I oppose the death penalty. I also oppose Governor Newsom’s lawless imposition of a “moratorium” on the death penalty in California. These two positions are not mutually exclusive.
Section 1 of the “Executive” article within the California constitution holds that “the Governor shall see that the law is faithfully executed.” By issuing his order, Newsom is flatly refusing to do that, and in so doing he is engaging in precisely the sort of legal sophistry, political norm-breaking, and rank contempt for democracy (and juries) about which we are all supposed to be so alarmed. Irrespective of their views on the death penalty, those who cherish separation of powers and the rule of law should refuse to applaud this move. That the order has been covered solely on its merits tells us a great deal about the consistency of the press corps’ commitment to process.
The gubernatorial reprieve power is designed for case-by-case evaluations. It is not designed to be used wholesale as a means by which the executive branch can effectively decline to execute laws it opposes. The death penalty has been explicitly and repeatedly affirmed by the voters in California in the last few years — not merely in opinion polls, but in legally binding propositions. Just two years ago, voters in California not only refused to repeal the death penalty, they voted to speed up the appeal process. If I lived in the state of California, I would have voted for repeal. But I would have lost. Governor Newsom lost, too. Now, like Barack Obama and Donald Trump, he is doing what he wants anyway. This is not “prosecutorial discretion” — or any form of “discretion” for that matter. It is not a “reprieve.” It is not a “moratorium.” It is a nullification. It is wrong.