Calif. Supreme Court to Consider Freezing Death Penalty Trials

In March, Gov. Newsom announced a moratorium on the execution of California's death row inmates

California Gov. Gavin Newsom / Getty Images

In the wake of Governor Gavin Newsom's (D.) moratorium on the death penalty, the California Supreme Court is now weighing whether to order a halt on capital litigation in the state.

The state high court ordered a temporary stop to the sentencing trial of Jade Douglas Harris, the Los Angeles Times reports, as it weighs whether Newsom's moratorium means Harris, charged with three murders, cannot receive a fair trial.

In March, Newsom announced an indefinite moratorium on the execution of California's 737 death row inmates. The moratorium — which flew in the face of the regularly expressed will of California voters at the polls — saw the state's death chamber closed, which Newsom has promised will remain true so long as he is governor.

But while executions have been halted, death penalty prosecutions continue, at least in the jurisdictions of some state attorneys. Harris's attorneys pose the question of whether their client can receive a just sentence, given the uncertainty now shrouding the death penalty's future.

Thanks to Supreme Court precedent, death penalty cases have two phases: one in which the defendant is found factually guilty or innocent, and a second in which a separate jury weighs "aggravating" and "mitigating" facts about the crime and the defendant to determine if the death penalty is merited. Harris's lawyers have argued that in order for this second phase to be fair, jurors have to believe that if they hand down a death sentence, it will actually be carried out.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and a death penalty expert, told the Times that this concern was overwrought.

"Newsom's moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway," Scheidegger said. "And everybody pretty much knows that."

Still, the state Supreme Court seems to think the issue is at least serious enough to merit further hearing. It has until August 30th to decide whether to take the case in full.

Meanwhile, the continuation of capital prosecutions has thrown a wrench into one of Newsom's justifications for the moratorium: not having to pay the exorbitant costs of death penalty trials. The promised savings have failed to materialize, the Sacramento Bee reports.

That is because executions themselves are exceedingly cheap — drugs like thiopental, pentobarbital, and midazolam just do not cost much. What is expensive is prosecuting death penalty cases, thanks largely to the two-phase process, and to the efforts of abolitionists to drag out cases. It also costs a great deal to house California's death row inmates, who are now de facto life-without-parole convicts as long as Newsom is in office.

"The moratorium stops executions," Robert Dunham, executive director of the Death Penalty Information Center, told the SacBee. "It doesn't stop the machinery of death from moving forward."