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January 15, 2011

California clemency controversy prompting talk of reform to clemency power

As detailed in this local article, which is headlined "Nunez sentencing controversy spurs legislation; Proposals would bar governors from 11th-hour sentence reductions," some legislators in California are talking about clemency reforms in response to what has been widely perceived as a clemency injustice by former Governor Arnold Schwarzenegger on his way out of office earlier this month.  Here are the basics:

Assemblyman Marty Block says he will introduce legislation in the coming days that would give families of victims and district attorneys a 30-day warning that a prisoner may be set free early by the governor.  The San Diego Democrat’s proposal is in response to former Gov. Arnold Schwarzenegger’s 11th-hour decision to reduce the prison sentence of Esteban Nuñez to seven years from 16 years in the 2008 stabbing death of Luis Santos at San Diego State University.

Schwarzenegger took the action the night before he left office.  Nuñez had pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon.

Block is not alone in offering legislation.  Assemblyman Allan Mansoor, R-Costa Mesa, has also said he plans to carry a bill with similar requirements.

The surprise commutation of Nuñez’ sentence shocked the victim’s family and San Diego County District Attorney Bonnie Dumanis and earned Schwarzenegger nationwide scorn.  It also drew sharp criticism for the appearance of political favoritism.  Nuñez is the son for former Assembly Speaker Fabian Nuñez, a Los Angeles Democrat who worked with Schwarzenegger on budget issues and landmark legislation to combat global warming by reducing greenhouse gas emissions.

“I thought it was outrageous that he did so without first contacting the district attorney, the judge or the family,” Block said in an interview Friday afternoon.  Asked if it was a politically motivated decision, Block said: “I don’t know but it certainly gives the appearance.  We need to have the public confident in our system of justice.  Actions like this erode confidence in our justice system.”

Block said he is still finalizing details, but expects the measure to require a prisoner or someone acting on behalf of a prisoner to notify the district attorney who handled the case and the victim’s family 30 days before submitting a plea for a reduced sentence or pardon.  A governor would be precluded from acting on the request during that 30-day period....

Block said he is still weighing whether to require commutation requests to be made generally available to the public.  “That’s something I will be discussing with the district attorney to get their opinions,” he said.  “There may be some reason they don’t want it public.”  However, he said he would not include a provision that would bar law enforcement or families form voluntarily disclosing the information....

Block said he was approached by Dumanis, who has no made secret that she is furious with the governor for his action.  Mansoor, a freshman lawmaker, would require a governor to notify interested parties such as the prosecutor and victim’s family 30 days before acting. “We can’t go back in time and change what has already taken place, but we can ensure that this type of action never takes place again,” he told the Associated Press....

Earlier this week, Schwarzenegger sent a letter to the family of the slain Santos, a Mesa College student.  He apologized for not notifying them, but defended reducing the sentence.  “I understand why you may never comprehend or agree with my decision and I am profoundly sorry that my decision has added to your burden,” Schwarzenegger wrote.

Because I always favor greater transparency in all sentencing decision-making, I generally favor mandatory notice/disclosure provisions, even in the arena of clemency requests.  Consequently, though I often worry about sentencing reforms inspired by one troublesome case, I am drawn to these kinds of reforms being discussed now in California. 

That said, I am not sure I like the idea of a rigid waiting period that limits in all cases when an executive official can grant clemency unless there are some provisions allowing exceptions in extreme cases.  What if a Governor is convinced of a death row inmate's innocence based on evidence that emerges only a week before a scheduled execution, but courts are unable or unwilling to grant relief for procedural reasons?  Especially given the important role of executive clemency as a last-minute fail-safe for concerns of justice and mercy, I believe flexible standards are always to be preferred over rigid restrictions in this context.

January 15, 2011 at 12:12 PM | Permalink

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Comments

"What if a Governor is convinced of a death row inmate's innocence based on evidence that emerges only a week before a scheduled execution, but courts are unable or unwilling to grant relief for procedural reasons?"

That of course would be a microscopically rare event, but would not preclude legislative action of the kind the article talks about. The transparency measure would include a provision that allows the Governor to postpone the execution for 30 days, which will allow his successor to act.

But the abuse of midnight pardons, illustrated here and even more graphically (and frequently) in the Clinton Administration, calls out for reform. And it's not just transparency that's needed. Political accountability is also needed; if the clemency decision is justified, the Executive should be in a position to be questioned about it while he still holds power. If it's not justified, then it shouldn't be granted at all.

In addition, I would add to reform legislation a requirement that the victim, the victim's family, and the original prosecuting office be given notice and the opportunity to be heard before any clemency grant.

Posted by: Bill Otis | Jan 15, 2011 2:43:24 PM

Bill - political should not be used as a modifier for accountability. Clemency is political, should we add more politics?

Posted by: beth | Jan 15, 2011 7:29:04 PM

beth --

By "political accountability," I mean acting on a clemency request at a time when voters will have the opportunity to question the executive who grants it and vote against him or his party if they believe a clemency grant was, for example, dangerous or (directly or otherwise) bought-and-paid-for. Midnight pardons of the kind Schwarzenegger and Clinton granted on their way out the door are the sort of thing I have in mind.

"Political" is not always a dirty word. It is perfectly legitimate for voters to make up their minds about an incumbent executive, or a candidate, based partly on his view of the judicial branch. For example, some people voted for (or against) Obama based on their hope (or fear) of the sort of appointments he would make to the Supreme Court. I view such a basis for a voter's decision as valid, and I don't know of anyone who thinks otherwise.

Similarly with pardons. Indeed, the executive is properly held MORE politically accountable for his pardoning decisions, since they are not made by his appointees but by his own hand.

Posted by: Bill Otis | Jan 16, 2011 12:47:10 AM

personally i think all these governor's should inform the media and the PUBLIC that up to recently there was NO RIGHT TO KNOW! and they are not LEGALLY REQUIRED TO TELL ANYONE ANYTHING!

Posted by: rodsmith | Jan 16, 2011 1:06:30 AM

I understand Bill. I just fear adding layers of oversight to any process. We need more clarity in every political decision. Executive clemency and pardoning is almost paralyzed, but the process is clear. How could adding layers of code and regulation to the process help?

Posted by: beth | Jan 16, 2011 10:23:16 AM

beth --

Being efficient is good. Being correct is better. Being correct AND transparent is best.

Posted by: Bill Otis | Jan 16, 2011 3:05:53 PM

Aha, yes. I agree. Let's not try to agree on the definitions for efficient, correct and transparent, or for that matter good, better, best. Everything would probably get all mucked up. Sometimes it's best not to try to get to the bottom of it.

Posted by: beth | Jan 16, 2011 5:14:34 PM

beth, tell that to the dead kid's family who are justifiably outraged by this clear abuse of power. The problem with abuses such as this is that it undermines the state's moral authority to punish.

Posted by: federalist | Jan 17, 2011 11:40:37 AM

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