A Going-Away Gift for Death Row

Gavin Newsom announced Thursday that he will convert all 548 of California’s death sentences to life without parole. Juries handed down every one, and judges upheld them. One man rewrote them all with about two months left in office.

Newsom has the legal power to do this. He shouldn’t have used it this way. The blanket order overrides voters who twice kept the death penalty, treats 548 separate verdicts as one, and leaves victims’ families out of the process.

I’m a husband, a father of three sons, and I’ve coached youth sports for years. Coaching teaches you that consequences only work when they land on the right person. My degree is in criminal justice, and my expert-witness work lives in fiduciary duty, which matters in a minute.

Nobody walks out, and the convictions stand. Clemency for anyone convicted of a felony more than once needs the state Supreme Court’s approval, and Newsom’s office says 382 cases need it. At least four of the seven justices must agree. It is the largest act of mass clemency in American history, topping Illinois Gov. George Ryan, a Republican, who commuted 167 sentences in 2003 after he studied all 167 cases. Newsom’s letter says sorting cases would split murder victims into two classes. Juries already did the sorting, one defendant at a time.

Voters weighed in too. They rejected repeal 52% to 48% in 2012 and, in 2016, rejected it again, 53% to 47% while passing Proposition 66 to speed up executions. Newsom’s letter acknowledges that voters kept the death penalty, and he said in 2019 he would back a repeal measure if the Legislature put one on the ballot. It never did, so he reached for the one tool that doesn’t need voters. A fiduciary who disagrees with a principal’s instructions can argue, ask for new ones, or resign. Quietly substituting a personal preference isn’t an option. A governor isn’t a trustee, yet voters extended similar trust.

Victims’ families got the worst of it. Topo Padilla of Crime Victims United said the order puts “one man espousing his religious beliefs” above a jury, a judge, and the voters. In 2011 Arnold Schwarzenegger cut a former Assembly speaker’s son’s sentence from 16 years to seven without warning the victim’s family, and the Legislature answered with Penal Code section 4805, which requires notice. In 2015, in Santos v. Brown, an appeals court held that Marsy’s Law doesn’t restrict a governor’s clemency power. That statute is a rule for one prisoner at a time. Nobody built it for 548.

Families don’t speak with one voice. Marc Klaas, whose daughter Polly was murdered in 1993, opposes the commutation. Her stepsister, Jess Nichol, supports it. That argues for a process that hears each family before the decision, not after.

The people in question aren’t abstractions. Richard Allen Davis kidnapped 12-year-old Polly Klaas from a slumber party in 1993 and killed her. Charles Ng was convicted of 11 murders at a Sierra Nevada cabin, and his prosecution ran about $20 million by one estimate. Joseph Naso, the “Alphabet Killer,” was sentenced to death in 2013 for killing four women between 1977 and 1994. Wayne Adam Ford, a trucker, walked into a sheriff’s station in 1998 with a woman’s severed breast and confessed. Newsom’s letter says these prisoners die behind bars, and I take him at his word for these 548. Life without parole isn’t always final, though. In 2023 Newsom himself asked the state Supreme Court to approve commutations opening parole hearings to such prisoners.

The strongest argument on the other side is innocence. The Death Penalty Information Center counts more than 200 death row exonerations nationwide since 1973, and nobody wants to execute the wrong person. I agree. That argues for reviewing each case, which the courts already do.

Supporters also call the system broken and expensive. Broken is easy to prove. California has executed only 13 people since 1978, the last in 2006. Lonnie Franklin, the “Grim Sleeper,” reached death row in 2016 and died in his San Quentin cell in 2020. Death row became Hotel California with a lethal injection chamber nobody used. On cost, the Legislative Analyst estimated in 2016 that repeal, including future cases, would save around $150 million a year. Part of that depended on future trials this order doesn’t end, and I found no published estimate for this action, so I won’t invent one.

A broken machine argues for repair. In 2016 the Proposition 66 campaign told voters to “mend it, don’t end it”, and voters agreed. In 2019 the governor imposed a moratorium, which is one way to avoid testing whether the repair works.

Newsom writes that “state-sanctioned killing is incompatible with California’s values.” California voters also wrote abortion rights into the state constitution in 2022, 67% to 33%, and Newsom campaigned for it. Defenders see no conflict, since one involves bodily autonomy and the other punishes a convicted killer. That’s a serious argument. For those of us who see the unborn as persons, though, the state shields the convicted and withholds protection from the innocent. The Church I was raised in calls the death penalty inadmissible while its teaching on abortion stands. I disagree with half of that ethic, but I respect its consistency.

Three fixes would help. The Supreme Court should rule on each of the 382 cases on its own record and hear from prosecutors and victims’ families. The Legislature should rewrite section 4805 to require advance written notice to every victim’s family before any mass commutation. And if Newsom is right that Californians have moved on, a ballot measure will say so. Voters have turned down repeal twice, and they’re entitled to a third say.

Seneca wrote On Clemency for the young Nero, and he still got the rule right: to pardon everyone is as great cruelty as to pardon none. Newsom calls his decision a matter of conscience, and he’s entitled to one. Voters were entitled to a vote, jurors to be taken seriously, and families to a say before the pen moved. I’ve coached enough games to know what happens when the referee rewrites the rulebook in the final two minutes.