A Coming Executive Branch Civil War Over the Death Penalty?

Conflict over the death penalty has driven California politics and law
since the 1976 reinstatement of capital punishment by the United States Supreme
Court in Gregg
v. Georgia
, and reached a peak moment with the 1986 ouster of Chief
Justice Rose Bird and two associate justices of the California Supreme Court. In
the last decade or so, it appeared that the conflict between pro- and anti-death
penalty advocates had settled into a de facto detente. For the pro-death
penalty faction, the death penalty remained on the books, with a declining
number of death penalty prosecutions emerging from a small number of mostly southern
California counties, particularly Los Angeles and Riverside. For the anti-death
penalty faction, no one had actually been executed since Stanley Tookie
Williams in 2005, who was only the 13th person to be executed in California
since the reinstatement of capital punishment in 1976. As a point of
comparison, Texas has executed 560 people in the same time period.

Two ballot initiative attempts at abolishing the death penalty narrowly
failed in 2012 and 2016, with a competing ballot initiative to speed-up the
death penalty (Proposition 66) narrowly passing in 2016. Yet the effect of
Proposition 66 has hardly been felt and the death penalty remained mostly off
the political radar of the average voter. All this changed on March 13 of this
year when Governor Gavin Newsom signed an executive order suspending all
executions in California. Overnight, long-simmering political conflicts
re-emerged in California along with new forms of political conflict, which this
article will examine.

The Moral Duty of Legislators

In explaining his reasons for imposing his moratorium on executions,
Governor Newsom presented several public policy reasons — that it would save
the state money, that it was within his discretionary power over executions,
and that it represented the will of the voters. David Carrillo and I have
elsewhere written about those policy justifications.[1]
But Governor Newsom did not shy away from also discussing his decision in
personal terms. What apparently precipitated the Governor’s decision was that
several death penalty cases had finally made their way through the federal
courts and the Governor was facing the prospect of signing their death warrants
and presiding over their executions. This, the Governor stated, was simply
something he could not do, on a personal moral basis.[2]

The conflict between following the public law versus following one’s
private moral law is, of course, as old as the law itself. In recent memory,
Governors Schwarzenegger and Brown (and Attorneys General Brown and Harris)
declined to defend in federal court the constitutionality of California’s
anti-same-sex marriage statute created by Proposition 8.

But previously there was a sense of the singular and exceptional nature
of such a stance. This was not something you did every day — it was a
once–in-a-political-career moment. The political rhetoric now seems to suggest
otherwise. Consider, for example, the situation that California Senator Kamala
Harris finds herself in now that she is running for President. She has been
criticized by some progressive Democrats for positions she took on the death
penalty when she was California’s Attorney General. Critics note that in July
2014 then-AG Harris appealed a federal judge’s decision that California’s death
penalty was unconstitutional, and succeeded in overturning that ruling. The
idea that she was doing her job as Attorney General in defending the death
penalty as one of the laws of California is simply not part of the political

That it is the job of the California Attorney General to defend the
validity of the laws of the state used to be an uncontroversial proposition. No
longer. The shoe now appears to be on the other foot, and Senator Harris finds
herself in the position of explaining why she decided not to let her personal moral opposition to the death penalty
override her ostensible legal duty to defend the validity of California’s death
penalty law. Previously, it was defense attorneys who faced criticism — how can
you defend such horrible criminals? Now it is the former prosecutor who faces
the analogous criticism — how could you defend such a horrible law? The answer
to both questions is that our adversarial political and legal systems do not
work unless someone defends the horrible criminals or the horrible laws. At
least that is the answer of a traditional liberal proceduralist. But
traditional liberal proceduralism is now out of favor in the increasingly
polarized climate of moral certainty that has taken hold of both sides of the political
spectrum. The Governor’s openness in foregrounding the role of his private
morality in making a political decision represents the culmination of this
national political trend.

A New Civil War of the Executive

What happens when members of the executive branch cease to do their
assigned role of defending the law? It causes procedural shocks to the system. When
Attorney General and then-Governor Brown declined to defend the anti-same-sex
marriage statute created by the ballot initiative Proposition 8 in federal
court, it generated a legal controversy concerning who could defend Proposition
8. In Perry
v. Brown
(2011), the California Supreme Court held that the ballot
proponents had standing to defend Proposition 8 under the California constitution.
But the United States Supreme Court subsequently decided in Hollingsworth
v. Perry (2013)
that the
proponents of Proposition 8 lacked standing under the federal constitution to
do so.

