« "State Legislatures and Solving the Eighth Amendment Ratchet Puzzle" | Main | "Prosecuting in the Shadow of the Jury" »

September 1, 2018

Could Gov Jerry Brown really be tempted to commute all of California's death row on his way out of office?

The question in the title of this post is prompted by this recent Fox News article headlined with a similar question, "Will Jerry Brown commute sentences of every death row inmate in one of his last acts as California governor?". Here are excerpts:

[A]s Jerry Brown’s tenure as governor of California draws to a close in January, capital punishment supporters have raised the specter that he could commute many, if not all, of the sentences.

On March 28, California’s Supreme Court issued an administrative order making it possible for Brown to commute the sentences or grant clemency.

Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, told the Orange County Register earlier this week that this removes any impediment Brown may have faced. Before that, a governor had to get the approval of the majority of the state Supreme Court in the case of an inmate with two or more felony convictions. “They basically have green-lighted the governor to grant clemency to anyone…and said they won’t interfere,” she said.

California has the largest death row population in the country, but only 13 have been executed since capital punishment was reintroduced to the state in 1978, with the last one occurring in 2006. Appeals that drag out for many years are common. Last year, there were 400 death penalty appeals pending.

Despite its liberal reputation, more than half of California’s residents have expressed support for the death penalty, striking down referenda calling for it to end.

Brown, a former Jesuit seminarian who as a young man demonstrated against capital punishment, made his opposition to it clear during his political campaigns, but also said he’d respect the law regarding it while serving as attorney general and governor.

Asked if the governor was considering commuting death sentences, a spokesperson for Brown told Fox News: “A request for commutation is a serious matter, and every applicant is carefully and diligently vetted. The Governor issued commutations earlier this month… California inmates can petition to have their sentence reduced or eliminated by applying for a commutation of sentence. To be clear, no individuals on death row have received commutations.”...

Kent Scheidegger, an attorney who argued for Proposition 66 – a measure to speed up executions – said that anything is possible as far as Brown and California politics, but he believed the governor would not commute death sentences. “Despite his personal opinion, he said he’d enforce the death penalty,” said Scheidegger, who is legal director of the Criminal Justice Legal Foundation in California. Scheidegger expressed concern about the state high court’s order appearing to give Brown more sway over commuting death sentences, telling Fox News: “That’s worrisome.”

Since executions rarely have been carried out in California and elsewhere, some have called the death penalty symbolic, and pointless. Scheidegger said he disagrees. “It’s important because there are some crimes for which anything less is simply not justice.”

September 1, 2018 at 04:41 PM | Permalink

Comments

No he wont commute all if death row inmates. But he could commute a few deserving ones and severly ill.

Posted by: MidWestGuy | Sep 2, 2018 7:40:39 AM

All commutations and pardons of twice convicted felony offenders, which I suspect is most death row prisoners, require the approval of 4 or more California Supreme Court justices. The CA Supreme Court recently modified their rule on this topic clarifying that they will not independently weigh the merits of the commutation, but rather assure its conformity with the rules, of which there are few.

If Brown does commute all death sentences, or even a whole bunch, and the California Supreme Court lets it happen, the justices better look over their shoulder. The damage to the institution that would follow with another attempt to remove anti-death penalty justices (that’s how it will be framed) happened once already. It would take decades for respect for the court to recover and some of them may not have a job anymore.

The Legislature has swung the criminal justice pendulum back hard. Those choices may very work their way out in a negative way right around the time some judges come up for retention election. It could even fuel a recall.

All that being said, I am not so sure that Brown won’t do it.

Posted by: David | Sep 2, 2018 12:06:48 PM

He will do it.

Posted by: federalist | Sep 3, 2018 8:50:31 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB