Seeking to shut down the nation’s largest death row, the governor is proceeding with a mix of conviction and caution.
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An inmate returning to death row in 2016 at San Quentin State Prison in California. The state has not executed anyone since 2006.
In 2022, a remarkable thing happened: In the heat of an election in which Republicans seized on the public’s fears of crime, support for capital punishment barely moved, if at all.
Murders increased across the United States in 2020 and 2021, and Americans were clearly worried about what they were hearing. According to Gallup’s annual crime survey, 78 percent of the public said there was more crime in the U.S., approaching levels not seen since the 1990s.
And when it came to local crime, the public’s concern reached a height unmatched in Gallup’s data since 1972. The percentage of Americans who said they at least occasionally feared being murdered jumped by seven percentage points.
But when Gallup asked respondents if they favored the death penalty for people convicted of murder, the number ticked up by a single point, a statistically insignificant blip.
That was new; in the past, public support for capital punishment has tended to rise along with fears about crime. In 1994, 80 percent of Americans backed the death penalty for murder; by 2022, only 55 percent did, according to Gallup. And among Republicans, the Pew Research Center found, the share of those supporting death sentences for murder convictions dropped by seven points in the two years before 2021.
Those who track trends in capital punishment saw this divergence as a hopeful sign that declining public support for the practice, increasingly viewed as morally indefensible, prone to mistakes and racially biased, might be irreversible.
“What we’re seeing defies all conventional political wisdom,” said Robert Dunham, the executive director of the Death Penalty Information Center. Coming after Donald Trump revived the federal death penalty in 2020 — his administration executed 13 people, the most of any president in a year since Grover Cleveland — it looks like a repudiation.
In practice, capital punishment is on the wane. The five-year average of new death sentences reached just 26.6 a year, a 50-year low, Dunham’s recently published annual report documented. The five-year average of executions also dropped to 18.6 a year, a 30-year low. Since peaking at 98 in 1999, executions have dropped by 82 percent.
Geographically, the death penalty’s retreat is stark. Thirty-seven states have abolished the death penalty altogether or have not executed anyone in at least a decade — and those that are still actively carrying it out are concentrated in the South.
“What we’re seeing,” Dunham said, “is the geographic constriction of capital punishment to where it exists almost exclusively in states of the former Confederacy.”
California’s death-penalty limbo
The state with the most prisoners on death row, however, is deep-blue California — where the death penalty exists in a state of suspended animation.
As of December, there were still 692 people on death row in California, more than twice as many as in Florida, which had the second-most prisoners awaiting execution. Prosecutors and juries in California have continued sentencing people to death — mostly in a few conservative counties, a handful each year — even though the state has not executed anyone since 2006.
California voters have often seemed unsure what to do with this state of affairs. In 2012 and 2016, they rejected ballot measures to end the death penalty. And in 2016, they instead approved a rival proposal backed by law enforcement groups that would speed up executions, Proposition 66.
This verdict presented Gov. Gavin Newsom with a conundrum when he entered office in 2019. During his first campaign, he invoked his Jesuit upbringing, and seemed haunted by the prospect of having to sign a death warrant. But his predecessor, Jerry Brown, had left office with 737 prisoners still on death row. California voters had spoken, and mounting another ballot initiative to end the death penalty would be an expensive and uncertain prospect.
Newsom decided to freeze the practice instead. “I will not oversee the execution of any person while governor,” he declared as he announced a moratorium. He called the death penalty a “failure” that discriminated against people of color, had “no public safety value” and “wasted billions of taxpayer dollars.”
ImageGov. Gavin Newsom of California is facing pressure from opponents of capital punishment to commute the sentences of death row inmates.Credit…Jim Wilson/The New York Times
For a politician sometimes seen as calculating, it was a bold move. Republicans and supporters of capital punishment attacked him. Trump tweeted in reaction: “Defying voters, the Governor of California will halt all death penalty executions of 737 stone cold killers. Friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!”
Three years later, Newsom has been comfortably re-elected despite Republican attempts to highlight rising murder rates in California; there’s no evidence that he paid any political price for his death-penalty gamble. But he also didn’t take the bolder action some capital punishment opponents wanted.
Public opinion on the issue remains murky: A poll conducted in May 2021 found that 44 percent of the state’s voters would vote to repeal the death penalty, while just 35 percent would vote no. But 21 percent were undecided, suggesting room for interpretation.
“The state runs progressive on every issue, but on the death penalty, public opinion has been stubbornly right-leaning,” said David Atkins, a Democratic National Committee member from California. “So I think Newsom is acting carefully.”
‘It’s more complicated in California’
In November 2021, in a scathing 39-page report, a state panel set up by the California Legislature called for outright abolition. “Recent efforts to improve, simplify and expedite California’s system of capital punishment have failed to accomplish their stated goals and may have made things even worse,” it found.
Recognizing that ending the death penalty would be “difficult,” the report made seven recommendations for reducing the death-row population, including granting clemency to inmates. One of its novel proposals, amending the law to allow death-row defendants to retroactively challenge their sentences as racially biased, went into effect on Jan. 1.
Newsom took another step last January, when he announced plans to dismantle the death-row section at San Quentin State Prison and move its prisoners into other maximum-security facilities. But that has been slow going, complicated in part by the mental-health needs of many condemned inmates.
He now faces renewed calls from abolition advocates to follow the example of Gov. Kate Brown of Oregon, who commuted the sentences of all 17 people on the state’s death row during her final weeks in office. And he’s clearly thinking about it.
“It’s more complicated in California, for many different reasons, but it’s something that’s long been considered,” the governor told reporters in Sacramento recently when asked about commuting sentences.
That’s true: Many of those on death row also have other felony convictions, so even if Newsom granted them clemency, the California Supreme Court would have to review each one. Issuing commutations in small batches could be a painstaking and legally risky process — and no less politically thorny than simply converting every death sentence to life in prison, as Oregon’s Brown did. For that reason, those pushing clemency are urging Newsom to go all the way, and sooner rather than later.
Cassandra Stubbs, the director of the Capital Punishment Project at the American Civil Liberties Union, said that activists were “thrilled” when Newsom announced his moratorium. “But,” she added, “of course that’s not enough.”
Abolitionists in California are willing to grant the governor space to think about it, however. A recent editorial in The Los Angeles Times on the death penalty made no specific demand of Newsom, and there’s little sign that he’s under real political pressure to act. With no executions happening, the issue is rarely in the news. Activists said they appreciated the incremental steps Newsom had taken, and offered to help find a path forward.
“There’s a lot of hope that he will move forward with universal clemency in his final term,” said Natasha Minsker, a death penalty opponent who advises Smart Justice California, an advocacy group. “We want to support him.”
As he weighs any future ambitions — and Newsom has said he has “subzero” interest in the presidency, despite some indications last year that he was contemplating the idea — he might be considering the fact that America’s national politics on capital punishment are still less forgiving than California’s.
President Biden’s mixed actions on the federal death penalty offer one possible clue to how national Democrats see the issue. Although his Justice Department imposed a moratorium on federal executions in 2021, and quietly reversed the government’s calls for capital punishment in a dozen cases, it backed the death penalty for Dzhokhar Tsarnaev, the Boston Marathon bomber.
“Death penalty cases always come with tragic stories,” said Laurie Levenson, a former federal prosecutor who directs the Project for the Innocent at Loyola Law School in Los Angeles. “If Newsom stays in politics, he’s going to have to defend the decisions he makes.”
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Source: nytimes.com
