The death penalty remains law in California, but no execution has taken place since 2006, and Governor Gavin Newsom’s 2019 executive order has blocked all executions for as long as it stays in force. Courts continue to impose new death sentences, roughly 600 people remain condemned, and the machinery for carrying out an execution has been dismantled. The system is legally intact and practically frozen.
What the 2019 Moratorium Actually Does
In March 2019, Governor Newsom signed Executive Order N-09-19, granting a reprieve to every person then on death row and halting executions indefinitely.1Governor of California. Governor Gavin Newsom Orders a Halt to the Death Penalty in California A reprieve is a temporary suspension of a sentence. It is not a commutation and not a pardon. Nobody’s conviction changes, nobody’s sentence is reduced, and nobody leaves prison. The state simply cannot carry out an execution while the order stands.
The order went further than pausing executions. It closed the execution chamber at San Quentin State Prison and withdrew California’s lethal injection protocol.1Governor of California. Governor Gavin Newsom Orders a Halt to the Death Penalty in California That matters because even if a future governor revoked the moratorium tomorrow, the state would still need a legally compliant execution protocol, and past attempts to adopt one have failed repeatedly.
Because the moratorium is an executive action rather than a statute, it lasts only as long as the sitting governor chooses to keep it in place. A future governor could lift it without any vote of the legislature. The governor’s constitutional reprieve power was tested in court and survived: a legal challenge, Lacy v. Newsom, was dismissed by the Sacramento Superior Court in August 2021.
Who Can Be Sentenced to Death in California
A first-degree murder conviction by itself does not make someone eligible for the death penalty. The prosecution must also prove at least one “special circumstance” under Penal Code 190.2, which elevates the case to a capital offense where the jury chooses between death and life without the possibility of parole.2California Legislative Information. California Code PEN – 190.1
The list of special circumstances is long, but the categories fall into three practical groups. The first turns on the defendant’s motive or pattern: murder for financial gain, contract killings, murders with multiple victims, and cases where the defendant has a prior murder conviction. The second turns on who the victim was: peace officers, firefighters, prosecutors, judges, and witnesses killed to prevent their testimony all qualify. The third turns on how the killing was carried out or what other crime accompanied it: murder by lying in wait, murder with an explosive device, hate-motivated murder, and killings committed during a robbery, kidnapping, carjacking, or arson.
Felony-murder cases carry an additional federal requirement. The death penalty can only be imposed if the defendant actually killed, attempted to kill, intended a killing to occur, or was a major participant in the felony and acted with reckless indifference to human life.
Federal Constitutional Floors
Regardless of what California law says, the U.S. Constitution puts several categories of people and crimes off-limits:
- Anyone under 18 at the time of the offense cannot be sentenced to death, under Roper v. Simmons (2005) and California Penal Code 190.5.3Justia. Roper v. Simmons, 543 U.S. 551 (2005)4Supreme Court of the United States. California Penal Code Sections 187, 190, 190.1, 190.2, 190.3, 190.4, and 190.5
- People with intellectual disabilities cannot be executed, under Atkins v. Virginia (2002).5Legal Information Institute. Atkins v. Virginia
- A prisoner who cannot comprehend the punishment or the reason for it cannot be executed, under Ford v. Wainwright (1986).6Legal Information Institute. Ford v. Wainwright, 477 U.S. 399
- The crime must have involved a death. In Kennedy v. Louisiana (2008), the Court held the Eighth Amendment forbids the death penalty for crimes that did not result in, and were not intended to result in, the victim’s death.7Legal Information Institute. Kennedy v. Louisiana
How a Death Sentence Gets Handed Down
California uses a bifurcated trial. The first stage decides guilt. If the jury convicts of first-degree murder and finds at least one special circumstance true, the case moves to a separate penalty phase before the same jury.2California Legislative Information. California Code PEN – 190.1 The choice at that point is binary: death, or life without the possibility of parole.
In the penalty phase, both sides present evidence that goes well beyond the facts of the crime. Prosecutors introduce aggravating factors such as the brutality of the offense, a history of violent conduct, or prior felonies. The defense presents mitigating factors: childhood abuse, mental illness, cooperation with authorities, absence of a prior record, or almost anything about the defendant’s background and character.
To return a death verdict, the jury must unanimously agree that the aggravating circumstances outweigh the mitigating ones. A single dissenting juror prevents a death sentence. If the jury deadlocks on the penalty, the court declares a mistrial on sentencing and the penalty phase is retried before a new jury. If a second jury also deadlocks, the court imposes life without parole.
