Death Row Is Empty. The Death Penalty Isn't.

A state can end the death penalty without calling it that: just stop being able to carry it out.

"These offenders will die in prison, but not by our hand."

— Gov. Gavin Newsom, open letter to California, November 5

On Thursday, in the first week of the post-midterm hangover, California Gov. Gavin Newsom did something no American governor has done before. In an open letter addressed to "all Californians," he announced that he will commute the death sentences of all 548 prisoners on the state's death row to life without parole. By the count of the Death Penalty Information Center, it is the largest single act of mass clemency in U.S. history.

The number needs a second look. California holds more than a quarter of every person on a death row in America. Newsom did not pick the sympathetic cases, the long appeals, the ones with credible claims of innocence. He took the whole row, notorious and obscure alike, in a single motion.

Death row had already been a metaphor since 2024, when the state moved the condemned out of their individual cells and scattered them across 24 prisons. Newsom made the metaphor arithmetic: 548 sentences, one letter, zero executions left on the books.

The most important fact about the commutation is what it does not do: it does not abolish the death penalty. California's capital statute stays on the books. A jury can still sentence someone to death tomorrow, and the state's decades-long appellate machinery can keep that person on paper's death row for as long as it takes. Newsom fixed the past. He left the machine intact.

He also closed the obvious loophole. The commuted prisoners, he wrote, will not be eligible for the state's new parole-board commutation and resentencing programs, the ones that could theoretically shrink some life sentences into early release. They will die in prison. They just will not die by the state's hand.

The hardest question in the letter was who to include, and his answer is the most interesting part. Some argued clemency should be withheld from people who committed the "worst of the worst" crimes. He considered "different categories of capital crimes and offender characteristics." Then he declined to rank them: "I have concluded that attempting to distinguish among crimes and offenders for clemency would inadvertently create two classes of murder victims."

Translation: the only consistent way to stop killing is to stop keeping score.

The commutations are not all settled law. Under California law, a governor's commutation of someone with multiple felony convictions requires the state Supreme Court's signoff, and nearly 400 of the 548 fall into that category. Four of the court's seven justices must approve. The largest mass clemency in American history may therefore end up decided by the same court that reviews capital appeals, one signature at a time.

The challenge is already announced. Anne Marie Schubert, chief executive of the Criminal Justice Legal Foundation and a former prosecutor, said her group will contest the commutations and made the victims' case bluntly. "I find it atrocious and disrespectful and the most grotesque violation of victims' rights I've ever seen," she said. "There's 548 people on death row. That's no less than 548 families that have been destroyed."

Topo Padilla, president of Crime Victims United, framed it differently: "I don't think he or any person should undo the sentence rendered by a jury and signed off by a judge because of his personal beliefs or feelings." That last phrase is the entire conservative case against this, and it also misses the point. Newsom is not releasing the prisoners. He is declining to execute them. The jury's sentence is still being served. It is just being served in a different form.

To grasp the size of it, you have to remember what California's death penalty has been for two decades: a threat that stopped working. The state's last execution was Clarence Ray Allen in 2006, the final death by gas chamber in a room built decades before. Tookie Williams died there in 2005. Arnold Schwarzenegger was governor at the end of that era, and the machinery simply sat idle ever since.

When Newsom took office in 2019, he declared a moratorium and dismantled the execution chamber at San Quentin. In 2024 the state finished the fiction, spreading the condemned out of their cells entirely. For more than a year, California's death row was a concept, not a place. A person could be sentenced to die and, months later, be housed in general population like anyone else.

Meanwhile the rest of the country kept executing. A botched execution in Tennessee in recent months, and the Trump administration's suggestion of televised executions, threw capital punishment back into the national argument. And just before, in 2024, President Joe Biden commuted 37 of the 40 prisoners on the federal death row. By the time Newsom acted, the pen had already been moving. Yasmin Cader, deputy executive director at the ACLU, called the move "a historic step toward ending the death penalty across the United States." Nadia Daar of Amnesty International USA added, "The world is watching."

America's last great experiment in state killing has shrunk to a pilot program run by a handful of states. California just stepped out of it.

Victims' families are split, and the split is the real story. Marc Klaas, whose 12-year-old daughter Polly was kidnapped and killed by Richard Allen Davis in 1993, said the commutation "upsets me terribly." He had made his peace with the idea that Davis would die on death row. "It's so discouraging," he said. "It makes me feel terrible and it regurgitates all my personal feelings." Davis is among the prisoners whose case goes to the Supreme Court for signoff.

Polly's sister, Jess Nichol, tells the other half of the story. She spent years believing Davis deserved to die, then changed her mind. "The system tells survivors that execution matters to our healing. It doesn't. It's a distraction from what we actually need."

Newsom says he learned the same lesson from the victims' families he met over the years: each one experiences its loss as the worst of the worst. The research points in the same direction. A University of Miami study of California death sentences from 1987 to 2019 found the person most likely to receive a death sentence is a Black or Latino person who kills a white person, with the penalty landing hardest in hotspot counties like Riverside.

The death penalty was never a punishment so much as a lottery weighted by the race of the victim and the zip code of the crime. In a 2024 amicus brief supporting the state public defender's effort to stop pursuing the death penalty, Newsom wrote it plainly. "California is not immune from the invidious influence of racial bias in its application of the death penalty," he said. "The nation's capital punishment system is inextricably linked to the legacy of slavery and racial terror."

The timing is impossible to ignore. The letter arrived three days after the midterms, with Newsom's term ending in January and the question of a 2028 presidential run still open. A week earlier, anti-death-penalty groups had released a television ad invoking Martin Luther King Jr. to praise the move, an ad his own advisor Dan Newman says the governor did not know about, made without his political team. That detail matters. It suggests the decision was not made to be seen, even though now it will be.

His successor, Gov.-elect Xavier Becerra, has pledged to extend the moratorium. Becerra spent years as attorney general defending capital convictions and pursuing new death sentences. The consensus in Sacramento moved faster than the statute. Natasha Minsker, a former director of the ACLU of California, said she is "shocked" when legislators tell her they do not believe the state still has the death penalty. It still has it. It simply stopped using it.

So the death penalty survives in California as a sentence the state can still hand down and a machine it will not run. The condemned are still sentenced to die. They will simply die in their cells, in their own time, the way the state now prefers its killing: quietly, and off camera.

Five hundred and forty-eight people are about to outlive the punishment written for them. The question is no longer whether California will execute. It is whether a state that has already decided not to will keep pretending the opposite is still possible.