Clemency for death row felons would kill the will of the voters

Jason Marks argues that Gov. Gavin Newsom should issue – and the state supreme court should approve – “a mass commutation of sentences for twice-convicted felons,” including those under sentence of death. (“Blanket commutations and twice-convicted felons,” Daily Journal, Feb. 29.) As “precedent” for such a move, Marks recalls that in 2003 then-Governor George Ryan of Illinois used his clemency power to reduce the death sentences of more than 160 prisoners in that state.

Whatever one might think of what Ryan did, Newsom has effectively conceded that it would be wrong for him to mimic Ryan’s behavior. More importantly, the California Constitution limits a governor’s authority to grant clemency in a way that Illinois does not, and that difference should block Newsom from pursuing, or achieving, the “blanket commutations” Marks urges.

The vast majority of murderers sentenced to death by California juries are recidivist criminals, meaning they have been convicted of at least two (and often more) felonies in addition to the murder that landed them on death row; indeed, many death row prisoners have committed multiple murders. Their prospects for receiving clemency are therefore circumscribed by Article V, section 8 of the state constitution, which provides that “twice-convicted” felons can neither be pardoned nor have their sentences commuted by the Governor “except on recommendation of the Supreme Court, 4 judges concurring.” Marks acknowledges this provision but fails to consider both its full import or Newsom’s apparent understanding of it.

Newsom has never made any secret of his longstanding and “deeply held” personal opposition to capital punishment. Nevertheless, as a candidate for governor in 2018, he explicitly promised to faithfully execute the law: He then vowed that, if elected, he “would be accountable to the will of the voters” and not put his “personal opinions in the way of the public’s right to make a determination of where they want to take us as [it] relates to the death penalty.” His campaign spokesperson underscored the point, insisting that Newsom “recognizes that California voters have spoken on the issue and, if elected governor, he’d respect the will of the electorate by following and implementing the law.” To be sure, a mere two months after taking office he declared a moratorium, scuttled the state’s execution protocol, and shuttered the death chamber at San Quentin. But his earlier promise, however quickly he broke it, reflected an accurate understanding of the duties of his office.

Newsom’s objections to the irreversibility of the death penalty, like his professed reservations about its overall fairness, doubts about its deterrent effect, and frustration over the costs of its administration are the stuff of legitimate policy debate. But that’s all they are, and they’re exactly the sort of considerations that informed the voters’ judgment when they approved California’s current death law in 1978 and when, in 2016, they not only rejected a ballot measure that would have abolished capital punishment but approved a competing one designed to overcome the decades-long systemic delays that had allowed only 15 executions to occur over the previous 39 years. To the extent the enduring objections of Newsom and others could be packaged as legal arguments for voiding capital punishment generally, or nullifying California’s death penalty law in particular, they have been roundly and repeatedly rejected by both the United States Supreme Court and the California Supreme Court.

A “blanket” commutation effectively nullifies an authorized penalty in every instance of its application. When attempted against an ordinary sentencing provision enacted by the legislature, it would amount to a veto well past the time that option was available to the governor; if targeted against a provision enacted directly by the voters – such as California’s death penalty law – it would amount to a veto that was never within the governor’s authority to exercise. A clearer abuse of executive power would be hard to imagine, which explains, at least in part, both why candidate Newsom vowed to “follow and implement the law” and why he has been deterred by Article V, section 8 from making such an audacious move.

Ryan operated free of any constraints like that imposed by the California Constitution. Under Illinois law, he could grant commutations “on such terms as he thinks proper”; his power could not “be controlled by either the courts or the legislature.” People ex rel Madigan v. Snyder (2004) 208 Ill.2d 457, 473. When he commuted death sentences, the state attorney general ran to court to try to block the action. Because Ryan›s conduct was «essentially unreviewable,» the AG’s effort predictably failed, leaving the Illinois Supreme Court to observe: “Our hope is that Governors will use the clemency power in its intended manner — to prevent miscarriages of justice in individual cases.» Id. at 480 (emphasis added).

In California, by contrast, the judiciary does have some control over clemency, and it is the Governor who must first secure the high court’s concurrence before granting clemency to twice-convicted felons. Under this regime the state supreme court can ensure, and the People can therefore reasonably expect, not merely be left to “hope” that the clemency power will not be exercised for an invalid purpose, such as gratifying the governor’s personal policy preferences. If Article V, section 8 of the California Constitution means anything, it should mean at least that.

– Ron Matthias

Retired prosecutor who specialized in homicide appeals during his 35-year career as senior assistant attorney general in the California Attorney General’s Office.