“The death penalty is on the whole fading away, although in many places it’s still on the books and prosecutors are going to go for it in extreme cases,” said Robert Weisberg, a Stanford law professor and co-director of the school’s Criminal Justice Center. He said the statistics, in California and nationally, reflect “a move toward making the death penalty rare, if not abolishing it.”

Weisberg noted that crime rates for murder and other violent offenses have been declining nationwide.

Wagstaffe, the San Mateo County district attorney, was among three county prosecutors who sought unsuccessfully in 2021 to intervene in the long-running case over the legality of California’s lethal-injection procedures. They argued that executions should be resumed and that Newsom had abandoned his duty to defend the state law.

He is “a very smart, serious prosecutor, not a political demagogue,” said Stanford’s Weisberg of Wagstaffe. While Wagstaffe would be going against the trend if he sought the death penalty against Zhao, Weisberg said, he would be doing so in “a very, very, very exceptional case.”