After Thursday’s post about this week’s Supreme Court conference, the court updated its online docket to make clear that it had indeed rejected two of Governor Jerry Brown’s requests for clemency recommendations.  Because the prisoners involved — Richard Barnfield and John Johnson — are twice-convicted felons, the California Constitution bars the Governor from commuting their sentences without the court’s recommendations.

The docket entries are bland.  They relate without explanation that the court sent the Governor a message as to each request stating simply, “the court, with at least 4 judges concurring, hereby declines to make the recommendation required by Article V, section 8 of the California Constitution for the Governor to grant a commutation of sentence.”

However, the court’s innocuous language might mask a harsh rebuke by one governmental branch of another.  Some context is necessary to see why.

In March, the court issued an administrative order explaining in detail that it now considers its constitutionally assigned role in the clemency process to be a limited one.  The court substantially defers to the Governor’s broad pardon and commutation powers.

Sensitive to separation of powers principles, the court said it does not involve itself in evaluating if “an applicant deserves clemency, whether based on claimed innocence of the crime, rehabilitation, mercy, or other grounds” (Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897, 902), but instead merely “provide[s] a check on potential abuses of the power conferred on the executive” (id. at p. 899).  The court believes that the drafters of the constitutional requirement for Supreme Court clemency recommendations intended “to provide some check on the arbitrary use of the pardon power.”  (Id. at p. 900.)  The question to be answered is, “Does [an applicant’s clemency] claim have sufficient support that an act of executive clemency, should the Governor decide to grant it, would not represent an abuse of that power?”  (Id. at p. 902.)

Based on the court’s exposition of its standard of review, the recommendation denials can reasonably be read as expressing the court’s belief that the Governor’s commutation of Barnfield’s and Johnson’s sentences would have been an abuse of power.  That’s a serious charge.

Unfortunately, we don’t now know why the court reached that conclusion.  Publicly available summary letters to the court from the Governor’s Legal Affairs Secretary (see here and here) seemingly disclose no material differences between the Barnfield and Johnson recommendation requests and those of scores of others to which the court has responded favorably (see, e.g., here and here).  The Governor sends documents along with a summary letter, but they are submitted under seal, although a pending motion seeks public access to those records.  The Governor last week opposed the motion.  According to the Los Angeles Times, the Governor claimed “‘an executive privilege that protects the governor’s decision-making process'” and he said “confidentiality is particularly important for clemency application records ‘which contain highly sensitive, and potentially embarrassing materials’ about the applicant as well as candid views of victims and prosecutors.”

Without an explanation from the court or an examination of all the records the court considered, imaginations can run wild and speculation can fixate on dark theories.  The court’s March administrative order reported some of the darker theories that were on the minds of the constitution’s drafters:

Delegates speaking in favor of such restrictions [on executive clemency powers] observed that Governors were frequently importuned for pardons and commutations by family and friends of those convicted, and that in some cases clemency was granted where it appeared to be undeserved.  [Citation.]  “There may be exceptions to the rule, but generally pardons are granted through pressure brought to bear upon the Chief Executive by reason of great political influence or the influence of friends.”  [Citation.]  In addition to personal or factional influence, and petitions based on misrepresentations of fact, the delegates feared the potential for outright corruption:  “If we should be unfortunate enough at some future time to have a corrupt Governor, we might see the absolute necessity of taking the pardoning power out of his hands.”  [Citation.]  (Procedures for Considering Requests for Recommendations, 4 Cal.5th at p. 899.)

What impending abuse of gubernatorial power did the Supreme Court apparently detect?  Maybe it was only a procedural problem; perhaps the recommendation request didn’t include enough necessary documentation to allow the court to determine whether the clemency claims had “sufficient support.”  Or maybe it was one of those darker reasons that had prompted the constitutional check on the Governor’s powers.  We might never know.