California’s death penalty hasn’t carried out an execution in nearly two decades, and after Governor Gavin Newsom’s sweeping clemency action last week, legal experts say the practice may be effectively finished in the state — even though it remains on the books.
Newsom moved to commute the sentences of more than 500 death row inmates, marking the largest act of mass clemency in the nation’s history. The decision builds on a moratorium he imposed shortly after taking office in 2019, when he halted executions and later had San Quentin’s execution chamber dismantled, scattering condemned inmates to other state prisons.
Most of the 548 inmates affected by Newsom’s commutation request were still waiting for appellate attorneys to be assigned to their cases. Only 45 faced any realistic possibility of execution in the near term if the moratorium were lifted — and even that was unlikely, given that Governor-elect Xavier Becerra has said he, too, will not allow executions during his time in office.
Even before Newsom acted, a pending court case arguing that California’s death penalty is applied with such racial bias that it violates the state constitution could halt new death sentences altogether.
The politics here remain tangled. In 2016, California voters signaled they wanted to keep capital punishment, approving a measure to speed up executions while rejecting a separate measure to abolish the practice entirely. Opponents of the death penalty say they don’t believe they’ll need to mount another ballot campaign to formally end it if they prevail in court.
Still, an odd contradiction persists: California, like roughly half of U.S. states, continues to allow the death penalty — and does so under broader circumstances than any other state, according to the Death Penalty Information Center. Those circumstances include the killing of a police officer, prosecutor or other public official, as well as murders tied to gang activity or committed for financial gain.
Local prosecutors have vowed to keep pursuing capital cases where the law allows, meaning California will likely continue adding, slowly, to its death row population even if the state Supreme Court signs off on all of Newsom’s commutations.
“I think for all practical purposes, the death penalty has been abolished in California, and no one will ever be executed again,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, who also chairs a state panel that reviews criminal sentences. “The energy, attention and money that go into criminal justice reform have shifted elsewhere.”
Romano predicted advocates will now turn their focus toward issues like restricting solitary confinement in jails and prisons and reworking the cash bail system.
It’s unclear exactly where California voters stand today, but nationally, support for capital punishment has been slipping. A Gallup poll conducted in October, following a botched execution in Tennessee, found that national support for the death penalty had dropped below 50% for the first time in 55 years.
The scale of Newsom’s commutations underscores how dramatically California’s approach to crime and punishment has shifted over the past three decades — from some of the toughest criminal statutes in the country to, under Newsom, an experiment with a more Scandinavian-style model that emphasizes rehabilitation and preparing most offenders to re-enter society.
Despite voting to preserve the death penalty in 2016, Californians have also approved several ballot measures since 2012 aimed at softening criminal sentences. State lawmakers have passed legislation giving more inmates a shot at parole, and the state’s parole board earlier this year opened the door for some inmates serving life without parole to have their sentences reviewed — a move that prompted a lawsuit from law enforcement groups.
Even Proposition 36, the tougher-on-crime measure voters overwhelmingly approved in 2024, focused largely on pushing defendants in drug and theft cases into treatment rather than straight to jail. The results have been mixed, and CalMatters reporting has found that few defendants have actually received court-ordered treatment.
“It wasn’t about ‘lock people up,'” Romano said. “It was about ‘let’s offer these people rehabilitation.'”
San Bernardino County District Attorney Jason Anderson sees it differently. “That doesn’t change the fact that the law still allows for the death penalty to be sought,” he said.
Anderson, who opposed Newsom’s commutations, is among several district attorneys — including those in Los Angeles, Riverside and Orange counties — who say they will keep pursuing capital cases when circumstances warrant it.
Anderson said he weighs the likelihood that an execution will never actually occur when discussing the decision with victims’ families, but that the moratorium hasn’t changed his office’s approach — nor, he said, has it discouraged juries from recommending death sentences.
“Everything else is a secondary argument,” he said, referring to the lengthy appeals process and slim odds of execution.
