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April 26, 2011

Controversial out-the-door clemency grant in California driving new regulations

As detailed in this local article, which is headlined "Clemency bill related to SDSU killing passes," a controversial California clemency grant by then out-going Governor Arnold Schwarzenegger has quickly lead to a legislative response. Here are the details:

The Assembly on Monday unanimously approved legislation to change the clemency process in the wake of a controversial sentence reduction for the son of an influential politician involved in a fatal stabbing at San Diego State University.

The measure would require that prisoners applying for early release or shorter terms notify prosecutors 30 days before a governor can act on a commutation request. Prosecutors would then let victims and families know, giving all parties an opportunity to protest.

The powers of the governor to pardon criminals or reduce their sentences would not be affected. The bill, which now moves to the Senate Public Safety Committee, has yet to draw a no vote. Assemblyman Marty Block, a San Diego Democrat who is carrying Assembly Bill 648, said he anticipates making a few minor changes but expects Gov. Jerry Brown to eventually sign it into law. “He seems very sensitive to getting crime victims notice,” Block said in an interview before the Assembly floor vote....

Arnold Schwarzenegger triggered outrage among families and prosecutors when, in one of his last acts as governor in January, he reduced by more than half the 16-year sentence handed down to Esteban Núñez for his role in the October 2008 slaying of Luis Santos, a Mesa College student, during a brawl at SDSU.

Núñez, the son of former Assembly Speaker Fabian Núñez, a Los Angeles Democrat with close ties to Schwarzenegger, will serve seven years. “There are people who I am sure feel that justice was not done in that case,” Block said. “I feel in order to keep people’s confidence in the justice system this is a bill to pass.”

Brown earlier signaled skepticism over any legislation that could weaken a governor’s powers. But Block has noted that his measure does not challenge the authority of a chief executive, but provides more perspective. “They can make a better decision,” Block said. “They will get input from the other side.”

Governors could still unilaterally reduce prison terms even if prosecutors and families object, Block said. Dumanis added, “This is about the process — not about the power of the governor ... we are very cautious and mindful of the governor’s power under the constitution.”

Schwarzenegger reignited the controversy just last week he was quoted by Newsweek saying “I feel good” about the decision and acknowledged he stepped in on behalf of an ally. “Of course you help a friend,” he told the magazine.

Block on Monday called those comments “insensitive” and “probably would just add to the perception that this was not the finest hour for justice in California.” After the article appeared, Luis Santos’ father expressed outrage. “This is what his politics are about,” Fred Santos said at the time. “It is for the rich and powerful to do favors for each other. Forget about the justice system.”...

Nothing in current law prevents a governor from seeking the views of prosecutors, families and victims before acting.

I am pleased to see that the California legislature has responded with only (needed?) procedural changes and not new substantive restrictions on the clemency power. But it remains disappointing that a single problematic decision to show some (seemingly unjustified) leniency so quickly prompts a legislative response while in many other settings repeated problematic decisions to refuse to show some (seemingly justified) leniency gets little or no attention and never prompts legal reforms.

April 26, 2011 at 09:33 AM | Permalink


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The California Legislature has no authority to impose substantive restrictions on the clemency power.

"Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation...." Cal. Const. Art. V § 8(a).

Posted by: Kent Scheidegger | Apr 26, 2011 12:34:23 PM

what a crock!

just how is some sucker in a legally overclowded minimum acess prison just supposed to notify anyone let alone a specifc prosecutor who may have retired or replaced!

seems to me the that's the STATE'S job!

if they are too dumb to talk to each other how is that the applicate's problem!

Posted by: rodsmith | Apr 26, 2011 7:17:13 PM

Kent is correct on the law. Indeed, clemency has always been seen as exclusively within the authority of the executive. This case, however, provides a basis for wondering whether the law should be changed to provide some sort of legislative input.

Posted by: Bill Otis | Apr 26, 2011 11:26:49 PM

why bill. if the people who wrote the constitution that GAVE the governor's that power wanted the legislator to have any say in it. they WOULD HAVE PUT IT IN AT THAT TIME!

the pardon power is one of the little gotcha's that help balance the diff sides of govt.

if the legislature goes too far with it's laws and the judges and law enforcment go far too in enforcing them. that power is the law CHECK on those branches.

Posted by: rodsmith | Apr 27, 2011 1:57:43 AM

rodsmith --

"why bill[?]"

Because, as this case shows, the power can be abused. Power is less likely to be abused, however, if it is splintered, which was one of the key insights of the Framers.

I'm not saying that one or two cases of abuse are by themselves adequate to justify a constitutional revision. I'm saying that they're adequate to give us food for thought.

Posted by: Bill Otis | Apr 27, 2011 4:14:15 AM

yes but like a lot of things the last few decades. they have a problem with one person...so instead of removing the ONE person they are instead gonna rewrite a document that's worked just fine for a couple of hundred years!

Posted by: rodsmith | Apr 27, 2011 3:02:11 PM

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