BERKELEY, Calif. — As the California Supreme Court considers Gov. Gavin Newsom’s unprecedented effort to commute all 548 death sentences in California to life imprisonment without the possibility of parole, UC Berkeley law professor Jonathan Simon argues that the court’s role should be narrowly limited to determining whether the governor has abused his constitutional authority.
In an interview with the Vanguard, Simon said the historical purpose of the court’s review was to guard against corruption rather than second-guess the governor’s judgment about whether individuals sentenced to death deserve clemency.
“The legislative history suggests a concern with the potential for a governor to abuse their power, for example through indication of corruption being involved,” Simon said.
He added that the California Supreme Court has not definitively interpreted the scope of its review, but he would be surprised if it undertook a broader examination of the merits of individual commutations.
“I would be surprised if it called for more of a substantive review of the worthiness of the individual as that would usurp the power granted to the governor,” Simon said.
Newsom announced Nov. 5 that he intends to commute every death sentence in California, a move that would effectively eliminate the possibility of executions for the state’s current death row population while leaving those individuals incarcerated for life without parole.
Under Article V, Section 8 of the California Constitution, the governor must obtain a recommendation from a majority of the California Supreme Court before granting clemency to individuals who have been twice convicted of felonies.
That requirement applies to approximately 382 of the 548 people affected by Newsom’s announcement, making the court’s review a critical component of the governor’s effort to implement universal clemency.
The California Supreme Court has previously indicated that its review of such clemency requests concerns whether the governor has abused the broad constitutional authority entrusted to the executive branch.
Simon, the Lance Robbins Professor of Criminal Justice at UC Berkeley School of Law, said evidence of corrupt motives would be the central concern in determining whether the governor had exceeded that authority.
But he argued that such concerns are particularly implausible when a governor grants clemency categorically to hundreds of individuals rather than selectively benefiting particular people.
“Given the mass nature I don’t think the corrupt motives concern is plausible so it should be automatic on the courts part,” Simon said.
Simon is among 19 scholars who signed a Nov. 5 amicus letter urging the California Supreme Court to approve Newsom’s request.
The signatories include UC Berkeley School of Law Dean Erwin Chemerinsky, Berkeley law professors Ty Alper and Elisabeth Semel, Stanford law professor Robert Weisberg, Harvard law professor Carol Steiker and Amherst College professor Austin Sarat.
The scholars argue that universal clemency is deeply rooted in American constitutional history and that governors and presidents have repeatedly used executive authority to commute death sentences for entire categories of individuals.
“From the start of our nation to the modern day, the practice of executive grants of universal or mass clemency has been widely applied to those convicted of capital crimes and sentenced to death,” the letter states.
The filing traces that history to George Washington, who pardoned individuals convicted of treason following the Whiskey Rebellion, and documents subsequent uses of broad clemency by presidents and governors.
Among the more recent examples are Illinois Gov. George Ryan, who commuted 167 death sentences in 2003; Oregon Gov. Kate Brown, who commuted 17 death sentences in 2022; and President Joe Biden, who commuted 37 federal death sentences in December 2024.
According to the scholars, California is the only state with a large death row population that has not granted capital clemency during the past half-century.
The letter argues that executive clemency provides a constitutional mechanism for addressing systemic failures in capital punishment without requiring a separate determination about the circumstances of every individual case.
Simon similarly argued that the mass nature of Newsom’s action makes individual judicial review unnecessary.
“Mass clemency has been done many times at different levels of government (federal and state) and to my knowledge has never been held illegal,” Simon said.
He also emphasized the urgency of resolving the matter before Newsom leaves office in January 2027.
“It should be automatic for everyone or the issue will become mooted by the expiration of Newsom’s term,” Simon said.
The court’s consideration of the commutations comes amid continuing disagreement over California’s death penalty, which remains authorized under state law despite the moratorium on executions Newsom imposed in 2019.
California voters rejected ballot measures to repeal capital punishment in 2012 and 2016, although both measures received substantial support.
Simon argued that categorical clemency offers a principled response when a punishment has become discredited by persistent problems but legislative or electoral efforts to eliminate it have failed.
He identified racial discrimination, wrongful convictions and problems with execution methods as fundamental weaknesses in the administration of capital punishment.
“It suggests, although certainly not binding on any other state or this state under a new governor, that when a particular penalty, here the death penalty, becomes so discredited because of a range of repeated problems (in this case, racial discrimination, wrongful conviction, botched execution methods) that it should not longer be carried out,” Simon said.
He continued by arguing that when legislative or voter-approved alternatives are unavailable, “a categorical clemency, applying to all persons under the sentence, is the most principled approach.”
A separate amicus letter filed by the Habeas Corpus Resource Center, the Office of the State Public Defender and the California Appellate Project-San Francisco advances a similar argument.
The agencies maintain that Newsom’s commutations fall within his constitutional authority and would address systemic injustices without compromising public safety because every affected individual would remain incarcerated for life without the possibility of parole.
“The Court need not examine the circumstances of each defendant individually,” the agencies argue, urging the justices to approve the universal clemency request rather than conduct hundreds of separate substantive reviews.
Simon also addressed whether victims, surviving family members or prosecutors have a formal role in the proceedings.
Although Newsom met with some victims before announcing the commutations, Simon said the decision to consult affected families rests with the governor.
“Other than what the governor chooses to do prior to the clemency (and he did meet with some victims), I don’t see any formal role for victims or families, or prosecutors in particular cases,” Simon said.
That position places the constitutional question before the Supreme Court squarely on the governor’s authority rather than the competing views of prosecutors, victims’ families or advocates concerning individual death sentences.
Simon said the governor’s clemency discretion is extraordinarily broad, subject to constitutional limitations.
“The discretion is essentially limitless (as long as we are talking about state crimes within their jurisdiction),” he said.
He also suggested that the requirement for Supreme Court review of clemency involving individuals with multiple felony convictions deserves reconsideration.
“Ideally the legislature will act to revise or eliminate the review requirement which in any event has a bit of the odor of eugenic inspired worries about natural criminals,” Simon said.
The current review requirement is contained in the California Constitution, meaning its elimination would require a constitutional amendment rather than ordinary legislation alone.
Although the court’s decision could establish an important legal precedent, Simon suggested that the precise circumstances of Newsom’s request may be unlikely to recur in California.
“It will establish a precedent, but if it goes through, one that is likely never to come up again,” Simon said.
Nevertheless, he believes the political implications could extend well beyond California.
A successful universal commutation would demonstrate that a governor can use executive clemency to address a dysfunctional death penalty system even when voters have not formally abolished capital punishment.
Simon suggested that the political consequences of Newsom’s action may be as significant as the legal ruling itself, particularly for governors in states with large death row populations and little prospect of carrying out their sentences.
“It will be a political precedent,” Simon said. “Once other governors see that this is not politically catastrophic, other states with large death rows, and little prospect of clearing them, may adopt this approach.”
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