O’Melveny Worldwide

O’Melveny Prevails for State of California in Pivotal Death Penalty Case

November 4, 2021


O’Melveny Team Represented Governor Newsom and Department of Corrections and Rehabilitation

SAN FRANCISCO—November 4, 2021—An O’Melveny pro bono team, working on behalf of Governor Gavin Newsom and the State of California, won a pivotal victory upholding the State’s moratorium on the death penalty and protecting the due process rights of defendants on death row.

The ruling by Sacramento County Superior Court Judge Shama Mesiwala rejected the claims made by plaintiff James V. Lacy, who argued that Governor Newsom exceeded his constitutional authority and acted illegally by ending capital punishment in California. Lacy further argued that if the Governor exceeds his executive powers, individual citizens have the standing to correct those offenses.

This result ensures that California’s death penalty moratorium will remain in place.

On March 13, 2019, Governor Newsom issued Executive Order N-09-19, which implemented an “executive moratorium on the death penalty . . . in the form of a reprieve for all people sentenced to death in California.” The Governor outlined in the order numerous reasons why he issued the reprieves, including that the death penalty has been “unfairly applied to people of color, people with mental disabilities, and people who cannot afford costly legal representation” and that “innocent people have been sentenced to death in California.”

Additionally, the Governor cited the $5 billion spent on the death penalty system since 1978 to execute just 13 people, and that no person has been executed in California since 2006 because California’s execution protocols were not lawful. In his Executive Order, the Governor additionally ordered the repeal of California’s lethal injection protocol and the closure of the “Death Chamber at San Quentin.”

On January 27, 2021, plaintiff James Lacy sued Governor Newsom and California’s Secretary of Corrections and Rehabilitation, Kathleen Allison, to overturn the Executive Order, alleging a “controversy between [himself and the Governor] as to the scope of Governor Newsom’s right to eliminate the death penalty.” Lacy contended that “Governor Newsom’s Executive Order N-09-19 violates separation of powers,” and sought to vindicate his personal right to resolve this controversy.

Defending the State
O’Melveny was retained by Governor Newsom and Secretary Allison in their official capacities, in order to defend the Governor’s executive authority under the California Constitution to grant reprieves, as exercised through issuance of the March 2019 executive moratorium, and the Secretary’s actions in dismantling the death chamber at San Quentin pursuant to that order. On their behalf, O’Melveny moved for summary judgment on Lacy’s claims, arguing that Lacy, a person with no greater interest in this issue than any other member of the public, could not block Governor Newsom’s exercise of his reprieve power. Sacramento County Superior Court Judge Shama Mesiwala agreed, summarily dismissing Lacy’s claims for lack of both personal and public interest standing in an order dated October 29, 2021, finding “no triable issues of material fact, and that the Defendants are entitled to judgement as a matter of law.”

“The Court’s decision reaffirms the Governor’s broad reprieve power under the California Constitution, a critical finding that upholds the existing executive moratorium on imposition of the death penalty in the State,” said Brett Williamson, lead counsel for Governor Newsom and Secretary Allison and O’Melveny’s firmwide partner in charge of pro bono. “Study after study shows that the death penalty is unjustly and unequally applied to people of color and those in our society without the financial means to afford an attorney with special expertise in capital cases. This is a victory for the principle of equal justice the Governor cited in issuing the moratorium at the outset of his term in office.”

The O’Melveny team was led by Williamson and San Francisco counsel Bill Trac and included partners Meaghan VerGow and Susannah Howard, as well as counsel James Yi Li and associate Lauren Kenney-Hanzich.

About O’Melveny

It’s more than what you do: it’s how you do it. Across sectors and borders, in boardrooms and courtrooms, we measure our success by yours. And in our interactions, we commit to making your O’Melveny experience as satisfying as the outcomes we help you achieve. Our greatest accomplishment is ensuring that you never have to choose between premier lawyering and exceptional service. So, tell us. What do you want to achieve? Visit us at www.omm.com or learn more in our firm at-a-glance, year-end highlights, and on LinkedIn, Twitter, Facebook, Instagram, and YouTube. Visit The Boardroom for our insights on pressing issues facing global corporations.


Christopher Rieck
O’Melveny & Myers LLP
+1 212 326 2218

#  #  #