Why the Execution Chamber Was Empty Long Before the Moratorium
California’s last execution was on January 17, 2006, when Clarence Ray Allen was put to death by lethal injection.8California Department of Corrections and Rehabilitation. Inmates Executed 1978 to Present – Capital Punishment Weeks later, a federal court found that California’s lethal injection protocol as actually administered created an undue risk of extreme pain in violation of the Eighth Amendment.9California Department of Corrections and Rehabilitation. Timeline of Lethal Injection Protocol Regulations
More than a decade of failed attempts to adopt a new protocol followed. Proposition 66, approved by voters in 2016, exempted execution procedures from the Administrative Procedure Act to remove one regulatory obstacle. The Department of Corrections submitted new regulations in early 2018. Then the 2019 moratorium withdrew the protocol entirely.9California Department of Corrections and Rehabilitation. Timeline of Lethal Injection Protocol Regulations
Under California law, executions are carried out by lethal injection, with lethal gas available as an alternative if the condemned person elects it or if lethal injection is held invalid. California has not pursued the alternative methods some other states have adopted, such as nitrogen hypoxia or firing squads.
The Appeals Process and How Long It Takes
Every death sentence in California triggers a mandatory automatic appeal to the California Supreme Court, whether the defendant wants one or not.10California Attorney General’s Office. A Victim’s Guide to the Capital Case Process The court can affirm the case, reverse the death sentence while keeping the conviction, or throw out the conviction outright. This step alone routinely takes a decade.
Separately, a condemned person can file a state habeas corpus petition raising issues outside the trial record, such as ineffective assistance of counsel, prosecutorial suppression of evidence, or newly discovered evidence. Proposition 66 moved initial habeas review from the California Supreme Court to the trial court that originally handled the case.11Legislative Analyst’s Office. Proposition 66 Ballot Analysis Appointed counsel must file the petition within one year of appointment, and the trial court must issue an initial ruling within 60 days of receiving it.12California Courts. Proposition 66 Rules Proposition 66 also set a five-year target for completing the entire direct appeal and habeas process, which has proven unrealistic in practice.
After state remedies are exhausted, the condemned person can petition a federal district court under 28 U.S.C. § 2254, arguing that the state proceedings violated the federal Constitution. The petition must be filed within 180 days of the end of state direct review, and federal courts generally consider only claims already raised in state court.13Office of the Law Revision Counsel. 28 USC Ch. 154 – Special Habeas Corpus Procedures in Capital Cases Narrow exceptions exist for new retroactive constitutional rules and evidence that could not have been found earlier despite diligent effort. Statutory deadlines for federal capital habeas (450 days at the district court, 120 days on appeal) are aspirational; missing them is not itself grounds for granting or denying relief.
Start to finish, the appeals cycle in a California capital case can run 25 years or more.
Death Row Today
The condemned population is shrinking. As of early 2025, estimates ranged from roughly 575 to 600, depending on the source and whether recently resentenced individuals awaiting transfer are counted. It is still the largest condemned population in the Western Hemisphere. At least 45 people were resentenced to lesser terms in 2024 alone through successful appeals, plea agreements, and resentencing proceedings. Natural deaths, suicides, and court-ordered reversals continue to reduce the number.
Where those people are housed has also changed. Using authority granted by Proposition 66, the California Department of Corrections and Rehabilitation began phasing out the segregated death row units at San Quentin (now called San Quentin Rehabilitation Center) and the Central California Women’s Facility in early 2024.14California Department of Corrections and Rehabilitation. CDCR Provides Update on Condemned Inmate Transfer Program Under the Condemned Inmate Transfer Program, death-sentenced individuals are moved into general population housing at facilities with at least Level II security and lethal electrified fencing. Participants are held at the highest custody level within general population for at least five years. The 20 condemned women at the Central California Women’s Facility have already been relocated.
Federal Death Penalty Cases Are Not Covered
The state moratorium reaches only state executions. The federal government can pursue capital charges under federal law for crimes committed anywhere, including in California. Federal capital offenses include certain terrorism-related killings, drug-trafficking murders, and killings committed during other federal crimes.
Federal execution policy has shifted with administrations. Attorney General Merrick Garland imposed a federal moratorium in July 2021; the current administration lifted it and directed the Department of Justice to resume seeking death sentences in appropriate cases and to carry out existing sentences.15U.S. Department of Justice. Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions Federal executions are carried out at Terre Haute, Indiana, so California’s state moratorium would not prevent a federally sentenced defendant from being executed.
What the System Costs
Studies have consistently found that California’s capital punishment system costs billions of dollars more than a system where life without parole is the maximum sentence. The extra cost accrues at every stage: longer and more complex trials, mandatory appointment of two defense attorneys in capital cases, decades of appeals at multiple levels, and the higher expense of housing inmates under condemned status. Researchers have estimated that California’s death penalty system has cost taxpayers roughly $4 billion more since 1978 than a comparable system without it, with projections of several billion more through 2050 if the system continues in its current form.