Re­jec­tion of Brown’s par­dons de­mands ex­pla­na­tion

The Mercury News Weekend - - OPINION - By Peter B. Collins Peter B. Collins is a vet­eran Bay Area ra­dio host, with a daily pod­cast at pe­ter­b­collins.com.

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.

THE ASSOCIATED PRESS

The Cal­i­for­nia Supreme Court owes Gov. Jerry Brown an ex­pla­na­tion for why it re­jected 10 of his par­dons.

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