Was the California moratorium on executions undemocratic? Maybe it doesn’t matter.
Yesterday, California Governor Gavin Newsom imposed an indefinite moratorium on the death penalty, arguing that the racial disparities, cost, and false convictions make the punishment immoral. He issued an executive order that gives a reprieve from execution—though no chance for release—to the 737 people on California’s death row, who represent about one-quarter of the national death row population. The order also annuls California’s lethal injection protocol and closes the execution chamber at San Quentin State Prison. “I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom wrote in prepared remarks. [Scott Wilson and Mark Berman / Washington Post] “I know people think eye for eye, but if you rape, we don’t rape,” he said. “And I think if someone kills, we don’t kill. We’re better than that.” [Tim Arango / New York Times]
The move has been seen as mostly symbolic, because legal challenges have stalled executions in California. But death penalty opponents hope that the governor’s action will add momentum to efforts to end executions in other states. [Tim Arango / New York Times] Newsom cited a Los Angeles Times editorial that reported that 164 falsely convicted people across the country have been freed from death row since 1973. He also pointed to a Santa Clara University Law Review study that found that people convicted of killing white people were more likely to be sentenced to death than people convicted of killing Black or Latinx people. [Phil Willon / Los Angeles Times] The Intercept reported that, since California reauthorized the death penalty in 1978, 79 people have died awaiting execution, and 26 have killed themselves.
Criticism of the moratorium stresses that it seems to run counter to the expressed will of California voters, who over the last six years have rejected two ballot measures to repeal the death penalty and instead favored speeding it up. Last month, the association representing deputy district attorneys in Los Angeles County accused elected officials of foot-dragging on executions, saying they “smugly substitute their own values over the ratified votes of the majority.” Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said Newsom was “following in the footsteps of other governors who abused this power because they were frustrated by a law that they just personally disagreed with.”
The Daily Appeal asked Cassy Stubbs, the director of the ACLU Capital Punishment Project, if she believes the action was undemocratic. “I think the electorate in California has very narrowly just missed repealing the death penalty,” she said. “We live in a system of government that has roles for the judiciary, legislature, and executive, and I think it’s wholly appropriate, especially in a system like California, where we’ve seen so many problems— racial problems, innocence problems— that a governor will step in and say enough is enough.” Stubbs added that governors in other states have granted clemency to large numbers of people on death row for decades.
“By and large, the death penalty is not a popularity question, just like how questions about whether something is constitutional are not decided by popular vote,” Stubbs continued. “We have seen the public moving against the death penalty but at the end of the day the role of the executive and the courts is to make sure the system is safe and fair and nondiscriminatory, and it’s been failing on all those keystone markers.”
The Daily Appeal asked Professor Ekow Yankah of the Benjamin N. Cardozo School of Law whether death penalty policy should be up to the populace. “The racial injustice in the death penalty makes it a poor candidate for democratic tools, at least without serious fixes,” he wrote in an email. “The very justification of democracy is that we are all intertwined in a joint civic project, and our voice is both our method of participating and a way of binding us. But where something as important as who the state kills is so riddled with racism, it undermines, at least for large portions of the demos, the justificatory claim.”
After a 40-year experiment, it’s clear that we cannot impose the death penalty fairly, says Stubbs. “We can’t shake the problems of racial bias and bad lawyering,” and it doesn’t achieve its goals. Even Donald Heller, who wrote the 1978 ballot initiative that created California’s current death penalty law, was thrilled to see it halted. Heller has said that he was dismayed at the way the law was applied, calling it “a colossal failure.” When he heard about Newsom’s moratorium, he said, “I applaud what he’s doing. It shows courage and a belief that capital punishment should eventually be abolished.” [Liliana Segura and Jordan Smith / The Intercept]
“Five billion dollars could have bought a lot of justice for murder victims that didn’t have their murders investigated,” Newsom said yesterday, referring to the money spent on the death penalty. “Five billion dollars could have bought a lot of justice to people that had inadequate representation. … Five billion dollars could have bought a lot of justice in training to right the wrongs of a criminal justice system that is skewed against black and brown people.” [Liliana Segura and Jordan Smith / The Intercept]