A month ago, we noted it seemed unlikely that Governor Jerry Brown would commute all California death penalty sentences before he leaves office, now less than four months from now.  That hasn’t stopped speculation — including by some prosecutors — that the Governor is still planning a mass death row evacuation.  (Here and here.)

The speculation has a shaky foundation.  It’s not impossible, but there is currently no evidence that Brown wants to commute any death penalty sentences, let alone hundreds.

The Supreme Court would almost certainly get advance notice of the Governor’s intent to issue multiple death penalty commutations.  Under the state constitution, a court majority must sign off on clemency for any person who has been convicted of two or more felonies, a category that includes many condemned prisoners.  Although Brown has been commuting some life-without-parole sentences, he has not sent any request for a court recommendation on a death penalty commutation.

Additionally, time is running out for the court to act on clemency recommendation requests before the Governor’s term ends at the beginning of January.  This week, the court made three such recommendations, but the requests for each were submitted four months earlier.  It seems improbable that the court would be able to process even a dozen death penalty commutation recommendation requests before Brown’s successor takes office.  That doesn’t rule out a single request for a blanket recommendation of clemency for every death row prisoner with more than one felony conviction, but none has been submitted yet and it’s very late in the day for the court to have adequate time to rule on such a dramatic and far-reaching action.

But, the speculation goes, the court issued an order in March that, according to one of the speculators, “basically green-lighted the governor to grant clemency to anyone” without any court interference.  That’s not what the order says.  Although the court explained it would make only a deferential review of the Governor’s clemency requests, it still said it would “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.”  That doesn’t give the Governor a blank check.  The court could well conclude that a commutation of all death sentences, without regard to the circumstances of each case, is an abuse of the clemency power.

There are currently 14 undecided clemency recommendation requests.  The four most recent ones, docketed since we published a list last month, are:

  • Arturo Guerrero:  commutation of sentence of 10 years for robbery plus two 5 year prior prison term enhancements.
  • Kenneth Jordan:  commutation of two consecutive sentences of life without parole for two murders, plus an additional 17 years for two counts of robbery, firearm enhancements, and a prior felony enhancement.
  • Eric Lockhart:  commutation of LWOP murder sentence.
  • David Smith:  commutation of sentence of 25 years to life for each of 10 counts of grand theft of personal property over $400.