What’s the future of the death penalty in California after Newsom’s clemency?

By the time Gov. Gavin Newsom spared the lives of over 500 prisoners who were sentenced to death last week in the nation’s largest act of mass clemency, capital punishment had long become an afterthought in California.

The state hasn’t executed anyone since 2006. Newsom guaranteed that wouldn’t change when he issued a moratorium on the practice shortly after taking office in 2019. He later dismantled the San Quentin State Prison death chamber and sent condemned prisoners across the state to other facilities. 

Of the 548 people whose sentences he moved to commute last week, the vast majority were waiting to be appointed lawyers for appeals and challenges. Just 45 faced imminent execution if the moratorium were lifted, though that was unlikely with Newsom’s successor, Gov.-elect Xavier Becerra, saying he also would not execute anyone while in office.

And even before Newsom acted, a pending California court case that argues the death penalty is applied in such a racially biased manner that it’s unconstitutional, might end the imposition of death sentences indefinitely.

Voters as recently as 2016 indicated they wanted to keep the death penalty on the books when they passed a ballot measure to speed up executions and rejected one to repeal the practice. Death penalty opponents believe they won’t immediately have to run another campaign to repeal capital punishment if they prevail in the court case. 

Still, the contradictory status quo remains: Like about half of U.S. states, California still has the death penalty on the books. It also allows for a death sentence under broader circumstances than any other state, according to the Death Penalty Information Center. Those include the murder of a police officer, prosecutor or any other public official, and murders involving gang activity or financial gain.

Local prosecutors have vowed to continue pursuing the punishment when allowed, meaning the state is likely to slowly continue sending defendants to death row, even if the Supreme Court approves all of Newsom’s commutations.

“I think for all intents and purposes, the death penalty is over in California and nobody will be executed again,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, who chairs a state committee on revising criminal sentences. “The energy and focus and money around criminal justice reform have shifted elsewhere.”

Romano predicted advocates will turn their attention to issues like restricting solitary confinement in jails and prisons and changing the cash bail system.

It’s unclear where California voters stand, but in a nationwide Gallup poll conducted in October in the wake of a botched execution in Tennessee, American support for capital punishment dipped just below the majority for the first time in 55 years.

The sweeping commutations mark how far California has moved in three decades, from the nation’s toughest crime laws to, under Newsom, experimenting with a Nordic approach focused on rehabilitation and preparing most offenders to re-enter society. 

Despite their 2016 vote in favor of the death penalty, Californians have also since 2012 passed ballot measures to reduce criminal sentences. The Legislature has passed several laws allowing prisoners new release opportunities and the state Board of Parole Hearings earlier this year allowed some prisoners serving life without parole to gain the opportunity to be resentenced, inspiring a legal challenge from law enforcement groups. 

Even Proposition 36, the tougher-on-crime measure voters approved overwhelmingly in 2024, focused on requiring defendants in drug- and theft-related cases to undergo treatment rather than go straight to jail. Results have been mixed, with few defendants getting mandated treatments, CalMatters has found.

“It wasn’t, ‘Lock people up,’” Romano said. “It was, ‘We are going to give people rehabilitation.’”

For San Bernardino County District Attorney Jason Anderson, that “doesn’t change the fact that the law still allows for the death penalty to be sought.”

Anderson, who opposed Newsom’s commutations, is one of several district attorneys who have said they’ll continue to push for death sentences when appropriate, including in Los Angeles, Riverside and Orange counties. 

He discusses the likelihood an execution won’t happen with murder victims’ families when deciding whether to pursue the death penalty, Anderson said, but the moratorium doesn’t deter him. Nor, he noted, has it deterred juries that recommend the sentence. 

“All that other stuff is a side argument,” he said, of the long appeals process and unlikelihood of an execution.

Since Newsom’s moratorium, Anderson’s office has secured death sentences against five men. 

Another one is on the way. Louis Gabriel Lucero of Victorville pleaded guilty this year to killing his girlfriend and her two sons in 2020. Last month a jury recommended the death penalty and a judge next month will decide whether to impose it or a sentence of life without parole. If he’s sentenced to death, Lucero would be among the first to be sent to a post-clemency death row. 

Of the 40 condemned prisoners from San Bernardino County, nine had their sentences commuted automatically by Newsom; the state Supreme Court will need to review those of 31 others who had more than one felony conviction. Anderson has filed a motion to unseal their criminal records so the details of their crimes and what he called their “recidivist nature” are public as the court considers Newsom’s requests. 

The Criminal Justice Legal Foundation, which opposes the commutations, has filed similar motions. State public defenders and anti-death penalty advocates have also filed briefs supporting the commutations. 

Anderson said while he respects differences of opinion on capital punishment, he disagreed most with Newsom’s wholesale commutations, saying the governor should have considered each case individually and that if his goal was to end the death penalty he has “enough power, prestige and political savvy to put another proposition on the ballot.

“You have a law on the books that’s essentially been overridden by one person,” he said.

Newsom said, in an open letter last week to Californians explaining his decision, that he didn’t want to create two tiers of murder victims in which some perpetrators deserved to die for their crimes and others did not. 

“I carefully considered different categories of capital crimes and offender characteristics,” he wrote. “I have learned, however, from speaking with the victims harmed by these crimes, that each experiences their loss as the worst of the worst.”

Rather than propose another ballot measure, death penalty opponents are instead hoping a state court strikes down the death penalty in a case brought by the NAACP, the American Civil Liberties Union and the Office of the State Public Defender.

In a novel challenge to the death penalty, the plaintiffs argue California death sentences are broadly applied with such stark racial disparities that it violates state constitutional protections against discrimination. They say four decades of sentencing data show that Black defendants are up to 8.7 times more likely to receive a death sentence than other defendants in murder cases. Defendants are 8.8 times more likely to receive the death penalty in cases with a white victim than a non-white victim. The state Supreme Court allowed the case to move forward in August; a Sacramento County court is now hearing evidence. 

The plaintiffs seek a court order barring counties from imposing death sentences. If they prevail, the death penalty would remain in state statute, said Avi Frey, deputy director of criminal law at the ACLU of Northern California, but “any county that tried to bring a capital prosecution would first need to demonstrate that they had basically corrected” any racial disparities.

Natasha Minsker of the California Anti-Death Penalty Coalition said she’ll now advocate for district attorneys like Anderson to stop seeking the sentence. San Bernardino and Riverside counties are among the top 10 counties seeking death sentences in the nation, Minsker said.

“The reality is most district attorneys in California understand that the death penalty is a failure,” she said. “That is where we’re turning our attention, to those counties that really are outliers.”

Tinisch Hollins is a crime victim and executive director of Californians for Safety and Justice, which advocates for using state funds currently spent on incarceration on crime prevention programs instead. 

The commutations, she said, offer some finality in the death penalty debate that she hopes will allow policymakers to move on to other changes in the criminal justice system. She wants the state to expand victims’ services like cash assistance and mental health services for survivors of violence, and to consider more programs that allow prisoners to face crime victims as part of their rehabilitative efforts. And she said even those prisoners whose crimes were eligible for death affect the rehabilitation of others when they interact with other prisoners. 

“Their fate is already sealed,” she said, of those whose sentences were commuted to life without parole. “Even for people who have committed the most serious crimes and those who may not ever have the opportunity to return to society, what do we want to happen during their sentence? What do we want to put our dollars toward that will ultimately ensure our future safety?”