California faces an even more complicated situation concerning the
death penalty because, instead of a conflict between the executive branch and the
proponents of a ballot initiative, we are facing a conflict within the California
executive branch itself — between the Governor as the head of the entire
executive branch, and the Attorney General (himself an elected state
constitutional officer) as the head of law enforcement in the state, and local

After the initial excitement of the Governor’s executive order staying
any executions died down, it became clear that although no executions would
proceed, every other aspect of the death penalty system remained as it was
before and would proceed as usual. About a week after issuing his executive
order, Governor Newsom said that he was considering a plan to prohibit any new
death sentences in local criminal cases and to “shut down” the “system of death.”[4]
As one newspaper report put it, while it was not entirely clear how Newsom
would carry out such an order, he could either have Attorney General Becerra
direct local district attorneys not to seek the death penalty or order him to
not defend appeals.[5]

Some local prosecutors have stated that they retain the autonomy to
charge capital murder, despite the Governor’s statements.[6]
And indeed, on April 11, prosecutors from Sacramento, Santa Barbara, Orange,
and Ventura Counties announced in court their intent to charge the Golden State
Murderer with capital murder.[7]

The Governor also appears to not have yet ordered the Attorney General
to not defend death penalty appeals, as is reflected in People
v. Potts (2019)
(S072161), the
first opinion on a death penalty case to be issued by the California Supreme
Court since the Governor’s executive order staying executions. Justice Liu wrote
a concurrence, which begins with the following:

Today’s decision is our first to affirm a death judgment since Governor Newsom signed Executive Order N-09-19 effecting a moratorium on capital punishment in California. Neither defendant nor the Attorney General has suggested that the Executive Order raises any new issues bearing on this appeal. We thus decide this case on the claims and arguments as submitted.[8]

Arguably the Governor could have instructed the Attorney General to
inform the court in Potts
that he was withdrawing support from defending the death sentence, including previous
arguments supporting the penalty phase of Potts’s trial. But such a gesture
would have had little practical effect. The court would have still retained its
independent duty to scrutinize the case, and because the court had already read
the Attorney General’s brief, it would have been impossible to unring the bell,
so to speak. Still, the Governor could have made a symbolic gesture, assuming
the Attorney General agreed, and assuming he did not want to provoke a
constitutional battle by just ordering the Attorney General to do so. A second
California Supreme Court capital sentence affirmance has recently issued, with
no sign that the Attorney General has changed his traditional practice of
defending such judgments.[9]

A Unitary or Dis-Unified
California Executive Branch?

David Carrillo recently
a strong case that California constitutional text and court
precedents would favor the Governor if he sought to issue an executive order to
the Attorney General to both cease defending capital cases and to order local
prosecutors in turn to cease bringing new capital murder indictments.[10]
Dr. Carrillo’s account depicts the California state executive branch as similar
to the federal executive branch, in which a unitary executive branch is
presided over by an all-powerful President.

But as Professor Vikram Amar has discussed, models of state executive branch structure are
more varied, with some states giving considerable autonomy to their Attorney
General in relationship to the Governor.[11]
A basic structural difference between the federal and California state
executive branches is that the Governor cannot simply fire those elected
executive officials who fail to carry out his orders and replace them with
someone who can, as the President is generally free to do with his executive
branch appointees. Rather, the Governor must engage in a court battle, with all
its attendant delays and uncertainties.

As Professor Amar discusses, recent history in California has shown
executive branch officials at various levels defying the will of the Governor —
a city mayor, a state Controller, and the state Attorney General — resulting in
protracted litigation and several California Supreme Court decisions.[12]
Dr. Carrillo is correct in noting that in all these cases, the executive branch
official higher on the ladder ultimately prevailed. But Professor Amar has put
his finger on a significant feature of the California executive branch distinguishing
it from the federal one: namely, that state elected officials have deemed it
well within their rights to assert their independent authority against the

The Attorney General, of all the state elected officials, has the
greatest claim to some reserves of autonomy against the Governor. People
ex rel. Deukmejian v. Brown
, the 1981 case in which Attorney General
George Deukmejian lost to Governor Jerry Brown, is often cited as recent
precedent for the Governor’s supreme authority over the Attorney General.[13]
But a detailed examination of the case presents a more nuanced model of the
power relationship between the offices of the Governor and the Attorney General.

