By David M. Greenwald
Executive Editor
Outgoing Oregon Governor Kate Brown got national attention when she commuted all 17 of her state’s death sentences to life in prison. Oregon had the luxury of *only* having to deal with 17 such sentences.
When Nevada’s outgoing governor Steve Sisolak attempted to do the same thing, he failed. A judge this week ruled that Nevada’s pardons board has the authority to grant such commutations but failed to properly notify the families of victims before the meeting.
“I think that is required to show the capital murder victim fairness and respect for his or her dignity,” Wilson said. The ruling came in response to an emergency petition filed last week by Chris Hicks, the Republican district attorney in Reno, who criticized Sisolak’s request as “unjust and undemocratic.”
“The death penalty is fundamentally broken,” Sisolak said this week.
“We do not have the wherewithal to carry out the death sentence,” Sisolak said. “So my hope is that bringing it up will encourage the Legislature to have the discussion … and handle the difficult decision that has to be addressed.”
The developments in Nevada illustrate one possible roadblock that Governor Newsom might have if he attempts to the clear death row through the commutation process.
In 2019, Governor Newsom halted executions. He has said that commutations have “long been considered” and are still under review.
At the same time, he said, “It’s more complicated in California, for many different reasons, but it’s something that’s long been considered.”
As Alexei Kosoff from CalMatters tweeted last week, “Newsom also reiterated his commitment to ending the death penalty in California.”
“But we have to process it and do it in a way we can bring more people along,” he said.
There is of course a big difference between commuting 17 sentences in Oregon and 670 in California. But clearly the pressure is now on Governor to do something more than he has.
The problem right now is that while the Governor has paused executives, if the law remains on the book, the next governor could lift the moratorium and seek to execute any inmates still under a death sentence.
A San Francisco Chronicle article quoted Laurie Levenson, a former federal prosecutor and now a professor at Loyola Law School in Los Angeles, where she directs the school’s Project for the Innocent who said that the Governor has “no sense of urgency. I don’t understand why,”
“I would urge the governor to follow the lead of neighboring states and move forward with universal clemency as soon as possible,” said Natasha Minsker, a death penalty opponent and policy adviser for the advocacy group Smart Justice California.
Minsker told the Chronicle that she believes the blanket commutation would hold up legally.
In other states, “every legal challenge to a universal grant (of clemency) has been rejected” by the courts, she said. “When it comes to a question of life or death, whether you should grant mercy, that has been our tradition for hundreds of years. If the sovereign” — a king or queen, or an elected chief executive — “believes that mercy is appropriate, who are we to judge?”
It’s not just Newsom facing increased pressure. President Biden promised to do more than he has on the death penalty as well.
In an op-ed in the NY Daily News Law Professors Rachel Barkow (NYU) and Marc Osler (St. Thomas School of Law) criticized Biden’s “cowardice on clemency.”
They say that while Biden campaigned on being “different than Donald Trump,” Biden “has stayed too close to Trump” on pardons.
They write, “Like Trump, Biden has used the tool of clemency for symbolism rather than substance, while ignoring clemency’s official process.”
Like Trump, “Biden has simply ignored those thousands of people waiting for consideration of their heartfelt pleas for clemency; in fact, he has failed to deny a single petition by presidential action even as the pile has grown into a tower.”
They added, “The 82 clemency grants he has made to individuals (and the vague pardon to unnamed marijuana possessors) are more about signaling and politics than helping real people.”
In October Osler writing in the Hill, noted, “When he was running for office, Joe Biden made a promise: to work “to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.””
Osler charged that the Biden administration has changed course, seeking the death penalty in a case in New York.
He writes, “It is an unfortunate development for an administration that is at its best when it takes a clear moral stand and sticks to it.”
Osler argues, “Biden’s initial direction was the right one, as the rational reasons to finally get rid of the death penalty are well-established: It does nothing to deter crime, it sullies our moral position internationally, it cuts against the ethic of life that underlays murder statutes themselves, it too often is targeted at innocent people, and turns out to be strikingly expensive.
“While the death penalty is often premised on the idea it is done for the benefit of the victim’s family members, it is wrong to assume that all family members are vindictive, even in the most serious cases — sometimes, they weigh in against the death penalty. Through executions, we gain nothing in terms of public safety but pay dearly in terms of heart and treasure.”
“Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” his website said in 2020.
But Berkeley Law School Dean Erwin Chemerinsky last year charged, “The Biden administration is hypocritical in simultaneously imposing a moratorium on the federal death penalty and urging that the Supreme Court reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.”
And that’s the problem – both Newsom and Biden have promised to end the death penalty, but neither has taken that last fateful step.
