Xavier Becerra Pushed to Inflate a Black Man’s IQ to Execute Him as California AG

When leading California gubernatorial candidate Xavier Becerra was state attorney general, his office pushed the state Supreme Court to artificially inflate a Black man’s IQ in order to execute him. 

Following the lead of his predecessor, former California Attorney General Kamala Harris, Becerra’s office was battling a defense that argued Robert Lewis, originally sentenced to death in 1991, was ineligible for execution because he was intellectually disabled. Lewis’s attorney, Robert Sanger, told The Intercept that while individual attorneys general can’t control everything their deputies do, he was disappointed with how Becerra’s office handled the case. 

“I was kind of feeling like it would be a good time for the AG to say, ‘OK, we tried and he’s intellectually disabled. We got that determination made. Let’s just let it go,’” Sanger recalled. “Instead, it went all the way to oral arguments in front of the [state] Supreme Court.”

The effort failed: The Supreme Court of California overturned Lewis’s death sentence in 2018, and the state legislature overwhelmingly passed a measure banning the practice of adjusting IQ based on race in death penalty cases two years later. 

Becerra is now polling first in the crowded race to replace term-limited Democratic California Gov. Gavin Newsom. His campaign had at first lagged behind his opponents, but then-Rep. Eric Swalwell was hit with explosive sexual assault allegations — which he denies — and dropped out, and Becerra surged to the front of the field. He’s just ahead of Trump-backed Republican candidate Steve Hilton, followed by Tom Steyer, the hedge-fund billionaire racking up endorsements from progressive groups including Our Revolution and praise from the California chapter of the Democratic Socialists of America. 

In Lewis’s case, Becerra picked up where Harris left off; her office had been the first to ask the courts to artificially inflate Lewis’s IQ so the state could execute him. 

“On the one hand, he’s part of a long line of Democratic attorney generals who have taken this approach of, ‘It’s not my problem,’ not accepting responsibility for what their criminal attorneys are doing in court,” said Natasha Minsker, who leads the California Anti-Death Penalty Coalition, which helped push the bill banning the practice of race-based IQ adjustments for people on death row. “On the other hand, it just demonstrates where their true priorities and values are.” 

Becerra has not taken a clear public position on the death penalty in his gubernatorial campaign, but his critics have raised concerns about his pursuit of executions at a time when his party was moving in the opposite direction. He has said he has “serious reservations” about the death penalty and voted for a 2016 state ballot measure to abolish it in California, where the state hasn’t executed anyone since 2006. Still, two years after his vote, Becerra’s office argued to execute Lewis. Though Newsom imposed a moratorium on capital punishment in 2019, Becerra fought to uphold death penalty sentences during the Covid-19 pandemic. And though he oversaw law enforcement for four years in California, a state that has significantly cut its prison population in recent years and adopted other reforms under pressure from activists, Becerra’s criminal justice record has not played a large part in his gubernatorial campaign. 

After serving as California attorney general, Becerra was named secretary of Health and Human Services during the Biden administration. His name recognition from that post, plus 24 years in Congress, have earned him endorsements from Democrats including Reps. Jim Clyburn, D-S.C., and Ted Lieu, D-Calif.; state and local elected officials; and several labor unions including SEIU California, California State Council of Laborers, and the United Nurses Associations of California.

Still, his former colleagues from his time leading HHS raised eyebrows as his campaign gathered speed after Swalwell’s exit, and some of Becerra’s critics have seized on his overseeing of migrant children as HHS secretary. Also looming behind his surge is a criminal trial involving his former political adviser and Newsom’s former chief of staff, Dana Williamson, who pleaded guilty on Thursday to three felonies in a corruption case involving scheme to steal money from Becerra’s campaign. In a statement last week after the plea, Becerra said; “As I said from day one, I was not involved, I did nothing wrong. And now the record confirms it. We can close the book on this.”

Becerra’s criminal justice record has received less scrutiny in the gubernatorial race, where Becerra is competing with Republican opponents stressing their own tough-on-crime bonafides. 

