“Did you ever have to make up your mind to pick up on one and leave the other behind?” So starts a very popular 1960s rock and roll song.

As the California gubernatorial primary comes to a close, the leading Democratic candidate’s position on the death penalty remains unclear. Xavier Becerra owes the residents of the Golden State — and the rest of the nation — an explanation of what he will do on that issue if he is elected.

Should he become governor, Becerra will have enormous discretion in determining the future direction of the state when it comes to the death penalty, as well as the fate of those under a sentence of death. He will have to decide whether to continue the execution moratorium imposed by current Gov. Gavin Newsom (D) and whether to grant clemency to anyone who is convicted of committing a capital crime.

After Gov. Jerry Brown nominated Becerra to serve as the state’s top law enforcement officer, Becerra said, “I support the death penalty, but I hate the way it’s being executed.” As attorney general, he put aside his qualms and moved forward with existing capital prosecutions, initiated new prosecutions, and defended cases on appeal, sometimes with unusual vigor.

For example, in 2017, Becerra sought a death sentence in the case of a man who killed eight people at a beauty salon. In another case, he pushed forward with the prosecution of Robert Lewis, even though Lewis was intellectually disabled. The Intercept reported that Becerra went along with a plan “to ask the courts to artificially inflate Lewis’s IQ so the state could execute him.” The California Supreme Court saw through the ruse and overturned Lewis’s death sentence after finding “substantial evidence” that he was intellectually disabled,

In 2019, Becerra called Newsom’s decision to halt all executions “a bold, new direction in California’s march toward perfecting our search for justice.” But two years later, the governor and the attorney general were on different sides in a crucial death penalty case.

They butted heads when the California Supreme Court took up the question of whether, during the sentencing phase of a capital trial, juries had to be unanimous and whether they had to employ the “beyond a reasonable doubt” standard in deciding whether to impose a death sentence. The attorney general’s office under Becerra’s leadership argued against both the heightened burden of proof and the jury unanimity standard.

The court noted the attorney general’s contention that the “implementation of the reasonable doubt standard and jury unanimity with regard to the ultimate penalty verdict would be unworkable.” That sparked an unusual public rebuke from Newsom, who filed a brief, calling the unanimity and a high burden of proof essential guardrails, given the numerous systemic problems in the state’s death penalty system. But Becerra’s position carried the day.

Moreover, when he was attorney general, Becerra did little to address the substantial problems that plague California’s death penalty system, such as racial discrimination, the impact of geography, and the risk of false convictions. And, seven years ago, he ducked the question of whether he still supported capital punishment. The Los Angeles Times paraphrased him saying only that it “was his duty to enforce the laws in California, the death penalty among them.”

The “just doing my job” excuse is a familiar dodge politicians use to obscure their positions on controversial issues. It is hardly reassuring to opponents of the death penalty in a state that has the largest number of people of any state serving death sentences.

In addition, it underestimates the discretion any prosecutor, including the attorney general, has in deciding whether to bring capital cases or defend them when a capital defendant challenges a sentence or conviction.

Further muddying waters, Becerra told the Times, “I have real reservations about the death penalty. I think there is ample proof that it has not worked the way we would want when it comes to undertaking the most severe form of punishment that’s not reversible.”

He revealed that in 2016 he “voted in favor of Proposition 62 … which would have abolished the death penalty in the state.” But Proposition 62 was defeated, and capital punishment remains an important issue in California.

So now what?

Although California hasn’t executed anyone in more than a decade, capital punishment is still legal there. It is what I call a “death penalty swing state.” Like swing states in presidential elections, what happens in death penalty swing states will have a nationwide impact on the death penalty debate in this country.

It is time for Becerra to make up his mind.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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