Newsom's Mass Death Row Commutations Defy the Voters Twice Over, and Prosecutors and Victims' Families Are Fighting Back

Gov. Gavin Newsom says his conscience requires him to empty California's death row before he leaves office. The prosecutors who tried those cases, the families who buried the victims and the voters who were asked twice to end capital punishment see it differently, and starting Monday they intend to make their case before the California Supreme Court.

Newsom announced on November 5 that he intends to commute every death sentence in California, 548 in all, to life in prison without the possibility of parole, the Daily Journal reported. He argued that capital punishment is incompatible with California's values and that the system is irreparably flawed. In an open letter, he wrote that he felt morally obligated to act and that the state should end capital punishment altogether, according to a New York Times report published by the Honolulu Star-Advertiser.

His plan leaves the convictions and restitution orders in place and does not repeal the death penalty law itself, the Daily Journal reported. But it would wipe out every jury's sentence in a single stroke.

The first problem with the governor's case is that Californians have been asked this question, and they said no. Voters rejected repeal of the death penalty in 2012 and again in 2016, and in 2016 they approved a separate measure to speed up executions, the Times reported. Newsom said he would put the question to voters again but never did, and he has acknowledged that his 2019 moratorium on executions took momentum away from a repeal campaign.

Los Angeles County District Attorney Nathan Hochman, who acknowledged the governor's power to commute sentences, drew the line clearly: ending capital punishment is not the governor's decision to make. "Only the Legislature or the voters can do that," he said, according to the Daily Journal.

The second problem is legal. Article V, Section 8 of the California Constitution bars a governor from granting clemency to a person twice convicted of a felony without a recommendation from the state Supreme Court, with four justices agreeing, the Daily Journal reported. Newsom has asked the court to make recommendations for 382 condemned inmates with multiple felony convictions, and wants a decision before his term ends.

That makes this far more than a paperwork step. The Times reported that if the court has not approved those commutations when Newsom leaves office in January, they would lapse and the sentences would stand. Anne Marie Schubert, the former Sacramento County district attorney who leads the Criminal Justice Legal Foundation, said her group expects to file a challenge and argued that the court has historically reviewed clemency cases one at a time. A blanket order covering hundreds of different crimes, from different juries, is the opposite of that kind of review.

Orange County District Attorney Todd Spitzer said Thursday that his office will file with the state Supreme Court on Monday, Fox News reported. Spitzer said nearly 50 inmates from his county alone would benefit, and his office named Randy Kraft, Skylar Deleon and three men convicted of killing police officers among them. He described the court as caught in a legal quagmire after it spent years reviewing and affirming the very sentences the governor now wants erased.

The California District Attorneys Association's chief executive, Greg Totten, accused Newsom of disregarding jury verdicts and victims' families, the Daily Journal reported. Riverside County District Attorney Michael Hestrin called the commutations an abuse of power and said his office will keep seeking death sentences when the facts warrant, the Times reported. Riverside has sent more people to death row than any other county and has 20 capital cases pending. Kern County District Attorney Cynthia Zimmer said her office is examining every legal option.

The families of victims have been among the most forceful voices. Marc Klaas, the father of murder victim Polly Klaas, told the Times he was left feeling raw and angry, and that Newsom never contacted him, though Polly's sisters encouraged the commutations. The family of 8-year-old Gabriel Fernandez, whose 2013 torture and death exposed failures by the agencies meant to protect him, is also challenging the decision, the Washington Examiner reported.

Opponents of the death penalty are not silent. The California Anti-Death Penalty Coalition's Natasha Minsker argued that prosecutors would be mistreating victims if they keep seeking new death sentences, the Times reported. The state's public defender has a separate challenge alleging racial bias in capital cases. Those concerns deserve a hearing, case by case, in court. That is exactly what a blanket commutation skips.

Christians take mercy seriously, and many people of faith oppose the death penalty in good conscience. But mercy offered by one official, over the objections of the victims and against the stated will of the voters, is not the same thing as justice. Scripture teaches that the governing authority does not bear the sword in vain (Romans 13:4), and the Constitution of California places a deliberate check on exactly this kind of mass clemency.

The Supreme Court must review 382 cases before the commutations for multiple-felony inmates can take effect, and the clock runs out in January. Governor-elect Xavier Becerra has said he will keep the moratorium on executions, the Times reported, so no one will be put to death in the meantime. The real question is whether juries' verdicts, and two votes of the people, can be undone by one governor on his way out the door. Monday's filing will put that question where it belongs: before the court the Constitution assigned to answer it.