Becerra’s campaign website outlines his priorities as fighting Donald Trump, building more affordable housing, lowering costs, building clean energy, improving California’s disaster preparedness, channeling AI “for human benefit,” and addressing homelessness. It does not have a specific page devoted to criminal justice. 

In response to a questionnaire from the political arm of the California chapters of the American Civil Liberties Union, which declined to comment on Becerra’s record for this story, Becerra said he agrees with reforms like prioritizing prevention strategies over punitive sentencing and improving funding and staffing for public defender’s offices. He also said he would support banning facial recognition in police body cameras, more public access to police records, and having social service workers respond to homelessness and mental health crises instead of police. 

“We see this repeatedly,” Minsker said. “Democratic politicians want to take credit for the progressive things they did as attorney general, but they are not taking responsibility for the regressive positions that the office advanced under their leadership.” 

Becerra’s campaign did not respond to a request for comment. 

While Becerra has not had to thoroughly address his criminal justice record yet on the campaign trail, the topic plagued his predecessor as attorney general, Kamala Harris, when she ran for president in 2020. 

Harris, who served as California attorney general from 2011 to 2017 and San Francisco district attorney before that, faced myriad attacks from left and right that hampered her first presidential bid over her prosecutorial record while she campaigned as a reformer. 

At the time, activists across the United States were animated by the police killings of George Floyd and Breonna Taylor, which set off a wave of protests and heightened scrutiny of so-called “tough on crime” politics. Six years later, the political winds have largely shifted.

Sanger, the attorney in the IQ death penalty case, said he felt that some of the attacks on Harris were unfair, because attorneys general “can’t go through and regulate every single thing that their deputies do in these very complex cases.” But, he added, he’s been generally dissatisfied with California’s last three top prosecutors. 

“I have been disappointed in each one of those attorneys general in not taking a more active role with their deputy attorneys general, and with them not taking a position on the death penalty,” Sanger said. 

As attorney general, Becerra also faced criticism for shielding police from measures designed to hold them accountable. Two major California newspaper editorial boards wrote scathing criticisms in 2019 saying Becerra sided with law enforcement “against public transparency” and had betrayed both “public trust and the law” by not complying with a state police transparency law. 

At the time, Becerra threatened to charge journalists with crimes unless they destroyed a list of police officers convicted of crimes. Becerra took more than $300,000 in campaign funds from law enforcement unions in his run for attorney general. The political action committee for the California Correctional Peace Officers Association, a state prison guards’ union, gave $320,000 to a group backing Becerra and other candidates that cycle. News outlets raised questions about his ability to “police the police,” while owing much of his campaign support to their unions. 

The prison guard’s union gave $25,000 in March to a group opposing Steyer. The group, “California is Not for Sale, No on Steyer for Governor 2026, a Coalition of Housing Advocates, Labor and Small Business,” is spending $24 million against Steyer and is backed by the state’s real estate and energy industries. Steyer is self-funding his campaign with more than $120 million. The CCPOA did not respond to a request for comment.

The prison guards’ union is one of many special interest groups that have played an outsized role in California politics, said James King, a formerly incarcerated prison reform advocate in Oakland. King, who is supporting Steyer, said the CCPOA was spending against Steyer because he is campaigning against those kinds of special interests. Plus, the union wants to preserve its budget, which has increased even as the state has shrunk its prison population in recent years, King said.

“It’s deeply ironic” that groups including the CCPOA “are funding an initiative called ‘California is Not for Sale,’” King said. “They have shown time and time again that they are only interested in advancing the status quo. And it’s clear that any candidate they are working to oppose and spending money to oppose, they must see as a threat to the status quo.” 

In 2020, Becerra sided with law enforcement again to oppose a bill to require independent state investigations of police killings after previously having refused to conduct an independent investigation into the police killing of 22-year-old Sean Monterrosa, whom a police officer shot in the back of the head. Becerra’s office later launched an investigation into destruction of evidence in the case. 

Monterrosa’s sister, Michelle Monterrosa, told the San Francisco Standard last week that she won’t vote for Becerra in the gubernatorial election. “How can we trust someone who continues to put his own advancement before actually standing with the people?” Monterrosa said.