Until recently, the Supreme Court had apparently not prevented a gubernatorial clemency grant since 1930. But, starting four weeks ago, the court has blocked clemency seven different times, including four on Friday and today. (See Sophia Bollag’s report — “Court puts limits on Jerry Brown’s powers, denies clemency to 6 California killers” — in the Sacramento Bee. (I’m quoted in the article.)) Also, the court has confirmed that its members are split on the most recent pardon and commutation actions, although the extent of the division is not clear.

A clemency recommendation by at least four Supreme Court justices is required by the State constitution before a Governor can pardon or commute the sentence of a twice-convicted felon. Under a deferential standard of review announced by the court in March, the court’s refusal to make a recommendation implies a finding of a gubernatorial abuse of power.

The court had not made public either its reasons or its votes for approving or rejecting Governor Brown’s clemency recommendation requests. The reasoning remains unexplained, but at least some votes are now being disclosed. The court’s decision letters to Brown now report “the justices’ determination that, now and hereafter, any such communication to you should note the contrary vote of any justice who elects to have that contrary vote noted.” The practice of disclosing contrary votes only when a dissenting justice elects to do so is the same as for the optional publicizing of dissenting votes when the court denies a petition for review.

It’s likely that this practice is hiding some contrary votes in at least three cases. A Court of Appeal justice was assigned to temporarily sit in each of those. As explained, the assignments signified that the six permanent justices were evenly split on whether to recommend clemency. Yet, the letters to the Governor disclosed only one or two dissenting votes. Either some votes shifted after the pro tem justices were assigned or some dissenters didn’t want to go public. The latter is the more likely.

We reported on four positive clemency recommendations on Friday. In each one, we now know that Justices Ming Chin and Carol Corrigan noted votes to block clemency.

The other five clemency actions, some on Friday and some today, are:

  • Howard Ford: The court blocked a commutation of a sentence of life without the possibility of parole plus 13 years for murder, robbery, and firearm and prior felony enhancements. Fifth District Court of Appeal Justice Charles S. Poochigian served as the pro tem and possibly cast a deciding vote, although only Justice Goodwin Liu noted a vote to approve the commutation.
  • Joe Hernandez: The court blocked a commutation of an LWOP plus 46-years-to-life sentence for two counts of murder, one count of attempted murder, and firearm and criminal street gang enhancements. Only Justice Liu noted a vote to approve the commutation.
  • Huan Nguyen:  The court blocked a commutation of an LWOP plus two years sentence for murder and street terrorism. Only Justice Liu noted a vote to approve the commutation.
  • Anthony Guzman: The court recommended a commutation of an LWOP sentence for murder plus 3 years for burglary. Justices Chin and Corrigan noted votes to block the commutation.
  • Kenny Lee:  The court blocked a commutation of an LWOP plus 5 years sentence for murder and a firearm enhancement. Only Justice Liu noted a vote to approve the commutation.

We believe there are still eight more unresolved clemency recommendation requests.

[Update: Governor Brown today announced 143 pardons and 131 commutations. The Governor’s press release also reports that he “today issued an order regarding the pending application for executive clemency submitted by Kevin Cooper, which directs limited retesting of certain physical evidence in the case and appoints a retired judge as a special master to oversee this testing, its scope and protocols.” (See here.)]

[December 26 update: The court’s letters to Governor Brown regarding the nine most recent clemency recommendation requests are here.]