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March 22, 2019

California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions

This Los Angeles Times piece, headlined "Gov. Newsom may prohibit new death sentences, setting up possible conflict with Becerra," it appears that the Governor of California may not be content with just delaying all possible executions during his time in office.  Here are some details:

A week after issuing an executive order imposing a blanket moratorium on the execution of California death row inmates, Gov. Gavin Newsom said he is considering a plan to prohibit any new death sentences in local criminal cases.

Newsom’s pronouncement could create conflict with another top Democratic leader, state Atty. Gen. Xavier Becerra, who has supported capital punishment, even though the governor said he wants to work collaboratively with the attorney general.

Newsom reiterated his desire to abolish the death penalty and said he hopes to work with Becerra and others to determine whether, as governor, he can act “on behalf of the people in this state to no longer prosecute death.”

“There is a protocol of death and an administration of death in the state of California, and it consumes the court’s time, it consumes the criminal justice system, it exhausts the soul and the pocketbook,” Newsom said during a conference call with reporters from ethnic news outlets Tuesday. “I would ultimately like to shut down that system of death.”

Though it is not entirely clear how Newsom would carry out such an order, he could either have Becerra direct local district attorneys not to seek the death penalty or order Becerra to not defend appeals. Both approaches would probably face legal challenges....

Asked whether the attorney general will stop defending death sentences on appeal or direct county prosecutors to stop seeking death sentences, a Becerra spokeswoman said he is reviewing what role his office will play.  “The Department of Justice will work with Governor Newsom and his team as he implements his executive order and will continue to hold criminals accountable,” spokeswoman Bethany Lesser said.

After the Times published this story, Becerra requested an opportunity to clarify his position on the death penalty. In a telephone interview Thursday, he declined to answer if he supported or opposed capital punishment. He said only that, as attorney general, it was his duty to enforce the laws in California, the death penalty among them.  “Where I stand personally on it, I have real reservations about the death penalty. I think there is ample proof that it has not worked the way we would want when it comes to undertaking the most severe form of punishment that’s not reversible,” Becerra said....

The U.S. 9th Circuit Court of Appeals in San Francisco on Monday asked the attorney general’s Department of Justice to indicate whether the governor’s moratorium will affect a death penalty case involving Martin Kipp, who was convicted in the 1983 slaying of Antaya Yvette Howard of Huntington Beach, a former basketball star at Marina High School.  “The Office of the Attorney General is in the process of determining the full effect of the Executive Order on death penalty cases,” the state Department of Justice told the court in a letter.

Even if Becerra disagrees with Newsom, he might not have a choice if the governor decides to force the issue. Because the California Constitution gives the governor “supreme executive power” over the executive branch, Newsom could order Becerra to take action that could suspend all death penalty prosecutions across the state. “In California’s executive branch, the governor has the final word,” said David A. Carrillo, executive director of the California Constitution Center at Berkeley Law.

In 1981, the California Supreme Court ruled that the governor’s constitutional powers give him direct authority over the attorney general. “The constitutional pattern is crystal clear: if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the ‘supreme executive power’ to determine the public interest,” the court decision stated....

The constitution also states that the attorney general, as the state’s chief law enforcement officer, has direct supervision over every county district attorney “in all matters pertaining to the duties of their respective offices” — opening up the possibility that he could order locally elected prosecutors to cease seeking the death penalty in murder trials.

Any attempt by the attorney general to dictate how a county district attorney can handle murder prosecutions would almost assuredly be unconstitutional and challenged in court, said Assemblyman Jordan Cunningham (R-Templeton), a former deputy district attorney. District attorneys serve independent of the attorney general, he said. “There’s a lot of D.A.s who I have spoken to, who I know, who aren’t happy with the moratorium that we have now,” Cunningham said. “We don’t live in a system where one person gets elected governor and they get to do what they want by executive fiat.”

Prior related post:

March 22, 2019 at 05:56 PM | Permalink

Comments

He will sign and order commuting all death sentences, current and future, therefore prosecutors will not seek it.

Posted by: Dudley Sharp | Mar 23, 2019 4:24:25 AM

The governor's actions will unquestionably increase the number of life sentences in California.

Posted by: William Jockusch | Mar 23, 2019 6:30:43 AM

If Newsom does that, he will have wildly overplayed his hand. He may invite more lawsuits than CA has filed against Donald Trump. I doubt the courts want to wade into this.

Posted by: David | Mar 23, 2019 11:19:49 AM

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