The background of the case is a political clash between then-Governor
Jerry Brown and then-Attorney General George Deukmejian. In 1977, during Jerry
Brown’s first term as governor, the legislature adopted the State
Employer-Employee Relations Act (“SEERA”), a collective bargaining statute for
state civil service employees as to wages, hours, and other terms and
conditions of employment.[14]
The Pacific Legal Foundation filed suit against the Governor, the Controller,
the Public Employment Relations Board, and the State Personnel Board, contending
that SEERA infringed on the State Personnel Board’s constitutional authority to
set state worker salaries under the civil service system.[15]
The Attorney Generally initially met with the members of the State Personnel
Board in his capacity as attorney for the Governor and the State Personnel
Board, outlining the legal posture of the Board and available legal options.[16]
Yet a week later, the Attorney General filed an independent petition for writ
of mandate in the Court of Appeal against
the Governor and other state agencies, asking for relief comparable to that
sought by the Pacific Legal Foundation.[17]

The Governor moved to dismiss the Attorney General’s petition for writ
of mandate, and the California Supreme Court ruled for the Governor in People
ex rel. Deukmejian v. Brown

There are two bases for the court’s ruling for the Governor in People
ex rel. Deukmejian v. Brown
. The first is a narrower one based on the principles
that govern attorney/client representation for any attorney, including the Attorney
General in his role as an attorney for a state agency. As the court framed the
issue: “The issue then becomes whether the Attorney General may represent
clients one day, give them legal advice with regard to pending litigation,
withdraw, and then sue the same clients the next day on a purported cause of
action arising out of the identical controversy.” As to that, the court
concluded that it could find “no constitutional, statutory, or ethical
authority for such conduct by the Attorney General.”[18]

But the court also made more sweeping statements about the
constitutional relationship between the Governor and the Attorney General. The
Attorney General argued that he had a common law right to sue the Governor and
other public officials and agencies, in his role as “the People’s legal counsel.”
In response, the court characterized this as presupposing that the Attorney
General could determine the public interest, contrary to the views of the

The court rejected this claim, pointing to California constitution Article
V, section 1 (“The supreme executive power of this State is vested in the
Governor. The Governor shall see that the law is faithfully executed.”) and
Article V, section 13 (defining the Attorney General’s powers as “Subject to
the powers and duties of the Governor, the Attorney General shall be the chief
law officer of the State.”). The court concluded: “The constitutional pattern
is crystal clear: if a conflict between the Governor and the Attorney General
develops over the faithful execution of the laws of this state, the Governor
retains the ‘supreme executive power’ to determine the public interest; the
Attorney General may act only ‘subject to the powers’ of the Governor.”[20]

There’s much for a Governor to like about the language of People
ex rel. Deukmejian v. Brown
in terms of his constitutional authority
over the Attorney General. But the decision does not give the Governor clear
carte blanche authority to control the Attorney General. To begin with, the
ruling of the case can be entirely explained in terms of the general attorney–client
law grounds the court presents in the first part of the majority opinion. Many
of the more sweeping statements about the Governor’s control over the Attorney
General in the case are dicta.

More importantly, if the current Governor sought to instruct the
Attorney General to (against his will) stop defending all death penalty
judgments, the circumstances surrounding the constitutional issues presented
would be significantly different from those litigated in People
ex rel. Deukmejian v. Brown

ex rel. Deukmejian v. Brown
states that if a conflict between the
Governor and the Attorney General develops “over the faithful execution of the
laws of this state,” the Governor retains the supreme executive power to
determine the public interest. But in the current controversy, what the
Governor appears to be proposing is not a certain kind of execution of the
existing death penalty laws, but no implementation of them at all. The Governor
does independently possess the clemency power to delay executions. But it is a
different constitutional question whether his apparent intent to entirely
decline to implement the death penalty laws can be considered “a faithful
execution of the laws” such that the Governor can claim the supreme executive
power described in People
ex rel. Deukmejian v. Brown.
 This is the constitutional paradox at the
heart of the Governor’s position.

Furthermore, People
ex rel. Deukmejian v. Brown
left the Attorney General some autonomy
from the Governor, albeit in a passive rather than an active form. The Attorney
General contended that he was not bound by the rules that control the conduct of
other attorneys in the state because he had a special status as a protector of
the public interest. The Attorney General pointed to the California Supreme
Court’s acknowledgment of “the Attorney General’s dual role as representative
of a state agency and guardian of the public interest” as support.[21]
The People
ex rel. Deukmejian v. Brown
majority rejected this argument, noting that
the Attorney General was bound by the general rules of professional conduct
preventing an attorney from assuming a position adverse to his former client. But
the court granted that the Attorney General could withdraw from his
representation of his statutory clients and permit them to engage private
counsel, citing Government Code section 11040. The court thus concluded that “the
Attorney General cannot be compelled to represent state officers or agencies if
he believes them to be acting contrary to law, and he may withdraw from his statutorily
imposed duty to act as their counsel, but he may not take a position adverse to
those same clients.”[22]

