SACRAMENTO, Calif. — This story was originally published by Calmatters.
Unable to persuade California voters to do away with capital punishment altogether, the movement to abolish the death penalty is quietly shifting its strategy to shrinking the nation’s largest Death Row.
With the possibility of executions off the table for the foreseeable future under Gov. Gavin Newsom’s 2019 moratorium, advocates are focusing instead on narrowing the scope of when death sentences can be sought by prosecutors, plus other policies to make them a less normal part of the criminal justice system. The changes, advocates hope, will lay the groundwork to ultimately convince a majority of Californians that the death penalty is no longer necessary.
“The less it is used, the more likely it is that voters and elected leaders will be ready to get rid of it forever,” said Natasha Minsker, a longtime political consultant with the abolition movement.
But recent backlash to an unrelated plan by the Newsom administration to dismantle the historic Death Row facility at San Quentin State Prison underscores how elusive that goal remains and why the Democrats who control state government may be reluctant to embrace even modest proposals.
Though the San Quentin move has no practical effect on executions, Republicans quickly seized on it as another example of Democrats watering down punishments and favoring criminals over victims, a key message in the 2022 election as polling shows rising anxiety among Californians about public safety.
Assemblymember Jordan Cunningham, a San Luis Obispo Republican and former prosecutor, said Newsom and other lawmakers pushing to end the death penalty are disrespecting the will of California voters, who upheld capital punishment three times in the past decade. He predicted the “giant political disconnect” would eventually backfire.
“It just seems so out of touch to me,” Cunningham said. “It’s insulting to the memories of the victims and the families of those victims.”
Executions paused, but death sentences continue
Capital punishment exists in a strange limbo in California, the result of decades of pitched political battles.
The California Supreme Court, for example, was the first court in the country to declare the death penalty unconstitutional. Its decision, issued Feb. 18, 1972, was overturned by voters just nine months later through a constitutional amendment sponsored by then-state Sen. George Deukmejian.
Local district attorneys continue to seek death sentences and, each year, California juries send another handful of people to Death Row. There are nearly 700 condemned inmates in the state — 673 men and 21 women.
Prosecutors argue that it’s important to maintain death as a punishment for the most heinous crimes and as a tool to help secure plea bargains in other serious cases. Voters narrowly rejected an initiative to abolish the death penalty in 2012 and again in 2016. That year, they also passed a competing measure intended to expedite executions, which contains a provision about rehousing inmates that Newsom cited as the basis for his plan to repurpose the Death Row facility.
No one in California has been executed since 2006, however, after a federal court ruled the state’s lethal injection procedure unconstitutional. In addition to suspending capital punishment, Newsom in March 2019, just two months after he became governor, closed the death chamber at San Quentin and withdrew from a regulatory process to develop execution protocols that could pass legal muster.
“The steps he took right when he entered office were so significant and so dramatic,” Minsker said. “He is the most effective spokesperson in educating people about the flaws of the death penalty.”
The conflict, driven by deeply divided public sentiment, is unlikely to be resolved any time soon.
A poll conducted last May by the Los Angeles Times and the UC Berkeley Institute of Governmental Studies found declining support for capital punishment among California voters. But while more respondents favored repealing the death penalty than allowing executions, it was still fewer than half.
Death penalty supporters have already written another initiative to get the system back on track — by limiting the governor’s ability to grant a blanket reprieve for executions and move appeals from the California Supreme Court, where they are bottlenecked, to state appellate courts — but are withholding it from the ballot until they sense a more favorable political environment.
Opponents of capital punishment do not currently have plans to put the abolition back on the ballot, an increasingly expensive undertaking.
A November report by the state Committee on Revision of the Penal Code, which unanimously recommended repealing the death penalty, laid out another path: While working toward that “difficult goal,” officials could take other steps to reduce the size of Death Row, such as granting clemency, recalling capital sentences and removing people who are permanently mentally incompenent.
Legislation to chip away at capital punishment
Three of the report’s recommendations are already in a pair of bills moving through the legislative process.
Assembly Bill 256 by Assemblymember Ash Kalra, a San Jose Democrat, would extend a 2020 law that makes it easier to challenge convictions and sentences as racially biased. The measure would apply retroactively, potentially opening a door for inmates seeking to overturn their death sentences by pointing out that people of color disproportionately receive capital punishment in California. AB 256 passed the Assembly last year, but was held in a Senate committee, where it could be revived this session.
Senate Bill 300 by Sen. Dave Cortese, a Campbell Democrat, would limit punishment for people who are convicted as an accomplice in a homicide. Under current law, someone who commits a felony that results in a death can be charged with murder, even if they are not the actual killer, and receive the death penalty or life without the possibility of parole, if a prosecutor determines they were a “major participant” in the underlying crime and acted with “reckless indifference to human life.”
