Moratorium on executions could end if Newsom loses

One of the first actions Gavin Newsom took as governor was to declare a moratorium on executions in California, which now has 699 inmates on the nation’s largest Death Row. If Newsom is recalled from office Sept. 14, most of his prominent opponents say they plan to reverse that moratorium, though it’s unclear whether they would actually get to oversee any executions.

“Californians voted to retain the death penalty. This man came out and he ignored the will of the people,” Larry Elder, the Los Angeles talk show host who has led recent polls of replacement candidates, told an interviewer for the CalMatters news group. He was referring to ballot measures in 2012 and 2016 that would have repealed the state’s death penalty law.

“I strongly support the death penalty in California . ... It should never have been changed,” Kevin Faulconer, the former San Diego mayor, told KQED radio in San Francisco.

“I’d do what Newsom said he was going to do — respect the will of the voters,” Assembly Member Kevin Kiley, RRocklin (Placer County), said in a statement provided by his campaign.

Caitlyn Jenner, the reality TV star and former Olympic athlete, also says she favors the death penalty. The most notable exception among Newsom’s foes is John Cox, the San Diego County businessman and unsuccessful Republican candidate for governor in 2018, who has said his Catholic faith led him to oppose capital punishment.

Unlike other policy changes that would require approval from the Democratic-controlled Legislature, a new governor could repeal the moratorium with the same type of executive order that Newsom used to impose it. Sponsors of the recall raised the issue in their petitions and state ballot arguments, saying Newsom had “unilaterally overruled the will of the people regarding the death penalty.”

Californians have voted to retain the death penalty four times in the last 49 years, though the majorities were much smaller in 2012 and 2016 than they had been in 1972 and 1978. In 1986, the state’s voters, for the first time in California history, denied new terms to three state Supreme Court Justices, Chief Justice Rose Bird and Justices Joseph Grodin and Cruz Reynoso, in a campaign that focused on the court’s reversals of death sentences.

Yet the issue has not been a prime topic in the recall campaign, which has focused on Newsom’s handling of the coronavirus pandemic and the reopening of public schools, his opponents’ demands for lower taxes, less environmental regulation and more

sweeps of homeless encampments, and the governor’s efforts to link his rivals to former President Donald Trump.

Those issues have more of an impact on most Californians’ daily lives than capital punishment. Voters appear to care more about keeping the death penalty on the books than carrying it out.

Under its current laws, the state executed 13 prisoners from 1992 through January 2006. A federal judge then ruled that California’s execution procedures, equipment and staff training were so flawed that anesthesia would fail and an inmate would remain conscious and in agony while dying. No one has been put to death since then, while attempts to revise the procedures have remained tied up in court.

Since California’s death penalty was reinstated by lawmakers in 1977 and expanded by the voters in 1978, the leading causes of death among condemned prisoners have been illness and suicide. And voters in 2010, 2014 and 2018 decisively elected two governors, Jerry Brown and Newsom, who were outspoken opponents of the death penalty.

The 699 Death Row inmates include 31 who have lost all appeals of their convictions

and sentences. Newsom’s March 2019 order blocked their executions, dismantled the execution chamber at San Quentin State Prison and withdrew the changes the state had proposed in lethal execution procedures during the court case.

Proposition 66, which voters approved in 2016 while refusing to repeal the death penalty, sought to speed up executions by limiting appeals as well as regulatory review of new lethal injection methods. But no such method had won court approval before Newsom’s order. His successor after a recall could also face renewed legal challenges from prisoners, based on federal laws and any newly discovered evidence they offer. It is not clear how long those issues would take to resolve, or whether the courts would clear the way for any executions to take place by January 2023, when Newsom’s successor would leave office unless he or she was elected to a new term.

“Will the new governor have the political will to put the needed priority on these efforts? Who can say?” observed death penalty advocate Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and author of Prop. 66.

“An argument in favor would be that carrying out executions sends a clear and highly visible message that California is once again determined to dish out just deserts to criminals, and the nambypamby Brown/Newsom approach is history,” he said. “On the other hand, the opposition remains large and determined enough that considerable political capital would have to be spent in the effort.”

But a death penalty opponent said a recall could lead to a reopening of the execution chamber.

While state law normally requires officials to put new rules on hold for 180 days to allow for public comment and take additional time to assess those comments, he said, the law also provides “regulatory shortcuts,” said Robert Sanger, a Santa Barbara defense attorney and board member of Death Penalty Focus, a Sacramento nonprofit.

Recalling the final months of the Trump administration, when 13 prisoners were put to death in an unprecedented wave of federal executions, Sanger said Californians under an outgoing post-recall governor could also see “a line of people to be executed.”