This decision can be seen a supporting the proposition that while the
Attorney General may not actively sue (as AG Deukmejian did) or “take a position
adverse” to the Governor, the Attorney General retains the general power to
decline to assert a position desired by the Governor or other executive branch
clients. He can also bow out of a case entirely, leaving it to the Governor’s
office or other executive agency to litigate on its own.[23]

It is uncertain how this “passive” autonomy to decline representation
might relate to the circumstances of a Governor ordering an Attorney General to
decline to defend death penalty judgments or — even further — to a Governor
ordering an Attorney General (against his will) to instruct local prosecutors
to not bring death prosecutions. But a plausible argument could be made that
the Attorney General could decline to assert a position taken by the Governor against
implementing the death penalty laws. The Attorney General could decline to halt
(i.e., continue) his apparent legal duty to defend death penalty judgments, so
long as the Attorney General did not actively act adversely to the Governor’s
position — for example, by suing the Governor to revive the death penalty,
which would be the act most clearly precluded by People
ex rel. Deukmejian v. Brown

Given the uncertainty of a stark constitutional showdown between the
Governor and the Attorney General over implementing the ostensibly-constitutionally-valid
death penalty laws, it is not surprising that the Governor is going slow for
the moment.


David Aram Kaiser, a senior research fellow with the California
Constitution Center, is of counsel to Moskovitz Appellate Team and has been an
adjunct professor at Hastings College of the Law and Golden Gate University Law
School. He was a judicial staff attorney at the California Supreme Court for 11
years, but the views expressed here are solely those of the author. This
article does not purport to reflect the views of the California Supreme Court
or any of its justices and is based entirely on information available to the

[1] David
A. Carrillo & David A. Kaiser, Problems
With Newsom’s Moratorium
, Daily Journal (Mar. 15, 2019).

[2] In
Exclusive Interview, Governor Newsom Says He’s Not Finished Trying To Abolished
The Death Penalty
, KCBS Radio (Mar. 14, 2019).

[3] See
e.g., Nicole Allen, The
Unknowable Kamala Harris
, The California Sunday Magazine, June 2, 2019, at
p. 25. In discussing Harris’ decision to pursue an appeal of the federal
judge’s ruling that the death penalty was unconstitutional, this article
implies that Harris’ decision involved the same level of discretion that a
prosecutor has in choosing how to charge a crime. The article compares Harris’
prior decision as San Francisco District Attorney  to not seek the death penalty against
cop-killer David Hill. But these two types of decisions are worlds apart. A
prosecutor’s discretion concerning how to charge a crime has traditionally been
recognized a part of the day-to-day decision-making of that office. An Attorney
General’s decision to not defend a law of the state is an extraordinary act.

[4] Willon
& McGreevy, Gov.
Newsom May Prohibit New Death Sentences, Setting Up Possible Conflict with
, L.A. Times (Mar. 21, 2019).

[5] Id.

[6] Id.

[7] California
Prosecutors to Seek Death Penalty in ‘Golden State Killer’ Case
, NBC News (Apr. 10, 2019).

[8] Potts
(conc. opn. of Lui, J.).

[9] People
v. Sanchez (2019)

[10] Carrillo, A
Governor Probably Can Stop Capital
Cases by Executive Order
SCOCABlog June 4, 2019.

See Vikram David Amar, Lessons From
California’s Recent Experience With Its Non-Unitary (Divided) Executive: Of
Mayors, Governors, Controllers, And Attorneys General
, 59 Emory L.J. 469

[12] Specifically
San Francisco Mayor Gavin Newsom opposing Attorney General Lockyer in Lockyer
v. City and County of San Francisco (2004)
State Controller John Chiang opposing Governor Brown in Brown
v. Chiang (2011)
; and Attorney
General Deukmejian opposing Governor Brown in People
ex rel. Deukmejian v. Brown (1981)

[13] (1981)
29 Cal.3d 150.

[14] Id. at 154, 160.

[15] Id. at 154, 160–61.

[16] Id. at 154.

[17] Ibid.

[18] Id. at 155.

[19] Id. at 157.

[20] Id. at 157–58.

[21] Id. at 157 (citing
D’Amico v. Bd. of Medical Examiners
at 15).

[22] Ibid.

See Amar, supra note 11, at p. 487.