Governor Gavin Newsom this week put a moratorium on California executions. That action in itself shouldn’t have an impact on the Supreme Court. However, as Don Thompson reports for the Associated Press, the governor “said he also may commute death sentences,” which would directly bring the court into the middle of the death penalty controversy.
The moratorium just puts a temporary hold on, but does not eliminate, death sentences. It also should not impede district attorneys from seeking the death penalty in future cases. Nor does it negate the Supreme Court’s constitutional duty to review on direct appeal every judgment of death. In fact, the court just announced it will hear argument in three more death penalty appeals next month.
Commutation of a death sentence is another story. That would permanently prevent an execution. And, unlike a moratorium, it would implicate the court.
The state Constitution gives the governor the power to “grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment.” The reprieve authority, which is what Governor Newsom used to impose a moratorium, seems unconditional. Pardons and commutations, however, must be approved by the court for any “person twice convicted of a felony,” which, according to the article, includes more than half of death row’s inmates.
The article says that Newsom is “considering commuting death sentences as ‘a next step’ once state Supreme Court justices explain why they blocked 10 non-death commutations sought by former Gov. Jerry Brown last year.” (Link added; actually one of the 10 was a pardon, not a commutation.) If commutations of capital sentences are dependent on a Supreme Court explanation, they might never happen. To date, the court has given no indication that it will state its reasons for the 10 rejections despite urgings that it do so. (See here, here, here, and here.)