Two years after Governor Gavin Newsom ordered a moratorium on executions in California, he is preparing to appoint an attorney general from a field of potential candidates that includes some of the state’s leading critics of the death penalty.
With the current Atty. General Xavier Becerra for Senate endorsement as President Biden’s Secretary for Health and Human Services, criminal justice reform activists have recommended candidates including a district attorney who no longer requests the death penalty for murder and elected officials who backed unsuccessful votes Measures to Abolish the Death Penalty.
“I’m sure the governor will be looking for an attorney general who shares his opposition to the death penalty,” said Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California, an anti-capital group. “I would hope that we have an attorney general who wants to persuade us to abolish the death penalty.”
Newsom staked out his position in 2019 when it issued an executive order moratorium on executions, despite the fact that the death penalty was still legal and part of the state constitution. The order at the time affected 737 inmates on California’s death row.
“Our death penalty system has been a failure in all respects,” Newsom said at the time. “It has discriminated against defendants who are mentally ill, black and brown, or who cannot afford expensive legal representation.”
Under state law, all death sentences are automatically appealed to the California Supreme Court for review.
Bill Lockyer, who served as attorney general from 1999 to 2007, said whoever appoints Newsom to the post is legally bound by the California constitution to enforce state law – and that includes defending death sentences. Becerra has cited this obligation to defend judgments in capital cases despite voting for an unsuccessful 2016 initiative to lift the death penalty.
Lockyer noted that former Governor Jerry Brown and Vice President Kamala Harris both publicly opposed the death penalty but defended death sentences while serving as California attorney general.
However, with some prosecutors pushing for death row inmates to be sentenced to life imprisonment, the attorney general is able to exercise discretion with local prosecutors, said DeBerry, who served as Newsom’s deputy chief of staff as San Francisco mayor.
The way the state’s death penalty is applied is currently being challenged by a group of five progressive local prosecutors, including two suggested for the work of the Attorney General – Santa Clara County Dist. Atty. Jeff Rosen and Conta Costa County Dist.Atty. Diana Becton.
Becton and Rosen signed an amicus letter in October alleging the state’s death penalty system was against the constitution. The letter states that prosecutors “believe that death sentences will be arbitrarily passed under current California death penalty laws”.
The two prosecutors also signed a January letter from the Fair and Just Prosecution group urging Biden to stop the death penalty at the federal level.
“The death penalty system is inherently flawed and disproportionately applied to people of color and people with serious mental health problems,” said Becton, who is black.
Rosen, along with prosecutors in San Francisco and Los Angeles Counties, decided not to seek the death penalty in homicide cases.
“In the past, I have supported the death penalty by looking at the heinous murders through the eyes of victims whose lives have been taken and their families who may never find peace,” Rosen said when he made the policy change in July . “But I also trusted that we as a society can ensure the fundamental fairness of the legal process for all people. With every discharge, with every story of racial injustice, it becomes clearer to me that this is not the world we live in. “
Two other officials, Sacramento Mayor Darrell Steinberg, and MP Rob Bonta (D-Alameda) allegedly tried to get voters to repeal the death penalty.
In 2016, Steinberg, along with Newsom and others, supported Proposition 62, the unsuccessful initiative that would have overturned California’s death penalty and instead made life without parole for murder.
Three years later, Bonta co-authored Amendment 12 to the Assembly, which would have included a measure in the state vote to abolish the death penalty, but the proposal did not move forward.
Rick Chavez Zbur, an attorney advocated for attorney general by LGBTQ leaders, supported Newsom’s 2019 execution moratorium, writing in a comment published in Advocate at the time: “California’s broken death penalty system is neither fair nor equal . ”
“It is being disproportionately applied to members of society’s most vulnerable communities,” wrote Zbur, executive director of Equality California, a statewide LGBTQ + civil rights organization.
The death penalty has also been imposed in the past on two members of Congress whose supporters have urged the governor to consider them attorney general – Democratic Representatives Ted Lieu of Torrance and Adam B. Schiff of Burbank.
“I am against the death penalty,” Lieu said when asked recently. “Studies also show that minority defendants are more likely to be sentenced to death than white defendants, showing the injustice of a penalty that is irreversible.”
Schiff, a former federal prosecutor, “supports the governor’s moratorium on executions,” a spokesman said on Sunday, “as a general political matter.”
Schiff’s consideration for the attorney general’s work is denied in a letter to Newsom earlier this month by eight leaders of the criminal justice reform movement, including Melina Abdullah, co-founder of Black Lives Matter-Los Angeles.
Concerns cited by leaders included Schiff’s 2017 vote in favor of the Thin Blue Line Act, an unsuccessful bill that would have extended the use of the federal death penalty to those convicted of murder or targeted combat against a law enforcement officer and other first responders.
When Schiff ran for the Senate in 1996, he supported the death penalty, the Los Angeles Times reported at the time.
In an opinion pillar published in the Los Angeles Daily News in 2000, Schiff wrote: “I understand that many people have a deeply ingrained philosophical objection to the death penalty. I respect their point of view, although I do not share that point of view. I have always believed that this strictest sanction prevents some criminals from leading a human life. “
California Supreme Court Justice Goodwin Liu, who was assisted for the Attorney General’s Office by a group of prominent attorneys, legal scholars and community leaders including Dean Erwin Chemerinsky of UC Berkeley Law School, has faced death penalty decisions and was made critical of that System.
In a concluding 2019 statement confirming a death sentence in the People vs. Potts case, Liu wrote that the death penalty in California is “an expensive and dysfunctional system that fails to deliver justice or closure on time, if at all,” and said it is “long overdue” to discuss its effectiveness and cost.
“Since joining this court, I have voted to uphold dozens of death sentences, and I will continue to do so when the law requires it,” Liu wrote. “But the promise of justice in our death penalty system is a promise California couldn’t keep.”
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation for the death penalty, said he feared Newsom would choose an activist attorney general to crack down on death sentences despite the fact that the death penalty is legal under California law.
“In my opinion, it is highly inappropriate for the attorney general to refuse to defend a judgment that is legal and valid simply because he disagrees with the law for political reasons. That doesn’t mean that he can’t, ”said Scheidegger.