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.