In a few days, Jerry Brown will end his tenure as Governor of California and cede the gubernatorial seat to Gavin Newsom. Newspapers are already summarizing his career, including a record number of pardons and commutations. Indeed, the Brown administration stands out from previous gubernatorial administrations in the extent to which it intervened in release processes, including, as I write in my forthcoming book Yesterday’s Monsters, considerably more parole grants than Brown’s predecessors.

So one has to wonder: Since Brown is a staunch opponent of the death penalty, why won’t he get rid of it de facto by commuting all death row sentences?

Mass commutations of death row are not new. In 1972, as a consequence of the California Supreme Court’s decision in People v. Anderson, the sentences of all 174 inmates on death row were commuted to life with parole. Among those whose sentences were commuted, as I explain here (and in Yesterday’s Monsters) were Charles Manson and his followers, as well as Sirhan Sirhan. The decision infuriated many in California and led to a backlash legislative workaround (Proposition 17) whose constitutionality was hotly debated in California courts for years.

The difference between then and now was that, in 1972, California law did not include a life without parole option. Moreover, the actual sentences served for homicide offenses were much shorter than they are now. The dramatic gap between the death penalty and a parole hearing after seven years–it was not outlandish at all for a person convicted of murder to be released after ten or fifteen years–infuriated the public.

True, a gubernatorial move here would differ from the post-Anderson situation in that there hasn’t been a court decision forcing the governor into action. But the gap in people’s fates (and the implications to public safety, to the extent that this is even a consideration for aging, sick inmates) would be much smaller than in 1972.

Brown and Kamala Harris, in her prior office as Attorney General, had a chance to bring death penalty abolition a step closer after Jones v. Chappell and chose not to do so, even though all it would require would be doing nothing. But now, doing something is not only possible (free of technicalities) but imperative. Before leaving office, Brown can join a critical mass of abolitionist states by getting rid of death row de facto. He would be handing the Newsom administration a correctional apparatus that is $150 million a year cheaper to administer.

There are still a few days left to do the right thing.

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