California Forum

Gov. Newsom’s decision to shut down ‘machinery of death’ respects Constitution

The death penalty in California is irreparably broken. Gov. Gavin Newsom’s politically courageous act of imposing a moratorium on executions deserves applause.

His predecessor, Jerry Brown, could have done this, but didn’t. Attorney General Kamala Harris could have ended the death penalty in California by choosing to not appeal a decision five years ago by federal district court Judge Cormac Carney, who found that capital punishment in California is so arbitrary as to be cruel and unusual punishment. But she did appeal.

Now, thanks to Gov. Newsom, California has joined an increasing number of states in halting executions. California currently has 737 prisoners on death row. That’s more than twice as many as in any other state, making ours the largest death row population in the Western Hemisphere. Sixty-one percent of these prisoners are black or Hispanic, and 222 (30 percent) are age 60 or older.

As Gov. Newsom recognized, there is too great a danger that innocent people will be put to death. Since California reinstated the death penalty in 1978, five condemned prisoners have been exonerated. Last year, Vicente Benavides Figueroa was exonerated after spending nearly 26 years on death row. The California Supreme Court called his convictions for sexually assaulting and murdering his girlfriend’s 21-month-old daughter a product of “extensive,” “pervasive,” “impactful” and “false” forensic testimony.

Gov. Newsom cited a study by the National Academy of Sciences that estimated that one out of every 25 people on death row is innocent. He explained that this “means if we move forward executing 737 people in California, we will have executed roughly 30 people that are innocent.” Moreover, every study has shown that the death penalty is imposed in a racially discriminatory manner. Last fall, the Washington State Supreme Court found that state’s death penalty violates its state constitution for this reason.


In 2014, Judge Carney concluded that the administration of the death penalty in California is so arbitrary as to be unconstitutional. He explained: “Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution.

Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

Judge Carney concluded that such an arbitrary punishment violates the 8th Amendment’s prohibition of cruel and unusual punishment. Judge Carney’s facts are unassailable. Countless factors — the process of direct review by the state Supreme Court, the lack of qualified attorneys to handle death penalty cases, the need for multiple levels of review — contribute to long delays and unpredictability in carrying out death sentences.

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Erwin Chemerinsky

There’s no fix for this. Proposition 66, which requires that state appeals be completed within five years, either will be ineffectual or risk grave injustices. Despite its mandatory language, the state Supreme Court interpreted it to be advisory-only.

The reality is that the initiative does nothing to solve the causes of the delays. Short-circuiting appeals, or proceeding without competent counsel, increases the risk of executing innocent people or imposing the death penalty when there has been a serious constitutional violation. And there simply is not a sufficient number of competent death penalty attorneys to handle these appeals.

No one disputes that Gov. Newsom has the authority to impose a moratorium on executions. He was clear that it will last as long as he is in office. He declared: “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.”

Hopefully, California voters will finally abolish the death penalty during his tenure.

In 1994, Justice Harry Blackmun famously renounced capital punishment, writing that “from this day forward I shall no longer tinker with the machinery of death.” In his view, “the death penalty experiment had failed” and it was “delusion” to think that capital punishment in America could be consistent with the Constitution.

We should applaud Gov. Newsom for recognizing this.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at