Newsom asks court to back clemency for 382 of 548 on death row

Gov. Gavin Newsom announced on November 5 that he has decided to commute all 548 California death sentences to life without the possibility of parole, and he asked the California Supreme Court to recommend clemency for 382 of those people by the end of the year. The constitution requires that recommendation for anyone with more than one felony conviction, according to the governor’s letter to the court.

The governor’s open letter says the 548 people under sentence of death make up “the largest death row in the Western Hemisphere.” He wrote that he had concluded “attempting to distinguish among crimes and offenders for clemency would inadvertently create two classes of murder victims.” His clemency page says the commutations will not go into effect until the necessary legal steps are completed.

What the court has to decide

Article V, section 8, of the California Constitution requires a recommendation from the Supreme Court, with at least four justices concurring, before a governor grants a commutation to a person with more than one felony conviction. The governor’s explanatory statement says the court has described its role as deciding whether an act of clemency would be “an abuse of that power.”

The statement says the court’s recommendation does not reflect its view of the merits. It quotes the court’s 2018 procedures describing a recommendation as an “acknowledgment that the Governor may legitimately consider granting the application.”

The other 166 people, the difference between 548 and 382, are not on the list of recipients for whom the governor requested the court’s recommendation. The governor asked Chief Justice Patricia Guerrero and the associate justices to act by the end of the year so he can act before his term ends.

The statement says staff identified the 382 by reviewing California Department of Justice criminal history records for every condemned person, counting felony convictions before or after the death sentence. For people with a single California felony, staff also checked federal records for convictions in other states. The governor did not review clemency applications and said he will not, and the statement says he did not consider individual circumstances beyond the death sentence and the number of felony convictions. No Board of Parole Hearings recommendations were included.

What the commutations do and do not do

The governor’s fact sheet says no one is released, made eligible for parole, pardoned or exonerated. It says the underlying convictions and restitution orders remain in place. People commuted under the action are excluded from the Board of Parole Hearings’ new commutation and resentencing regulations. In his letter, the governor wrote that the action “does not repeal the death penalty” and that the power to repeal it “rests with the Legislature and voters.”

The fact sheet lists these figures for the condemned population:

• 529 men and 19 women are under sentence of death.
• 29 people are awaiting appointment of appellate counsel.
• 376 people, in 378 cases, are awaiting appointment or funding of state habeas counsel.
• Since voters passed Proposition 66 ten years ago, 5 people have been appointed counsel, after an average wait of 29 years.
• 220 people have waited 15 years or more for habeas counsel, and 139 have waited 20 years or more.
• 45 people would be immediately subject to execution without the moratorium.

California’s last execution took place on January 17, 2006, the fact sheet says. Newsom signed the moratorium on March 13, 2019. The fact sheet says no major operational change is expected at the Department of Corrections and Rehabilitation, because the state previously dismantled the physical death row at San Quentin and integrated condemned people into the broader prison system.

Prosecutors respond

The California District Attorneys Association’s president, Monterey County District Attorney Jeannine Pacioni, said “the Governor has substituted his personal beliefs for all of those judgments,” according to KMPH. San Luis Obispo County District Attorney Dan Dow called the decision “a sickening abuse of power” in the same report.

The governor’s letter acknowledges that “California voters have voted to keep the death penalty on the books.”

The governor’s office said it would notify all California district attorneys and the Office of the Attorney General of the proposed action, and it provided copies to the Habeas Corpus Resource Center, the Office of the State Public Defender, the California Appellate Project and the federal public defenders’ offices that represent people sentenced to death. The Department of Corrections and Rehabilitation’s victim services office will notify registered victims of the proposed action and provide information and services once the commutations are issued.