When Gov. Gavin Newsom signed an executive order halting the death penalty in California, he argued the system has wasted billions of taxpayer dollars. But without cooperation from prosecutors, there’s no evidence his action is saving the state any money.
In general, death penalty trials are far more expensive than those for people facing a maximum sentence of life without possibility of parole. It’s also more expensive to house inmates on death row than in a regular prison unit.
Newsom’s moratorium granted temporary reprieves for death row inmates, closed the state’s execution chamber and withdrew the state’s lethal injection protocol. It doesn’t stop capital cases from proceeding.
“The moratorium stops executions,” said Robert Dunham, executive director of the Death Penalty Information Center. “It doesn’t stop the machinery of death from moving forward.”
That means the financial effect of the moratorium will be determined by district attorneys, who decide whether to pursue capital charges, said Dunham, whose organization is critical of the way the death penalty is administered in California but doesn’t have a position on the death penalty itself.
In the four months since Newsom halted executions, California prosecutors have continued to pursue capital cases, which can cost millions of dollars. Death penalty-related costs in the state budget also do not appear to have decreased.
Funding for the state-funded Habeas Corpus Resource Center, which helps people sentenced to death who can’t afford lawyers to appeal their cases, actually increased – from about $16.64 million to nearly $16.8 million.
Costs for keeping inmates on death row also have not changed, said corrections department spokeswoman Terry Thornton. California is housing 710 male inmates on death row at San Quentin State Prison and 24 female inmates sentenced to death at the Central California Women’s Facility in Chowchilla.
“We’re still housing them and feeding them and everything else,” Thornton said. “None of that has changed.”
The Los Angeles District Attorney’s office is still pursuing multiple existing death penalty cases. Newsom’s moratorium has not affected the office’s work, said Shiara Davila-Morales, a spokeswoman.
San Mateo District Attorney Steve Wagstaffe, who previously served as president of the California District Attorneys Association, said prosecutors across the state agree.
“We’ve all arrived at the same conclusion,” Wagstaffe said. “We need to continue to do our jobs. The law is still on the books.”
Newsom’s office pointed to a widely cited study in the Loyola of Los Angeles Law Review that found California taxpayers spent about $4.6 billion on the death penalty system between 1978 and 2011. During that time, the state executed just 13 people.
The study found the largest share of spending — roughly $2 billion — went to pre-trial and trial costs. Roughly $1.7 billion went to appeals and about $1 billion covered incarceration costs.
Those costs could go down if California Supreme Court justices side with defense attorneys trying to block capital murder trials while Newsom’s moratorium is in effect.
In a petition filed with the court this month, lawyers for a man facing five capital murder charges argue jurors cannot fairly decide to put someone to death while the moratorium is in place.
Under Newsom’s order, the jurors will “be unable to assume a death sentence will result in an execution and be unable to comprehend fully the gravity of their decision,” lawyers for Cleamon Johnson argued.
In response, prosecutors said that argument is a ploy to turn the moratorium “into a judicial abolition of the death penalty in California.” Concerns about the moratorium can be handled during jury selection for Johnson’s trial, prosecutors said.
“Jurors are routinely asked to set aside these types of things in order to reach a just verdict based on the evidence and the law,” they wrote.
Newsom has said he wants to end the death penalty permanently through a ballot initiative. He tried and failed to do that in 2016. Voters instead supported a counter-measure intended to speed up executions.
Sacramento District Attorney Anne Marie Schubert said the moratorium won’t stop her from filing capital charges against people suspected of egregious crimes. Schubert’s office is pursuing the death penalty against Golden State Killer suspect Joseph James DeAngelo.
“The voters of California have passed a law saying they want the death penalty. That’s the law,” she told The Sacramento Bee just after Newsom announced his action. “He cannot preclude a prosecutor or DA’s office from seeking it. There’s nothing stopping us from seeking capital punishment in a case where we feel it’s appropriate.”
Assemblyman Marc Levine, D-San Rafael, has introduced legislation that would put a proposed constitutional amendment on the ballot in November 2020 to end the death penalty. He said he worked closely with Newsom’s office on the proposal.
Levine said he thinks it will have a better shot than Newsom’s 2016 initiative, which failed by about 6 percentage points.
Although death penalty costs are significant, both Levine and Newsom say it’s not the main reason they oppose capital punishment.
“It’s not the primary factor that weighs on me,” Levine said. “I am overwhelmed by the possibility that we could execute an innocent person.”
On the other side, death penalty supporters argue the moratorium denies victims justice.
“Every one of the victims at the hands of these people had their life brought to an unfair ending… Many of them were clearly tortured in their final moments of life,” said Assemblyman Tom Lackey, R-Palmdale, a retired California Highway Patrol officer. “That sense of brutality needs to not be forgotten and dismissed.”
Wagstaffe from San Mateo County pointed to a capital case his office is pursuing against a man charged with sexually assaulting and murdering a 17-month-old girl. Unless voters overturn the death penalty, Wagstaffe said it’s his duty to continue prosecuting the case, regardless of the governor’s moratorium.
If he stops pursuing the charges and executions resume under the next governor, he would have failed to uphold the law, Wagstaffe said.
“We then would have wasted all this time,” he said. “I don’t think I would have been doing my duty, and that’s what all the DAs are feeling.”