Calling for “a greater degree of transparency” in California’s clemency process, the Los Angeles Times editorializes today (in the print edition: “A balanced power to pardon“) that Governor Jerry Brown’s many pardons and commutations plus the Supreme Court’s refusal to allow seven additional ones (see here, here, and here) “appear to demonstrate a functioning system of checks and balances.”
The paper offers an important caveat, however: “The justices issued their rejections without public explanation, leaving no guidance to future courts or governors.” A detailed order nine months ago described the court’s limited constitutional role in reviewing certain gubernatorial pardon and commutation decisions, but, by not explaining their reasons for blocking some clemency grants and not others, the justices “left their check on the governor’s power partially undefined,” the editorial says.
There doesn’t seem to be anything to stop the court from still publicly stating its reasons for blocking seven of Governor Brown’s intended acts of clemency. The State constitution, and rules adopted by the court itself, give the court broad authority to publish its opinions. If the court could publish its order explaining in general its clemency recommendation powers (Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897), then the court should be able to also publish an explanation of its use of those powers in specific cases. Doing so would probably reveal the justices’ clemency votes, which, under a newly announced practice, are now disclosed only at the option of each individual justice, but that would be a good thing, too.