No Executions for Foreseeable Future in California as Governor Imposes Moratorium

On March 13, 2019, California Governor Gavin Newsom exercised his authority under the state’s constitution to impose a moratorium on all executions in the state for the remainder of his term in office. Although California’s last execution was in 2006, it remains home to the largest death row in the country with 737 condemned men and women—nearly a third of the total prisoners on death row in the United States. Announcing his decision, Governor Newsom stated that California’s death penalty was “by any measure, a failure,” and that although he believed the state “needed to do more” and “better” for victims of violent crime, the death penalty was not something the state could advance “in an effort to try to soften the blow of what happened.” Governor Newsom explained that the decision to impose a moratorium on carrying out capital punishment so early in his term was for him personally the culmination of a 40-year journey of thinking through the consequences and morality of the death penalty but that the decision was also motivated by voters’ narrow passage of Proposition 66 in 2016, which made the prospect of the state restarting executions more likely. 

In both 2012 and 2016, voters had the opportunity to abolish the death penalty in California at the ballot box—and both times, voted instead to retain the punishment. Most recently in 2016, a bare majority of voters passed Proposition 66, a resolution that aimed to speed up the state’s death penalty process by requiring appeals to be concluded in five years—something that the state’s supreme court later interpreted to be a suggestion rather than a requirement. The new law also exempted the state’s execution protocol from adhering to the procedural requirements of the California Administrative Procedure Act, mooting a lawsuit that challenged how the state's lethal injection protocol was developed. Prior to Proposition 66, this legal challenge had been preventing executions from moving forward. Capital punishment remains a divisive issue in California: while legislators are currently promising to bring the issue of abolition back to the voters in 2020, certain jurisdictions continue to seek new death sentences despite Governor Newsom’s moratorium. In September, the state supreme court rejected appeals brought by death-noticed defendants to preclude the state from seeking the death penalty against them in light of the moratorium on executions. According to Pew Research, the state’s death row has grown by 100 prisoners since the last execution was carried out in 2006. 

At the same time Governor Newsom announced the moratorium, he also directed San Quentin State Prison to decommission its execution chamber. Governor Newsom also stated during the March press conference that he was considering his options for commuting the sentences of those on death row to life in prison but that such commutations were not straightforward given a California law that a majority of the state supreme court needs to approve any executive commutation of sentence for prisoners who were also “twice convicted of a felony.” The state supreme court issued an administrative directive in 2018 stating that it understood its clemency responsibility under the state constitution as only serving as a check to ensure the governor did not abuse his authority. Later that year, however, the court rejected an unprecedented ten pardon and commutation requests from former governor Jerry Brown without explanation. In light of this, Governor Newsom’s independent ability to commute the sentences of those currently on death row to life in prison remains unclear.