Rejection of Brown’s pardons demands explanation
In March 2018 the California Supreme Court published a remarkable order, signed by all six sitting justices, intended to clarify its role in reviewing acts of clemency by the governor. This interesting, nine-page administrative order details the history of California’s peculiar restrictions on the pardon powers of our governors, and clearly states that the court does not review the cases on their merits, but confines its overrides to cases “that represent an abuse of power.”
No definitions, no rational standards and only a single precedent are provided, but respect is expressed for the executive’s “power to grant clemency on whatever grounds he or she deems appropriate” and for separation of powers. The order was created by the court for the court, not the result of a lawsuit or appeal.
As expected, Gov. Jerry Brown has been more generous with pardons and commutations in his final year, and for the first time since 1930, the court has intervened in 10 cases to reject Brown’s decision — or in legalese, it “declines to recommend” the actions. If we hold the court to its own standards in the March order, we must conclude that it found that Brown has abused his power. I submit that the justices are abusing their discretion in a secretive process that leaves the public to speculate about their motives.
Why, in the most disturbing case, did the court overrule the governor’s pardon of Borey Ai, who won parole in 2016, and is now subject to mandatory deportation to Cambodia, the nation his parents fled before he was born? Why did the court consider Brown’s reduction of sentences — not immediate releases — for a number of second- degree murder convictions to meet the vague standard of “abuse of power”? Why did the court OK the pardon for Rod Wright, the former Democratic state senator convicted for lying about living in his district? And how do these cases compare to Gov. Arnold Schwarzenegger’s commutation for the son of former Assembly Speaker Fabian Nuñez?
The court has agreed to release the sealed documents from the Wright case, so we can hope to learn more about it. The court should be fully transparent in all of these cases and ar- ticulate clear standards to the public and clemency petitioners. It must explain exactly what factors that the governor used to pardon ex- convict Ai that amounted to an abuse of power, requiring their intervention and essentially deciding in favor of Ai’s deportation.
Leaving it to legal experts to comment on separation of powers issues, I do see a major conflict of interest, as the court controls the broken process that led these convicts to seek clemency in the first place. We can be sure that almost every one of them has brought numerous appeals that reached the court, and they went to the governor as a last resort. Then, at the final stage, the court cherrypicked 10 of them for rejection with no explanation so far. Did the ghost of former Chief Justice Rose Bird provoke the justices to protect their tough- oncrime image?
As a radio host, and an advocate for wrongfully convicted prisoners, I’ve had a number of exchanges with Brown about prisons and parole. I think he deserves credit for many reforms, reducing the state prison population and allowing the parole system to work as intended.
He also fixed the sentencing laws he screwed up in the 1970s. But the Bird recall and his stints as Oakland’s mayor and the state attorney general left him cautious about being seen as “soft on crime.” He has never used his clemency power in a blatantly political move, like President Trump’s pardon for Joe Arpaio. And he didn’t try to clear death row, as advocated by six former governors in a December New York Times op- ed.
It’s an insult to Brown for the court to veto his decisions without any showing of improper motive or abuse of power. And respect for the court is undermined by its secretive and arbitrary actions in these cases.