Gov. Gavin Newsom is making an admirable move to commute the death sentences of all 548 people on death row in California.
“I take this action because I firmly believe that state-sanctioned killing is incompatible with California’s values, undermines the foundation of our legal system, and diminishes each of us,” Gov. Newsom wrote.
If successful, it’d be the largest mass commutation of death sentences in U.S. history. But that’s a big if for about 60 percent of the people on death row because California’s constitution prevents the governor from unilaterally commuting the sentence of anyone convicted of two or more felonies without a recommendation from at least four justices of the California Supreme Court. Among the 548 people on death row, 382 have more than one felony conviction, so the outcome of those cases isn’t guaranteed.
Newsom’s announcement has drawn criticism from victims’ rights advocates, and their objections are understandable. It is reasonable for victims to desire finality. It is also reasonable to view execution as a proportionate punishment for the most abominable of crimes. But California’s death penalty fails to deliver on those grounds. Instead, it results in decades of costly litigation that cannot be shortened without risking wrongful executions.
A death sentence in California is far from final, and in practice it is unlikely ever to be carried out. California’s death penalty was struck down by the courts in 1972, restored through legislation in 1977 and then strengthened by a ballot initiative in 1978.
In the nearly five decades since, California has carried out just 13 executions, the most recent of which was in 2006. After more than a decade without an execution, Gov. Newsom placed a moratorium on executions in 2019. Governor-elect Xavier Becerra has stated that he intends to maintain that moratorium.
Even if a future governor lifted the moratorium, the capital punishment system would, by necessity, be drawn out and expensive. Capital sentences in California are subject to an automatic direct appeal to the California Supreme Court, followed by several other optional opportunities for appeal.
In 2016, California voters rejected Proposition 62, which would have abolished capital punishment and approved Prop 66, which sought to expedite the appeals process by imposing a five-year deadline for state courts to complete their review of death sentences.
A 2017 ruling from the California Supreme Court largely upheld Prop 66 but concluded that the proposition’s five-year deadline was a non-binding “exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice.”
More fundamentally, though, it is undesirable to expedite executions because it would increase the risk of wrongful executions. There is no worse outcome in the criminal justice system than wrongful executions. They deny justice to victims, fail to hold offenders accountable, and deprive innocent people of their lives.
While it may be tempting to look at individual cases that are particularly heinous or where the evidence is strong and conclude that we should allow for expedited executions in those circumstances, that position is untenable in practice. Our justice system has one standard of proof in criminal cases—proof beyond a reasonable doubt. Even under that high standard, the system doesn’t always get it right.
Consequently, we cannot compromise on the need to provide ample opportunity for appeals, but a drawn-out process comes with costs too. Since 1978, California has spent an estimated $4 billion to $6 billion on capital punishment. Beyond monetary costs, decades of hearings and reversals deny victims’ families the finality that supporters of the death penalty seek.
The wisest policy would be to abolish the death penalty for good, but only California voters can do that. Short of that, Gov. Newsom’s commutations are very welcome news.
Vittorio Nastasi is director of criminal justice policy at Reason Foundation.