Gavin Newsom's Shameful Moratorium

Getty Images
March 13, 2019

In defiance of the voters of his state, Democratic governor of California Gavin Newsom on Wednesday announced an indefinite moratorium on the death penalty in the Golden State.

Newsom's executive order will make California the fourth state in the union to have a governor-imposed moratorium, alongside the 20 states which have fully abolished capital punishment. It will also indefinitely spare the 737 convicted murderers on the state's death row, although Newsom has not yet opted to simply commute those sentences as other governors have.

Newsom is most likely stopping short of commutation because he knows that it would even further contravene the will of the voters of California. In the 2016 election, they voted by a seven-point margin against a ballot measure, Proposition 62, to repeal the death penalty in the state—a wider margin than that by which they voted down another abolition proposal four years prior. Californians instead backed a separate proposal, Proposition 66, which imposed a statutory limit on the length of the death penalty appeals process.

While campaigning for Prop. 62, Newsom promised that if elected governor he would "be accountable to the will of the voters" and "not get my personal opinions in the way of the public’s right to make a determination of where they want to take us" on the death penalty. Wednesday's moratorium suggests he was lying when he said that.

His about face is evidence that in reality, the governor serves another constituency altogether: the national anti-death-penalty lobby, which is in the midst of an anti-democratic campaign to produce the appearance of a consensus against the death penalty out of procedural and rhetorical smoke and mirrors.

As much is clear from the arguments Newsom made in his remarks preceding the signing, relying on the profound untruths routinely disseminated by abolitionists. He claimed, for example, that the death penalty discriminated on the basis of race, even though eleven out of the thirteen Californians executed since 1976 have been white.

He relied also on the abolitionist trope that the death penalty litigation is massively expensive and takes decades to resolve. This is true, but not for inherent reasons—in principle, executing someone should be cheaper than imprisoning them for life.

However, unending appellate litigation by lawyers actively opposed to capital punishment means that some inmates have been languishing on death row for more than thirty years. Their guilt is usually not reasonably in doubt; rather, California has not had an execution since 2006 because of non-stop challenges to its lethal injection protocol, a last-ditch effort to delay executions.

This obdurate obstructionism, followed by the bald-faced assertion that the death penalty is somehow innately inefficient, is a hallmark of the abolition movement. Newsom's anti-democratic moratorium is almost certainly part of a larger effort to fabricate, out of whole cloth, evidence that the death penalty is now in violation of "evolving standards of decency," the measure by which, since 1971, the Supreme Court has weighed capital punishment's permissibility under the Eighth Amendment.

Shilpi Agarwal, an attorney at the abolitionist American Civil Liberties Union, perfectly articulated this goal in an interview with the New York Times, describing Newsom's move as part of a broader effort to change the "narrative."

"[California] is a state people look to to set the tone for national policy," Agarwal said. "The fact that so many states have abolished the death penalty—but California hasn't—has given people cover for this narrative that people are still supportive the death penalty."

That "narrative" is founded in undeniable fact. Thirty states preserve the death penalty. Since 1971, not a single year has gone by that a majority of Americans have not told Gallup that they support the death penalty for someone convicted of murder. This figure in fact undercounts opposition to death penalty abolition: a Quinnipiac poll released last year found that 64 percent oppose abolition, including majorities of men and women, and white, black, and Hispanic Americans.

In light of this consistent, majority support, it is little surprise that Newsom and his allies need anti-democratic workarounds and dishonest rhetoric to achieve their goals. But who are they acting in the name of?

Certainly not the victims of heinous criminals. Rather, it is for the benefit of men like Randy Kraft, who was convicted of 16 murders but may have committed as many as 67; or Charles Ng, convicted of the abduction, rape, and murder of victims totaling seven men, three women, and two baby boys; or Albert Greenwood Brown, who abducted, raped, and strangled a fifteen-year-old girl, then called her mother to leave taunting messages about the murder.

When abolitionists like Newsom argue that moratoria lead to justice, we need only to look to Pennsylvania. There, Democratic governor Tom Wolf declared a moratorium like Newsom's in 2015, calling the state's capital punishment regime "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive."

As few can forget, three years later a deranged, white-supremacist gunman burst in on the Pittsburgh, Pennsylvania-based Tree of Life Synagogue, shooting and killing 11 Jews in the midst of their Saturday morning worship. The gunman’s guilt is not in dispute, nor is the heinousness of his crime—not even the most hardened death penalty opponent can point to his case and find an excuse as to why we should be cautious about executing him. But Wolf's moratorium, far from rectifying injustice, in fact renders the state of Pennsylvania incompetent to carry out the full measure of justice.

There are reasonable arguments to be had about the efficacy of the death penalty for deterring crime. But deterrence is not the primary purpose for which capital punishment exists, nor the primary reason it is so consistently supported by Americans of all stripes. Rather, it is because we know that some heinous crimes—the Tree of Life shooting, the murder of nine worshippers at the Emmanuel AME church in Charleston, the massacre of twenty children and six adults at Sandy Hook Elementary—can only justly be answered with the ultimate penalty.

The voting public has made clear, time and time again, that this is their view. Newsom's shameful moratorium, couched in the language of moral superiority, in fact takes sides against not only his constituency, but also the victims of heinous crimes, just to stand with men convicted of horrific evil. There is nothing just about that.

Published under: Gavin Newsom