California Commission Recommends Abolition of the Death Penalty

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It was unanimous.

“Eliminating the death penalty is a critical step towards creating a fair and equitable justice system for all in California, as the ultimate punishment is plagued by legal, racial, bureaucratic, financial, geographic, and moral problems that have proven intractable,” the California Committee on Revision of the Penal Code said in a report released last month.

The recommendation reverberated through the political, criminal and social justice, and legal communities, which surprised committee chair Michael Romano. He said the committee, which was created in late 2019 by the state legislature to study California’s penal code and recommend reforms, had held two public hearings with expert testimony and public comment, broadcast on YouTube, before releasing it.

“I worried that this was going to be another pebble in the ocean,” Romano says. “The one-page announcement was just recording the unanimous vote and was released as a public notice, which is required. It was not intended to be the big announcement.” That will come later this summer, when the committee will present its full report, with data, charts, legal analysis, and the reasons each member voted for repeal.

“The vote was unanimous, but committee members may have had different rationales for why each voted the way they did,” he says. “Some may think it’s morally abhorrent, some may think it’s unconstitutional, some find it racist, some find it all of the above. All of the reasons will be fleshed out. We all oppose the death penalty but if you drill down, it’s for slightly different reasons.”

The only way to repeal the death penalty in California is by initiative, and the last two ballot measures calling for that, in 2012 and 2016, were defeated by slim margins. So, until another abolition measure is put on the ballot and wins, the committee recommends reducing the number of people on death row by:

  • Granting clemency to commute death sentences;
  • Settling pending legal challenges to capital sentences;
  • Recalling death sentences under the Penal Code;
  • Limiting the felony-murder special circumstances;
  • Restoring judicial discretion to dismiss special circumstances;
  • Amending the Racial Justice Act of 2020 to make it retroactive;
  • Removing people who are permanently mentally incompetent from death row.

Romano is confident that when the full report is released, it will make the case that California’s death penalty should be repealed and, in the interim, the system should be reformed. “There’s still a lot of work that needs to be done to have it formally repealed by the voters and I hope the report moves the needle in that regard. It contains genuinely new information and data on the death penalty in California that will be helpful.”

Much can also be done by the legislature and the attorney general to achieve many of the recommendations, Romano says. The legislature can pass the California Racial Justice Act for All (AB 256), which addresses institutionalized and implicit racial bias in criminal cases. It will make retroactive a similar law adopted in January, and make it possible for those with prior, racially-biased convictions and sentences to appeal. The legislature could also modify the felony-murder special circumstances law, which currently dictates a sentence of life without parole, or death.

And California’s attorney general could adopt the DOJ’s system, where federal prosecutors must obtain approval from the attorney general before charging the death penalty. “To personally approve every case would be a dramatic expansion of the role of the AG,” Romano says.

California Gov. Gavin Newsom imposed a moratorium on the death penalty in 2019, and dismantled the state’s death chamber at San Quentin Prison, putting all executions indefinitely on hold.

“The most dramatic move was the moratorium,” Romano says. “I think the report may be most valuable to support the governor. I hope our report bolsters his position. This is very personal for him. He is deeply committed to ending the death penalty in California. I hope our work supports him in that effort.”

A draft of the full report will be made public before the committee’s next meeting at 1 p.m. on June 23. The committee is urging those interested to virtually attend the meeting and express their views during the public comment period. The final report will be released later this summer.

The Committee on Revision of the Penal Code was created in late 2019 by the state Legislature to study California’s penal code and recommend reforms. Of the seven members, five were appointed by Gov. Gavin Newsom, the other two were each appointed by the legislative body they represent in the Assembly and Senate. 

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