Newsom may have halted executions, but the machine keeps on ticking

Gov. Gavin Newsom made history by declaring a moratorium on executions in California and even tweeting out images of the execution chamber being dismantled. Although I was in Sacramento, I missed the announcement. I was in court on one of my death penalty cases.

The governor closed the execution chamber, but the machinery cranks on. Prosecutors across the state have already announced that they will continue to seek death sentences, and 737 people are still facing execution. Because executive clemency is limited, it will take other actors in our criminal justice system to bring an end to California's death penalty.

Attorney General Xavier Becerra is uniquely positioned to help bring it to a halt. He has called Newsom's reprieve "a bold, new direction in California's march toward perfecting our search for justice." I agree.

But Becerra's statement is remarkable because there is so much that more he could do, large and small, to support that effort beyond defending the governor's decree. Taking up any one of them would be a much better use of state resources than defending hundreds of death sentences that will almost certainly never be carried out.

In the death penalty cases Becerra is currently defending, he could admit in court what Newsom acknowledged in his executive order: California "death sentences are unevenly and unfairly applied to people of color." Supporters and opponents of the death penalty agree that the most obvious impact of race on death sentencing is the race of the victim. This effect is greatest when the defendant is black, and where a crime is committed is a much better predictor of a death sentence than the culpability of the perpetrator. Tragically, we as a state have failed to divorce our country's racist history from our harshest penalties in the present. Admitting as much would clear the way for the courts to hold that California's death penalty is inconsistent with our state's constitutional commitments to equal protection under the law.

Becerra could also confess other defects, any one of which would acknowledge the unconstitutionality of California's death penalty regime. For example, by design, California's death sentencing statute reaches virtually every murder, as studies by preeminent experts have confirmed.

That's a problem because, as the U.S. Supreme Court has repeatedly put it, "To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others guilty of murder." Just last year four members the U.S. Supreme Court -- the number required to accept review -- explained they would be inclined to declare unconstitutional a sentencing statute that fails to narrow, should a defendant present evidence that had been "examined by experts and the courts below." California's statute has been subjected to such scrutiny and Becerra would be justified in conceding that California's death sentencing regime does not pass "constitutional muster."

He could admit to other systemic problems, such as the inherent cruelty of languishing under a sentence of death for decades, the lack of required jury findings for aggravating circumstances, and arbitrariness in the process by which a person becomes eligible for execution. Any one of these admissions would be well supported and, if also endorsed by the courts, would bring California's experiment with the death penalty to an end.

He could also take a more case-by-case approach. The commentary in opposition to Newsom's moratorium has suggested that California is special, that whatever problems may be present with the death penalty in other states, just don't affect us. That's a lie.

Examples of troubling cases abound. In one case, a witness called the defendant the n-word. In a series of cases, prosecutors have asked black jurors their views on the O.J. case as pretext for eliminating them from the jury pool. There are literally dozens of cases the California Supreme Court has found it probable that the defendant is intellectually disabled, making them ineligible for the death penalty.

In many others, the evidence linking the defendant to the crime lacks the strong forensic basis we would expect of a 21st century criminal justice system, leaving lingering doubts about the true perpetrator, including in the high profile case of Kevin Cooper, who has recently been granted DNA testing only after decades of litigation. Cooper hopes to join the five others from California's death row who have been released in light of claims of innocence.

Even taking the modest steps of not appealing a grant of relief from a death sentence, waiving procedural defenses to claims challenging the legality of a sentence, or asking for an evidentiary hearing in cases where there are troubling claims about sentences of death would each be a leap towards ensuring that justice is done where the stakes are highest.

So far, Becerra has not taken that tack. He has, instead, consistently opposed relief, invoked procedural barriers to reviewing the merits of constitutional claims, and failed to take steps that would expedite, rather than block the delivery of justice.

There are many other actors who could do many other things to mitigate the excesses and arbitrariness inherent to the use of the death penalty. But the reforms proposed here could be accomplished with little or no cost and would demonstrate an executive branch unified in its determination to put justice first. It is time for a bold new direction from the attorney general.