On Thursday, Gov. Gavin Newsom announced that he intends to commute the death sentences of all 548 prisoners on California’s death row to life imprisonment without parole.
His explanation was remarkable.
Executions, he declared, are incompatible with California’s values, undermine the foundations of our legal system and diminish every Californian. He invoked justice and human decency, describing his decision as necessary and righteous.
Whose values? Whose conception of justice?
California voters rejected abolition of the death penalty in 2012 and again in 2016. In that second election, they also approved Proposition 66, intended to expedite capital proceedings.
Newsom is entitled to disagree with those decisions. But he cannot plausibly claim that his personal opposition to capital punishment represents an established consensus among California’s citizens.
I served for many years in the California Attorney General’s Office, which represents the state in all capital appeals. I know what it takes to impose a death sentence and sustain it through judicial review.
Capital punishment is not imposed casually.
Jurors hear extensive evidence, including aggravating and mitigating circumstances, before deciding whether a defendant should live or die. Their judgments are reviewed automatically by the California Supreme Court, frequently followed by years of additional habeas corpus challenges.
Consider some of the people whose sentences Newsom proposes to commute.
Randy Kraft was convicted of murdering 16 young men in a series of crimes involving sexual violence, torture and mutilation.
Isauro Aguirre was sentenced to death for the prolonged torture and murder of 8-year-old Gabriel Fernandez. The child’s suffering was almost beyond description.
Charles Ng was convicted of 11 murders involving captivity, sexual violence and extraordinary cruelty.
These were not hypothetical moral exercises. They were actual crimes, proved in court, involving real victims and jurors who were required to confront evidence most citizens could scarcely bear to hear.
People can disagree about whether even these offenders should be executed.
But the gravity of their crimes and the painstaking judicial proceedings cannot simply be brushed aside by a governor’s declaration of superior moral certainty.
Newsom argues that our imperfect justice system cannot be trusted with an irreversible punishment. That is a serious argument, and the possibility of wrongful conviction deserves the utmost attention.
But it does not establish that every existing death judgment is unsound, let alone explain why hundreds of separate judicial determinations should be displaced together.
Nor does the announcement adequately explain why no individualized examination preceded this sweeping decision. Contrary to existing norms for commutations and pardons, trial records and appellate histories were not reviewed, prosecutors and surviving families were not consulted, nor were the circumstances of each case considered.
They were simply swept aside.
There is also a constitutional obstacle. Under Article V, section 8 of California’s Constitution, the governor cannot commute the sentence of a prisoner twice convicted of a felony without a favorable recommendation from at least four justices of the California Supreme Court.
That requirement applies to 382 of the prisoners.
Finally, where is the necessity Newsom invokes? California has executed nobody since 2006. His own moratorium has prevented executions since 2019.
Capital punishment remains lawful, and future juries may still impose death sentences. His announcement changes existing judgments without resolving the underlying law.
The governor possesses an extraordinary constitutional power of clemency. Nobody disputes that. But possessing power and exercising it wisely are different questions.
The jurors who heard these cases performed a solemn civic duty. The judges who reviewed them performed a constitutional one. The citizens who repeatedly voted to retain capital punishment exercised their democratic rights.
Their judgments deserve more than dismissal through a proclamation of personal righteousness.
Newsom must surely follow his conscience, but he cannot claim that his conscience is infallible or speaks for all of California.
We elected a governor, not a pope.
