, the Sacramento County district attorney, who is part of the prosecution in the Golden State Killer case.
Ms. Schubert added that “capital punishment is the law in California, and just because Gavin Newsom has a personal opposition to it doesn’t mean that we as prosecutors abandon our obligation to enforce the law in the appropriate cases. I’m not this zealot about the death penalty, but it is the law.”
Those who oppose capital punishment, like Mr. Newsom and Ms. Agarwal, say that no matter how gruesome a particular case is, it does not justify perpetrating a system they see as biased, with the possibility of wrongful convictions. Almost immediately, Mr. Newsom’s moratorium had an impact nationally, with candidates running for the Democratic nomination for president in 2020 coming out against capital punishment.
“When you are putting a moratorium on the largest death row in the Western Hemisphere, it’s going to have an impact, we believe, on the national debate,” Mr. Newsom said. “This was not just about California. It’s not just about the situational nature of prosecutions in this state. It’s about a deeper question about our values and who we are.”
All of this appears to be heading to a new ballot initiative in California, perhaps as soon as 2020, about whether or not to keep capital punishment.
“The deeper question is, when is this ripe for reconsideration at the ballot?” Mr. Newsom said.
If there were to be another fight at the ballot over capital punishment, Californians would most likely hear a lot about the Golden State Killer and other terrible crimes.
“We will talk about the facts of these cases and what these people did,” Ms. Hanisee said. “And if the California voters vote to get rid of the death penalty, so be it. But it needs to be an honest debate.”
Source: The New York Times, Tim Arango, May 9, 2019
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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
