Governor Newsom’s moratorium on the death penalty

By Michele Hanisee

Governor Gavin Newsom’s recent executive order declaring a moratorium on the death penalty is a test of the boundaries of executive privilege. California Constitution Article 5, Section 1 states, “The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully enforced.” But does the governor have the authority not to enforce laws?

The governor’s moratorium consists of three provisions. The first is a reprieve for all currently condemned inmates. Although the language of the written order does not include the word “temporary,” the governor represented in his comments that he intends the reprieve to be for the term of his office. The second provision of the governor’s order is to repeal California’s lethal injection protocol. The third provision is the immediate closure of the execution chamber at San Quentin (the order refers to it as the “death chamber”).

California Constitution Article 5 Section 8 grants the governor nearly unlimited authority to issue reprieves, pardons and commutations of sentenced persons. Using his constitutional authority, the governor could have taken more drastic measures. He could have made permanent and irrevocable orders of commutation or clemency for every person on death row. He could even have granted full pardons. But there are some limits to his authority. The governor cannot prospectively issue reprieves or pardons in future cases, so prosecutors are still able to pursue death sentences in court. To pardon or commute the sentence of a person who has two or more felony convictions, the governor requires a majority recommendation from the Supreme Court.

The governor’s orders to “close” the execution chamber and repeal the execution protocol are more legally problematic. Nearly all currently effective death penalty statutes were enacted via ballot initiative, most recently by Proposition 66 in the 2016 election. Any change to those laws, which were enacted by voters, require more than a simple majority vote of the legislature or executive order. The language of each initiative generally calls for at least a two-thirds majority vote of the Legislature or a new ballot initiative. An amendment to Proposition 66 requires a three-fourths vote of the Legislature.

Proposition 66 added subsection (e) to Section 3604 of the Penal Code. That subsection requires the California Department of Corrections and Rehabilitation to “maintain at all times the ability to execute such judgments.” The governor’s orders to repeal the execution protocol and “close” the execution chamber are in direct contradiction of that law.

Proposition 66 also provided broad standing for sentencing courts, district attorneys and victims of crime to enforce this provision. It added Penal Code Section 3604.1 which provides in subdivision (c), “If the Department [of Corrections and Rehabilitation] fails to perform any duty needed to enable it to execute a judgement, the court which rendered the judgement of death shall order it to perform that duty on its own motion, on motion of the District Attorney or Attorney General, or on motion of any victim of the crime as defined in article I, section 28, subdivision (c) of the Constitution.”

Realistically, the governor’s second two orders are without practical effect given the first order. “Closing” the execution chamber means what? Taking a gurney out of a room that has windows for viewing? Disassembling the unused gas chamber for a method of execution that the state no longer uses? Unless the governor directs the Department of Corrections and Rehabilitation to tear down the entire building in which the execution chamber is contained, the execution chamber remains there as a room with windows. As for “repealing” the lethal injection protocol, the protocol is a regulation memorialized in writing that describes all the steps to be taken to perform an execution. It is a document that has been publicly published on the internet. “Repealing” it is without practical effect when the document is readily available and can just as quickly be reinstated as a regulation. This is particularly true now that the execution protocol is, due to Proposition 66, exempt from the public commentary requirements of the Administrative Procedures Act.

If the second and third items of the governor’s executive order are, as some have argued, within the governor’s authority, then the governor has absolute authority to declare or invalidate any law by executive order. He could, for example, unilaterally outlaw paper towels.

The concerns the governor articulated about the death penalty have long been part of the debate over capital punishment. But those issues were part of the public debate that occurred during the 2012 and 2016 elections. The voters weighed those considerations and chose to keep the death penalty. Prior to being elected, Gov. Newsom promised that although he does not support the death penalty, he would not interfere with the will of the voters. He has violated that promise by issuing an executive order that usurped the legislative authority of the voters.

This assertion of executive authority is particularly ironic following Gov. Newsom’s announcement along with Attorney General Xavier Becerra last month that California would be leading a lawsuit challenging the president’s executive order declaring a state of emergency. The argument presented in the lawsuit is that the president’s use of this executive authority usurps congressional authority to appropriate funds. How is this moratorium by the governor which usurps the legislative authority of the voters to enact laws via ballot initiative any different?

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.