State grap­ples with his­toric clemency re­jec­tions

The Mercury News - - Local News - By Alexei Kos­eff

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.

The two talk daily while Her­nan­dez, 47, serves a life sen­tence without the pos­si­bil­ity of pa­role, plus an­other 46 years to life, for two mur­ders he com­mit­ted in 1993. As a young gang­ster in El Monte in Los An­ge­les County, Her­nan­dez killed a ri­val gang mem­ber one night, then shot two other men whom he mis­tak­enly be­lieved were part of a ri­val gang. One sur­vived.

Dur­ing more than 25 years in prison, Her­nan­dez said he has come to terms with how “self-cen­tered” his be­hav­ior was and be­gun us­ing his “tragedies to help peo­ple,” in­clud­ing found­ing a youth di­ver­sion pro­gram and train­ing ser­vice dogs.

So when he ap­plied for clemency last year, it was flagged by the gover­nor’s of­fice, which noted Her­nan­dez’s clean dis­ci­plinary record, par­tic­i­pa­tion in self-help classes and pos­i­tive rat­ings from su­per­vi­sors in his work as a care­giver for other in­mates. De­spite op­po­si­tion from the Los An­ge­les County Dis­trict At­tor­ney’s Of­fice, the Board of Pa­role Hear­ings rec­om­mended in Oc­to­ber that then-Gov. Jerry Brown grant a com­mu­ta­tion, which would shorten Her­nan­dez’s sen­tence and even­tu­ally al­low him to seek pa­role.

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 10 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.

New­som’s new re­spon­si­bil­ity

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 “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 last 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.”

‘A very high bar” for clemency

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.

“It’s a very high bar and it’s a very select few that even get there. So to even make it that far, that per­son must have done an in­cred­i­ble amount of re­ha­bil­i­ta­tive work, for the gover­nor to take no­tice,” she said.

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.”

He re­cently op­posed the par­don of Borey Ai, whose ap­pli­ca­tion was among the 10 re­jected by the Supreme Court. Ai, a Cam­bo­dian refugee who shot and killed the owner of a liquor store dur­ing an at­tempted rob­bery when he was 14, was re­leased on pa­role in 2016 and sought a par­don to avoid de­por­ta­tion. Rosen’s of­fice ar­gued that Ai had down­played the sever­ity of his crime and noted that the vic­tim’s fam­ily ar­dently op­posed clemency.

“A lot of peo­ple and in­sti­tu­tions in our county have spent con­sid­er­able re­sources to pros­e­cute this per­son,” Rosen said, “and that should not be lightly over­turned or changed.”

Jerry Brown’s of­fice sealed records

A court rep­re­sen­ta­tive said the jus­tices are not plan­ning to pro­vide any fur­ther clar­i­fi­ca­tion on their po­si­tion. But the pub­lic could get more an­swers if the court agrees to open up clemency files, which are au­to­mat­i­cally sealed by the gover­nor’s of­fice.

The First Amend­ment Coali­tion, a non­profit that ad­vo­cates for free speech and open gov­ern­ment, made a mo­tion last month to un­seal five of the com­mu­ta­tion files re­viewed by the Supreme Court. Le­gal fel­low Glen Smith said the pub­lic de­serves to un­der­stand more about the gover­nor’s process for re­view­ing these cases, which were pros­e­cuted in pub­lic tri­als.

“Why were these in­di­vid­u­als de­serv­ing of le­niency, es­pe­cially given the sever­ity of their crimes?” he said.

The gover­nor’s of­fice op­posed the re­quests, ar­gu­ing that the in­for­ma­tion in the com­mu­ta­tion files is “too sen­si­tive.” It con­tends that the gover­nor’s de­lib­er­a­tive process should be pro­tected and that al­low­ing ac­cess to files like the pa­role board in­ves­ti­ga­tion might make wit­nesses more re­luc­tant to par­tic­i­pate.

Smith said the First Amend­ment Coali­tion was will­ing to have a dis­cus­sion about which records should be pro­tected, but that the process has be­come “too au­to­matic.” He points to the case of Rod Wright, the for­mer Demo­cratic law­maker who re­signed in 2014 after he was con­victed of felony charges re­lated to liv­ing out­side the dis­trict where he ran for of­fice.

Brown par­doned Wright in Novem­ber and, after an­other mo­tion by the First Amend­ment Coali­tion, his of­fice re­leased part of the clemency file this month be­cause of “spe­cial pub­lic in­ter­est” in the case. While some doc­u­ments, such as emails be­tween the gover­nor’s of­fice and the pa­role board and the par­don in­ves­ti­ga­tion re­port, re­main redacted pend­ing fur­ther court pro­ceed­ings, oth­ers that were re­leased were al­ready pub­licly avail­able, in­clud­ing Wright’s par­don ap­pli­ca­tion and his court ap­peal.

“Why did any­one think this had to be sealed to be­gin with?” Smith said. “They’re just paint­ing with too broad a brush.”

Her­nan­dez said he was ini­tially hurt and con­fused by the re­jec­tion of his clemency ap­pli­ca­tion, which made him sec­ond-guess his progress. Now he feels that he was a “po­lit­i­cal ca­su­alty” in the Supreme Court’s process. He’d like to seek clemency again, though he’s not sure what he could do dif­fer­ently a sec­ond time.

“I killed two peo­ple, so I don’t de­serve it. What I’m ask­ing for is an­other chance,” he said. “I want to be able to show the love and com­pas­sion that I have.”

On Wednes­day, Her­nan­dez re­ceived a for­mal no­tice from the gover­nor’s of­fice about the court’s de­ci­sion. It en­cour­aged him “not to lose hope.”

“It is my sin­cere hope that you can earn the rec­om­men­da­tion of the Supreme Court if you file an­other clemency ap­pli­ca­tion with Gov. New­som after do­ing fur­ther work that shows your on­go­ing com­mit­ment to trans­for­ma­tion,” reads the let­ter from Deputy Le­gal Af­fairs Sec­re­tary Kristina Lindquist.

“It is my sin­cere hope that you can earn the rec­om­men­da­tion of the Supreme Court if you file an­other clemency ap­pli­ca­tion with Gov. New­som after do­ing fur­ther work that shows your on­go­ing com­mit­ment to trans­for­ma­tion.” — In a let­ter from Deputy Le­gal Af­fairs Sec­re­tary Kristina Lindquist

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