Clemency is not a blanket power that the governor can use to impose his personal views

David Carrillo and Brandon Stracener have joined Jason Marks and me in an ongoing conversation about the propriety of a possible future attempt by Governor Newsom to commute to life imprisonment the death sentences of 645 murderers―roughly two-thirds of whom are “twice-convicted” felons within the meaning of the state constitution. (Carrillo & Stracener, “Commute them all, revisited,” Daily Journal, Mar. 22; Matthias, “Clemency for death row felons would kill the will of the voters,” Daily Journal, Mar. 7; Marks, “Blanket commutations and twice-convicted felons,” Daily Journal, Feb. 29.)

Carrillo and Stracener argue that if Newsom is “sincere” in his “broadly applicable moral conviction” that “killing as punishment is always wrong,” he would not “flagrantly” abuse his authority by seeking to commute every pending capital sentences to life without parole on that ground. And because, as they see things, “executive clemency is nearly unlimited and practically unreviewable”―that it’s something strictly “between the governor and the Almighty”―the state supreme court would be compelled “to concur in commuting the 400 or so capital inmates with two or more felonies.” In making this pitch, Carrillo and Stracener fail to distinguish what Newsom is actually authorized to do from what he might likely get away with.

To be sure, as to the relatively few death-sentenced prisoners who are not “twice convicted” felons, Newsom could, on nearly any basis, extend clemency with impunity, which is to say, anyone who was to beseech a court to undo the Governor’s determination would almost certainly fail in the effort. See Santos v. Brown (2015) 238 Cal.App.4th 398 rejecting mandamus and other equitable relief aimed at overturning a grant of clemency because the Governor’s action, even though “it could be seen as deserving of censure and grossly unjust, . … was not illegal.” That is so because California law, like federal law and the law of most states, “generally confer[s] on the executive the power to grant clemency on what grounds he or she deems appropriate.” “Indeed, ‘in most states, “the only oversight of clemency rest[s] with voters who elect the Governors.”’” Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.4th 897, 898.

“The California Constitution is unusual, however, in that it assigns to members of the judicial branch―sitting in their judicial capacity―a formal role in the clemency process.” Id. at pp. 898-899. Article V, section 8 provides that “[t]he Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring. “Thus, while grants of clemency are ordinarily not “reviewable,” they are―in the case of twice-convicted felons―eminently “previewable,” and the court’s proper role in that process is “a traditional judicial one: to provide a check on potential abuses of power conferred on the executive.” Procedures at p. 899.

The precise contours of the court’s role have yet to be fully defined. But here’s what we do know from what the court has roughed out so far in its Procedures:

The court’s preview mandated by Article V certainly “does not require the justices … to determine whether, in the view of each justice, an applicant deserves clemency, whether based on claimed innocence of the crime, rehabilitation, or other grounds,” as it does not “supplement or supplant the Governor’s executive authority.” Nor does it entail holding hearings, conducting “extraordinary investigation,” or undertaking an “intensive examination of the merits of the clemency petition” by the court. But it does call upon the court to exercise “conventional[] legal judgment”―to determine “whether the applicant’s claim has sufficient support that an act of executive clemency, should the Governor choose to grant it, would not represent an abuse of that power.” In short, Article V “does not make the Supreme Court the pardoning power at all.” Procedures at pp. 900-902. But neither does it reduce the court to the rubber stamp Carrillo and Stracener describe.

Believing it proves the propriety of using the clemency power to clear everyone, including twice-convicted felons, from death row, Carrillo and Stracener insist that “no difference at all” exists “between asking 400 times for sentences to be commuted, and asking once for 400.” But California law doesn’t allow Newsom to “ask once for 400,” a fact that supplies the first clue that extending “blanket” immunity on the basis they urge would be an abuse of the governor’s authority.

As the supreme court has observed, clemency provides a means “to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases.” Accordingly, “[t]he statutory application procedures for twice-convicted felons require that an application for pardon or commutation of sentence be made to the Governor, who then must transmit the application to the Board of Parole Hearings. (Pen. Code, § 4802.) After an investigation, the Board of Parole Hearings transmits a written recommendation to the Governor. (Id., § 4813.) If the recommendation is favorable, or if the Governor chooses to forward the application notwithstanding an unfavorable recommendation, the application is forwarded to [the state supreme court] for . . . consideration. (Id., §§ 4850, 4851.)” Procedures at p. 898 (emphases added). “[A]ll papers and documents relied upon in support of and in opposition to the application, including prison records and recommendation of the Board of Prison Terms” must be included among the materials submitted to the court. Pen. Code, § 4851. In addition, Penal Code section 4805, subdivision (b) requires that “at least 10 days before the Governor acts upon an application for a commutation of sentence, written notice of the intention to apply therefor, signed by the person applying, shall be served upon the district attorney of the county where the conviction was had.” The district attorney, in turn, must “make reasonable efforts to notify the victim or victims of the crime or crimes related to the application and the victims’ families who may also submit a recommendation to the Governor for or against commutation of sentence.”

The court’s discussion underscores, and the cited provisions confirm, the many case-specific dimensions of clemency that make it incompatible with “blanket” application. For related reasons, clemency could not properly be used to elevate Newsom’s personal view that “killing as punishment is always wrong” over the electorate’s determination that capital punishment is, at least for some of the worst murderers, entirely appropriate.

Governors are entitled to use their veto power to wholly vitiate laws they don’t like, but only if they act within a narrowly prescribed period and not at all if the legislation was enacted directly by the electorate. Arrogating to oneself through clemency a power denied by law is not an act of mercy, but of self-gratification; it’s a grievous wrong―an abuse of authority―that can be neither disguised nor countenanced with soaring rhetoric about what “move[s] a governor’s heart.” Quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud; what cannot be done directly cannot be done indirectly.

Few would dispute that a governor who believes mere “confinement as punishment is always wrong” could not, on that account and in the name of “mercy,” pardon every criminal serving time in state prison or county jail. Likewise, Newsom’s belief that “killing as punishment is always wrong” would not entitle him to commute all death sentences to life terms. Fortunately, were he ever to try anything so audacious, the state constitution ensures―at least as to “the 400 or so capital inmates with two or more felonies”―that the supreme court wouldn’t be powerless to block him.

– Ron Matthias

Retired prosecutor who specialized in homicide appeals during his 35-year career as senior assistant attorney general in the California Attorney General’s Office.