People have gone to their instinctive corners on Gavin Newsom’s death penalty moratorium. The only legal clarification is that Newsom made no changes to the law that prescribes the death penalty. He gave reprieves under Article V, Section 8 of the California Constitution. Most electeds who responded in opposition to his action acknowledged that, but there was other chatter out there yesterday that didn’t make that very important legal distinction. If he wants to change the law, he has to go to the voters.

There are plenty of articles out there to read for a response from various perspectives to Newsom’s action. I’m going to pick and choose.

There is no reason to argue in this space about the propriety of the death penalty, but I am thinking about 2020 implications across the board. Obviously, Gavin won’t be on the ballot next year, but are there down-ballot implications? Obviously, there are 53 congressional, 20 State Senate, and 80 State Assembly seats on the ballot. Could Democrats in moderate districts actually use it to their advantage by opposing the governor? Of course, each district is different.

Gibran Maciel and I are recording a “What a Week” episode of SacTown Talks by The Nooner and that phrase rarely means more. Yes, I had the great John Poulos for crim law, who had worked on such cases, including of people later proven innocent. You won’t convince me and I won’t convince you. But, we can talk about the political implications.

I will opine on one issue. The governor’s authority to grant reprieves and pardons can change with a simple majority of voters and I bet we will see an initiative in circulation shortly. Similarly, a ballot measure to actually repeal the death penalty introduced yesterday can similarly pass with a simple majority after being approved with two-thirds of both houses (a very high bar even with supermajorities of Democrats in both houses). The death penalty was put in the California Constitution by an initiative with a simple majority vote.

To amend the United States Constitution, it requires a two-thirds vote of both houses of the Congress or a Constitutional Convention called by two-thirds of the states. Both require the ratification of three-fourths of the states.

There’s a lot of crap in our state constitution put in by the initiative process. A minimum school funding guarantee, a property tax limitation and, yes, the death penalty. These all should be in statute and we have a referendum process to repeal statutes the Legislature adopts that “the people” don’t want.

Opposing Proposition 17 in 1972 putting the death penalty in the California Constitution was former governor Pat Brown, while then-governor George Deukmejian supporting it. Ironically, also signing the ballot argument in opposition was Bill Cosby. Legislative research definitely finds fascinating nuggets.

In fairness to death penalty proponents, it was put in the constitution because the Supreme Court of California found that the death penalty was contrary to Article I, Section 1, which provides for the inalienable rights of Californians. But, I would proffer that if the state constitution were to be amended, it should have gone through the Legislature. It got a supermajority–67.5% of the vote in November. Here’s a fascinating honors thesis by a Georgetown student on the initiative.

Interestingly, the Supreme Court of California’s ruling in People v. Anderson was before Jerry Brown 1.0 was governor and 6 years before Rose Bird was appointed to the state’s high court.

Will the process to amend the state constitution change? Very unlikely. After all, you can go through the junk in the California Constitution and write in the margins which moneyed interests placed them in there. And, yes, I’ve been part of one of those moneyed interests that tried to amend the constitution with more junk but was defeated by a more moneyed interest.

It’s all in the game, yo’. I’m just saying that the game is as ugly as a 49ers-Raiders game last year.