To my conservative friends who like when chief executives push the envelope on “national emergencies” and executive orders, I offer you California Gov. Gavin Newsom. Last week, he grabbed national headlines for his decision to grant reprieves to all 737 prisoners on California’s death row based on his own personal feelings: “I will not oversee execution of any person,” he said in his unexpected Executive Order N-09-19. At the subsequent press conference, he said, “This is about who I am as a human being. This is about what I can or cannot do.”
Just as the president’s border emergency almost certainly is legal based on the powers that Congress had previously ceded to the president, the governor’s decision is almost certainly legal, too. Governors have the power to pardon people and give reprieves. But just as advocates for limited government believe that presidents should let Congress take the lead on spending matters, they too should prefer that governors stick to the spirit and not just the letter of the law. Such reprieves are meant for particular cases — not as a means to change public policy.
Dating back to his gubernatorial terms in the 1970s and 1980s and as attorney general in the 2000s, Jerry Brown had also been a staunch opponent of the death penalty. But he vowed to uphold the will of the voters and the law. Despite our reputation as a flaky liberal state, California voters have long been supportive of “law and order” policies. They passed the toughest-in-the-nation “three strikes and you’re out law.” And Democratic governors have traditionally refused to let Republicans outflank them on the right on crime and public-safety issues.
I’ll never forget that 1999 gubernatorial debate between Republican Attorney General Dan Lungren and Democratic Lt. Gov. Gray Davis. Davis argued in favor of executing 14 year olds, and pointed to Singapore, which executed drug dealers, as a starting point for crime policy. A lot has changed since then, of course. As crime rates hit historic lows, the state — via legislation and initiative — has softened “three strikes” and other crime policies. Nevertheless, the death penalty remains fairly popular here, even though it hasn’t been used since 2006.
In 2016, voters rejected by a solid 53 percent to 47 percent margin, Proposition 62, which would have eliminated the death penalty and replaced it with life in prison without parole. It’s not the emotional topic that it was in 1986, when voters removed the California Supreme Court’s Chief Justice Rose Bird (and two associate justices) from the court after a reconfirmation election because of her categorical opposition to the death penalty. (In California, governors appoint the justices, but voters reconfirm them.) She overturned the penalty in each of the 64 such cases that came before her and was accused of substituting her own views for state law.
I actually agree with some of Newsom’s policy points. It is so rarely used that it makes Newsom’s declaration largely symbolic. With the endless appeals process, death penalty sentences are far costlier than life-in-prison sentences, and there’s virtually no chance that could be changed — even after voters approved (also in 2016) an initiative designed to speed up the execution process. The executive order noted that since 1978 “California has spent $5 billion on a death penalty system that has executed 13 people.” Even by California standards, that’s wasteful.
The death penalty is effectively kaput in major urban areas anyway, given the politics of those regions. Aside from the various disparities in application that Newsom pointed to in his order and press conferences, there’s also a geographic disparity. As one 2009 report noted, it’s mainly applied in more rural parts of the state. And, again, because it isn’t actually used, it’s hard to believe that it imposes any kind of deterrent. There’s also the chance of the government getting it wrong. If anything, removing the death penalty takes death-row inmates off of the front pages and into the bowels of lifer obscurity.
Given how little was actually at stake given that the state has had a de facto moratorium on capital punishment for a decade, it would have been far more reasonable for the governor to use the legislative or initiative process to change the law rather than just issue an edict. But as CALmatters columnist Dan Walters explained, that’s not Newsom’s modus operandi.
Walters compared it to 2004, “when, as the newly elected mayor San Francisco, he directed officials to issue marriage licenses to same-sex couples in defiance of a state law passed by California voters just a few years earlier.” Walters then quoted a more recent Newsom interview regarding those marriages, in which he said: “I had no right to do this. We didn’t have the formal authority. But we tried to exercise our moral authority and challenge the laws.” I can only imagine what Newsom would say if a future Republican governor pushed the envelope in some yet-to-be-determined way to roll back the state’s abortion laws based on his own sense of morality.
Presidents and governors have immense powers, but they are not supposed to be kings who pass edicts reflecting their own moral judgments. They are supposed to be political leaders who are attuned to the desires of the people who elected them. Conservatives who are OK with Trumpian envelope-pushing need to think about life under Obamaian or Newsomian envelope-pushing and vice versa. This is not the right way to do public policy in an at least nominally free and democratic nation.
Steven Greenhut is Western region director for the R Street Institute. Write to him at email@example.com.