Can governors issue blanket clemency actions, especially when dealing with the worst of the worst offenders in the state? We may soon find out – and perhaps Gavin Newsom hopes to get challenged.

John wrote yesterday about Newsom's commutation of 548 death sentences in California. The timing itself is interesting. Newsom waited until after the midterm election to pursue his supposedly principled course of action, claiming in the eighth year of his governorship that executions violate "our core values ... justice and decency." It apparently took a midterm blue wave for Newsom to discover his own "core values," not to mention what will start immediately after the midterms.

If that seems cynical to you, consider what the New York Times reported that Newsom has already teed up:

Mr. Newsom acted just two months before he will leave office and as he considers a run for president. The act could make him a more compelling candidate to liberal voters in a Democratic primary, but likely would open him to attacks in a general election.

Death penalty opponents have planned a national ad campaign praising him for the move. The minute-long commercial casts the governor’s decision as an act of courage and leadership inspired by the Rev. Dr. Martin Luther King Jr., Dolores Huerta and Robert F. Kennedy. It will air on dozens of news and political shows nationwide, said Dan Newman, a Democratic strategist who advises both Mr. Newsom and the anti-death penalty groups sponsoring the ad. The celebrity Kim Kardashian, who opposes capital punishment, quickly shared the video to her 343 million followers on Instagram.

If Republicans had held serve on Tuesday, would Newsom have acted at all? I wonder. Newsom's "courage and leadership" on this issue suddenly materialized in the 94th month of his term, decades after the inspiring acts of courage that the ad wants to connect to Newsom. If midterm voters had swung to the right or just delivered an extension of the status quo, would Newsom have suddenly discovered these "core values"? Or would he have discovered other "core values" more consonant with those election outcomes?

This was nothing more than a cynical attempt by a politician attempting to get ahead of momentum to call himself a leader. It will probably work, too, at least politically. Newsom can now claim that he actually delivers on the progressive agenda rather than just talk about it like Alexandria Ocasio-Cortez et al.

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That still leaves a question: can Newsom deliver on this? The NY Times also reported that the families of the victims plan a legal challenge to Newsom's commutations:

Mr. Newsom acted after months of lobbying by death penalty opponents and counter arguments from prosecutors and victim advocates. Those against Mr. Newsom’s move are expected to file a challenge arguing that he violated the law with a blanket commutation and that each case must be considered on individual merits.

They recently sent Mr. Newsom a seven-page letter, written by Anne Marie Schubert, a former Sacramento district attorney, that included photos of people killed by prisoners now on death row and detailed descriptions of their crimes. The cases included an 8-year-old boy who was severely abused for months before he died from torture in 2013 and another 8-year-old who disappeared while walking home from school in 1996.

Here are a few more of the people that will experience the "justice and decency" of Newsom's order:

3. Marcus Wesson 

Brutally murdered 9 family members, his children & nieces

4. Cary Stayner

Brutally murdered 4 women, including three sightseers near Yosemite, and beheaded a nature guide

5. Richard Allen Davis.

Brutally murdered 12-year-old Polly Klaas after kidnapping her from a sleepover

6. Chester Turner

Brutally murdered 10 women in LA

There are still 542 more

A friend of mine served on the jury for the Charles Ng case. It horrified and traumatized her, as Ng made videos of the torture and murders that took place. Ng, one may recall, fled to Canada and created tensions between Ottawa and California (and DC) while the Canadians attempted to force California to take the death penalty off the table in exchange for extradition. The conflict prompted then-Governor George Deukmejian to warn Canada that it risked turning itself into a haven for murderers:

Authorities have warned that if the Canadian high court bars Ng’s return to California, it could be creating a legal shelter in Canada for murderers attempting to avoid execution in the United States.

The slow pace of the Ng case--along with the pending extradition of another California fugitive in a separate case--prompted former Gov. George Deukmejian to write a letter to Canadian Prime Minister Brian Mulroney in 1989. If Canada refuses to comply with extradition requests, Deukmejian wrote, “The specter of Canada becoming a haven for death-penalty fugitives may soon be realized.”

The families of Ng's victims and the state of California put considerable effort, money, and time into forcing Ng to face justice as crafted at the time of his crimes. Newsom just tossed all of that away to boost his political fortunes. And we can multiply that across the other 547 cases as well. 

Will a legal challenge force Newsom to reinstate the original sentences? Joe Biden gave a blanket commutation for nearly everyone on federal death row, with the exception of three men, also a political stunt in the final days of the Biden Regency. However, there are no restrictions on presidential clemency. Some states do restrict clemency power by governors, although California does not. They do have a Board of Parole Hearings that can recommend clemency actions, but the BPH makes it very clear that the governor can act directly if he so chooses. 

The challenge may rest on whether that plenary authority can be exercised on a class rather than limited to individuals. Perhaps that might present a problem for Newsom, but the remedy to that would be pretty obvious: he would just issue 548 individual commutations rather than one blanket order. That would be tedious, and it would also force Newsom to name people like Ng, Kraft, Davis, and others in his orders, which would become material for attack ads in the 2028 cycle. I'd be surprised if Newsom hasn't already prepared to do that.

All of this misses the point, though. If Newsom really acted on this based on principle, why not go to the state legislature and have them prohibit executions by changing the law? Democrats have supermajorities in the state legislature and should be able to pass this easily. That would have had the same effect, but would have allowed for public debate and legislative input. Newsom had eight years to act on his "core values," and yet chose to wait until the penultimate month of his second term to issue a proclamation instead. That tells us everything we need to know about Newsom's core value ... which is Newsom himself. So much for muh democracy, eh?