Gavin Newsom, the newly inaugurated governor of California, would very much like to be president of the United States someday. It is fitting, then, that Newsom has begun his audition for the role by engaging in the sort of brazen executive overreach that we have become accustomed to seeing from White Houses.
On Tuesday, Newsom confirmed that no executions will be performed in California while he is governor. This change, he explained, will be made unilaterally, without reference to either the legislature or the judiciary, by applying his gubernatorial reprieve power on a wholesale basis. There are 737 people on death row in California. Should their execution dates coincide with his tenure, Newsom will automatically grant a commutation. “I cannot,” Newsom insisted, “sign off on executing hundreds and hundreds of human beings.”
If that is the case, then Newsom should not have run for governor of California, and nor should he have sworn an oath to “see that the law is faithfully executed.”
The reprieve power that Newsom wields is intended to be applied on a case-by-case basis, as a final check against judicial error or egregious injustice. It is not intended to be invoked indiscriminately as a means by which to nullify or thwart well-established laws that the executive happens not to like. During his press conference, Newsom repeatedly used the word “moratorium.” Perhaps this was an attempt to cast minds back to that brief period in the 1970s during which the death penalty was ruled nationally unconstitutional. But, in truth, Newsom’s recalcitrance has little in common with that moment. There exists no pending litigation or constitutional challenge to California’s arrangement, and there exists no confusion as to the integrity or meaning of the underlying statute. Newsom just dislikes the status quo and so has resolved to change it by force.
The arrogance of his position is remarkable. Californians were asked as recently as 2016 whether they wanted to abolish capital punishment in the state and not only answered “No” by a margin of six points but voted to speed up the appeals process in concert with that refusal. It is entirely reasonable for Newsom to have been disappointed by that result; in California, as everywhere else, the death penalty is a topic of considerable debate. It is not reasonable, however, for Newsom to seek to undermine that result in its entirety. What, Californians might well ask, is the purpose of having a system of legally binding propositions if the executive branch can reverse them on a whim? What, by the same token, is the California legislature for? And why convene juries — and guide them in painstaking detail through complex and difficult questions — if their judgment is to be summarily replaced by a single officer in Sacramento?
During the debate over the merits of the federal Constitution, many prominent anti-Federalists worried that to give the president the power to pardon was, in effect, to make him a king. For most of American history, this fear proved unfounded. In recent years, however, the ghost of Patrick Henry has begun to rattle his chains, as a growing number of executives have begun to transmute their pardon power into a general veto. This is what Barack Obama did in pursuit of DACA; it is what Governor Terry McAuliffe did, against the will of the Virginia legislature, in order to re-enfranchise felons who he believed had paid their debts to society; and — perhaps this is where Newsom got the idea? — it is what former Illinois governor George Ryan did back in 1999 when he responded to the failure of a death-penalty moratorium in the legislature by issuing his own. When Gavin Newsom announced his run for governor, he suggested that “California has a responsibility and opportunity to show the country and the world what inclusive, progressive government can achieve.” If this is what he meant, the country should say, “No, thank you.”