Criminal Justice

California Supreme Court spikes clemency petitions recommended by outgoing governor

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During the final days that California Gov. Jerry Brown was in office, the California Supreme Court rejected 10 petitions for clemency that his office would otherwise have granted.

The Sacramento Bee said the rejections surprised watchers of the state high court, which hadn’t rejected any governor-backed clemency requests since 1930.

Brown, a Democrat, handed the state over Jan. 7 to incoming Gov. Gavin Newsom, also a Democrat. Brown had actively used his clemency powers during his most recent two terms as governor (he also had the job in the late 1970s and early 1980s), granting 1,332 pardons and 283 commutations. The state constitution requires the California Supreme Court to approve clemency for any defendant convicted of a felony more than once, and the court has approved 86 clemency requests during Brown’s most recent eight years in office.

Observers of the state high court aren’t sure why it rejected those 10 cases. David Ettinger, an attorney at appellate firm Horvitz & Levy who writes about the California Supreme Court at a blog called At the Lectern, said he couldn’t distinguish them from accepted cases based on public information. The Sacramento Bee quoted a district attorney and a criminal justice advocate who would both like more specific guidance from the high court. Brown himself told reporters: “Read the ones who were approved and read the ones who were disapproved, and you tell me what the rule is,” he said.

As the Los Angeles Times editorial board and radio host Peter Collins note in separate opinion pieces, the rejections came months after the California Supreme Court published an order noting that it overrides cases not on the merits but when there’s been an abuse of power. It’s unclear here whether the court sees an abuse of power in Brown’s clemency recommendations and what abuses it sees, in part because the governor’s office automatically seals clemency cases.

Some insight might come if the First Amendment Coalition succeeds in its bid to unseal five of the 10 rejected files. The coalition has successfully asked to unseal records of the pardon granted to former state Sen. Roderick Wright, who was convicted of felony charges after it was discovered that he didn’t live in his own district. First Amendment Coalition legal fellow Glen Smith told the Sacramento Bee that the process was “too automatic” and seals information that doesn’t require it.

Among those rejected for clemency is Borey Ai, a Cambodian refugee who was released from prison on parole in 2016 but sought a pardon to avoid deportation. Ai attempted to rob a liquor store at age 14 and shot and killed the store’s owner. Another applicant was Joe Hernandez, who is serving life without parole for murdering a rival gang member and a bystander in 1993. Hernandez said he’s reformed himself in prison and would like another chance “to show the love and compassion that I have.”

His formal notice that his clemency bid was rejected said Brown’s office hopes that Hernandez can try again under Newsom, “after doing further work that shows your ongoing commitment to transformation.”

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