Since Newsom’s moratorium took effect, Anderson’s office has secured death sentences against five men. Another case is pending: Louis Gabriel Lucero of Victorville pleaded guilty this year to murdering his girlfriend and her two children in 2020. Last month, a jury recommended the death penalty, and a judge will decide next month whether to impose it or life without parole. If sentenced to death, Lucero would be among the first sent to death row after the mass clemency.
Of the 40 condemned inmates from San Bernardino County, nine had their sentences automatically commuted under Newsom’s order; the state Supreme Court must still review 31 others who had additional felony convictions. Anderson has filed a motion to make those inmates’ criminal histories public so the details of their crimes — and what he called their “recidivist nature” — remain part of the public record while the court reviews Newsom’s petitions.
The Criminal Justice Legal Foundation, which opposes the commutations, has filed similar motions. State public defenders and anti-death penalty advocates have filed briefs supporting Newsom’s action.
Anderson said he respects differing opinions on capital punishment but strongly disagrees with blanket commutations, arguing Newsom should have reviewed each case individually — and that if the governor wanted to end the death penalty outright, he had “enough power, prestige and political savvy to put another measure on the ballot.”
“There’s a law on the books that’s effectively been nullified by one person,” Anderson said.
In an open letter to Californians explaining his decision last week, Newsom said he didn’t want to create two classes of murder victims — those whose killers deserved to die and those whose killers didn’t.
“I carefully considered the different categories of capital crimes and the characteristics of the offenders,” he wrote. “But in speaking with victims of these crimes, I’ve learned that each person experiences their loss as the worst of the worst.”
Rather than pursue another ballot measure, opponents of capital punishment are now pinning their hopes on a state court case brought by the NAACP, the American Civil Liberties Union and the state Public Defender’s Office, which argues that California’s death penalty is unconstitutional.
In an unusual legal challenge, the plaintiffs contend that death sentences in California have been applied with stark and persistent racial disparities, violating the state constitution’s anti-discrimination protections. They point to four decades of sentencing data showing that Black defendants are up to 8.7 times more likely to receive the death penalty than other defendants in murder cases, and that defendants are 8.8 times more likely to be sentenced to death in cases involving white victims compared to cases involving victims of color. The state Supreme Court allowed the case to proceed in August, and a Sacramento County court is now hearing evidence.
The plaintiffs are seeking a court order barring counties from pursuing the death penalty. If they succeed, capital punishment would technically remain on the books, said Avi Frey, deputy director of criminal justice for the ACLU of Northern California — but “any county that tries to initiate a capital case would first have to show that it has corrected” any racial disparities in its practices.
Natasha Minsker of the California Coalition Against the Death Penalty said her organization will now push district attorneys like Anderson to stop seeking capital punishment altogether. She noted that San Bernardino and Riverside counties rank among the top ten counties nationwide for pursuing death sentences.
“The reality is that most district attorneys in California understand that the death penalty is a failure,” she said. “That’s where we’re focusing our attention — on the counties that are outliers.”
Tinisch Hollins, a crime survivor and executive director of Californians for Safety and Justice, advocates for redirecting state funds currently spent on incarceration toward crime prevention programs.
She said the commutations offer a kind of closure on the death penalty debate, which she hopes will free lawmakers to focus on other criminal justice reforms. Hollins wants the state to expand victim support services, including financial assistance and mental health care for survivors of violence, and to explore more programs that allow incarcerated people to engage directly with crime victims as part of their rehabilitation. She noted that even inmates whose crimes once carried the possibility of a death sentence can play a role in helping rehabilitate others.
“Their fate is already sealed,” she said, referring to those whose sentences were commuted to life without parole. “Even for people who have committed the most serious crimes, and who may never have the chance to re-enter society, what do we want to happen during their sentence? What do we want to invest our money in to ultimately ensure our future safety?”
Original source: CalMatters
