A Daily Journal column last week urged Governor Gavin Newsom to commute all California death sentences and the Supreme Court to sign off on all commutations that the State Constitution doesn’t allow Newsom to effect unilaterally, i.e., for those inmates who have been “twice convicted of a felony.”

Ron Matthias, a retired California senior assistant attorney general who specialized in homicide appeals, responds in a letter to the newspaper today. He asserts that the constitutional limit on a governor’s clemency powers “should block Newsom from pursuing, or achieving, the ‘blanket commutations’ [advocated in the column].”

The Supreme Court has said that its review of a governor’s request for clemency approval is a deferential one, “to determine whether the applicant’s claim has sufficient support that an act of executive clemency, should the Governor choose to grant it, would not represent an abuse of that power.” (Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897, 897; see here.) Matthias says a blanket commutation of death sentences by Newsom would indeed be an abuse of power.

The letter relies on two facts: (1) running for governor in 2018, Newsom promised that, regardless of his personal opposition to capital punishment, he would respect the will of the voters on the issue and (2) the voters approved the State’s death penalty law in 1978 and, in 2016, both rejected an initiative to abolish the death penalty and approved a competing ballot measure designed to speed up executions (see here). It then argues:

“A ‘blanket’ commutation effectively nullifies an authorized penalty in every instance of its application. When attempted against an ordinary sentencing provision enacted by the legislature, it would amount to a veto well past the time that option was available to the governor; if targeted against a provision enacted directly by the voters — such as California’s death penalty law — it would amount to a veto that was never within the governor’s authority to exercise. A clearer abuse of executive power would be hard to imagine.”

Related:

The Supreme Court’s part in any possible commutation of all California death sentences

“Commute them all”

Governor Newsom’s death penalty actions shouldn’t affect the Supreme Court . . . yet

Claiming “racial discrimination infects the administration of California’s death penalty,” Governor submits amicus brief supporting defendant’s appeal

“Jerry Brown Has the Power to Save 740 Lives. He Should Use It.”

Despite prosecutors’ fears, still no evidence of mass (or any) death penalty commutations

Supreme Court explains its role in evaluating gubernatorial pardons and commutations