The measure would also give judges discretion to dismiss the special circumstances that qualify cases for capital punishment and instead hand down a sentence of 25 years to life, which would make the defendant eligible for parole.
“It’s important for the Legislature to make a declaration like other governing bodies have done that this is just not something we’re going to do,” Cortese said. “Moratoriums can be reversed.”
Tough votes for vulnerable lawmakers
Though it would affect only a handful of people on Death Row — Minsker called it “a modest reform to address a very extreme injustice” — SB 300 could be a major test of the appetite at the Capitol to take on the death penalty.
Because it would amend an initiative approved by voters in 1990, the bill requires a two-thirds majority vote in both the Assembly and Senate to pass. That likely means the measure would need support from nearly every member of the Legislature’s Democratic supermajority.
While it squeaked through the Senate last session, SB 300 has not yet come up in the Assembly, where bills to reduce criminal sentences typically face greater resistance and where five Democratic seats are vacant until a series of special elections that could last until June. Groups representing district attorneys, police chiefs and law enforcement officers are opposed.
This year’s election has further raised the stakes for members. All 80 seats in the Assembly and half of the 40 seats in the Senate are up for grabs in newly redrawn districts as the national political mood appears to be turning against Democrats. Cortese said many of his colleagues worry about being seen as too soft on crime by voters.
“Their world view, on even the case of the death penalty, ultimately come down to 100 feet in front of and to both sides of their front door,” Cortese said. “Tomorrow morning, something could go down in any one of these neighborhoods that becomes a punching bag for the opposition.”
In recent elections, California voters have supported a series of ballot initiatives to roll back the state’s legacy of harsh criminal sentencing policy, but Republicans are betting this will be the year when the pendulum swings back in the other direction. They plan to make it a central part of their messaging as they seek to flip enough legislative and congressional seats to deny Democrats another supermajority in Sacramento and help the GOP regain control of Congress.
“People are fed up,” said Cunningham, the Republican Assemblymember.
He said a bill such as SB 300 could easily become a liability in a competitive race, fodder for a mailer slamming a legislator for voting to water down sentences for murderers. He predicted that Democrats would try to prevent it and other potentially controversial measures from coming up at all this year.
“Even if you think those are the right policies, those are tough votes to take,” he said.
The end of California’s Death Row?
Those dynamics were previewed last week when the Associated Press reported that Newsom wants to clear out Death Row at San Quentin and transform it into a space for rehabilitation programs. The news drew massive public attention and some expected ridicule from Republicans, though experts on both sides agree that the significance of the proposal was overblown.
Prison officials plan to transfer California’s condemned inmates into the general population over the next two years, making it easier for them to work and pay restitution as required by Proposition 66, the pro-death penalty initiative approved by voters in 2016. The men could move from San Quentin to other maximum-security prisons, while female inmates, who are housed at the Central California Women’s Facility in Chowchilla, would live in less restrictive units in the same prison. None will be resentenced.
The program, which has not yet been finalized, would extend a two-year experiment that ended in January and rehoused more than 120 people. A $1.5 million funding request to pay for a consultant to repurpose Death Row was a blip in Newsom’s nearly $300 billion budget proposal last month.
“It’s not a dramatic moment in the history of the death penalty,” Minsker said.
Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation and one of the authors of Prop. 66, said the governor was following through on the initiative’s intent. Because of the small cells at San Quentin, inmates must be held in single units on Death Row, he said, driving up the cost of supervising them and providing opponents a frequent argument against capital punishment.
“Governor Newsom has removed one of the arrows from the quiver of the people arguing for repeal,” Scheidegger said in an email. “That is the only thing he has done right in criminal justice since taking office.”
The change, like any involving the death penalty, nevertheless carries symbolic weight for many Californians.
Advocates for capital punishment said his actions were another slap in the face of the families of murder victims who have been denied closure for decades.
Matthew Rushford, president and CEO of the Criminal Justice Legal Foundation, which has also defended California’s death penalty procedures in court, said he regretted the transfer and restitution provisions in Prop. 66.
Though they were included to make the initiative more appealing to voters, they were largely ignored during the campaign. Rushford said he does not believe they were ultimately necessary and lamented that they are now being used to move inmates to better living conditions with more access to benefits such as rehabilitative programming.
“We’ve learned from this governor that you leave any wiggle room and he’ll use it,” Rushford said.
During an appearance in Los Angeles last week, Newsom defended the plan as a natural outcome of the requirements in Prop. 66, before engaging in his usual long-view philosophizing. The governor said he looked forward to “advancing more leadership on reforming the death penalty,” a practice he has long opposed and referred to as “government-sponsored premeditated murder.”
“We talk about justice. We preach justice,” Newsom said. “But as a nation, we don’t practice it on Death Row.”
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