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January 13, 2019

California Supreme Court exercises its curious, rarely-used power to reject 10 of out-going Gov's clemencies

I have often said California is a crazy and crazy-interesting state for sentencing developments, and this story about recent clemency developments showcases this reality.  The story is headlined "‘It was like a ton of bricks crushed me’: California grapples with historic clemency rejections," and here are some of the particulars:

Joe Hernandez found out that the California Supreme Court had rejected his commutation request late last month during a phone call with his wife, when she checked the online docket for his case....

His family was already planning for the possibility when, on Dec. 21, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation. “It was like a ton of bricks crushed me,” Hernandez said in a phone interview. “I didn’t know what to say. This was our first real hope after 25 years.”

Hernandez’s was one of ten clemency actions blocked by the court in the final weeks of the Brown administration, the first time since 1930 that it has rejected pardon or commutation requests under consideration by a governor.

The move stunned observers of the California Supreme Court, which under the state constitution must review clemency requests for anyone convicted of felony more than once, and has left them grasping for answers about how to proceed. The court approved 86 other applications over the past eight years.

Even Brown seemed to be unsure what to make of the rejections. He granted a historic 1,332 pardons and 283 commutations during his final two terms, part of a broader push to scale back the state’s tough-on-crime approach that began under his first governorship.

“Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is,” Brown told reporters in early January, shortly before he left office.

That leaves new Gov. Gavin Newsom, a fellow Democrat, to puzzle through the court’s position as he considers whether to continue Brown’s powerful embrace of executive clemency. “The weight of that is pretty heavy,” Newsom said at a benefit concert on Sunday before his inauguration. “The governor looks at dozens of those every single week. There’s a binder. Quite literally, every time I see him, he shows me the binder and he says, ‘This is one of the most important jobs that you will have.’”

The court wrote an administrative order in March about its role in evaluating pardon and commutation applications that stated it was not acting on the merits of the cases but rather to determine whether granting clemency would be an “abuse of power” by the governor.

Nevertheless, it’s no more clear now to experts what that boundary might be. David Ettinger, an appellate lawyer who writes a blog about the California Supreme Court called At the Lectern, said that from the information publicly available about the rejected cases, he couldn’t distinguish them from “a significant number of other life without parole commutations that the Supreme Court signed off on. I just don’t know.”

“There’s really no guidance for future courts, for future clemency requests, for future governors making requests, as to why certain ones might get blocked and certain ones won’t,” he said. “It is a problem for future courts and future governors, how to apply this general ‘abuse of power’ standard to specific cases.”

Kate Chatfield, policy director for Re:store Justice, a criminal justice nonprofit, has assisted two clients with commutation applications. She said the court’s action was unlikely to change the work of lawyers in her field or the desire of inmates to seek clemency. But she was concerned about the Supreme Court’s standard, and how to address it, if it is not a review of the merits of a case....

Santa Clara County District Attorney Jeff Rosen would also like more guidance from the court, which he said could help prosecutors focus their arguments in cases they oppose. His office weighs in on every clemency request that the governor is considering for a case they prosecuted, some of which have also been reviewed by the Supreme Court. He said his team determines a position by looking at criteria like the underlying crime, how the perpetrator has behaved in prison and the wishes of the victim’s family, a particularly important factor in murder cases.

“The thing about governors and clemency is it’s a very powerful tool that does not have a lot of checks on it,” Rosen said. “I believe that the governor would want all of the relevant information to make the decision.”

January 13, 2019 at 09:54 PM | Permalink

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