California’s constitution provides that “[t]he Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.”  Acting in pardon and commutation matters is one of the parts of the Supreme Court’s job description that are not directly case related.

The court makes pardon or commutation recommendations with some regularity.  (See here; see also Governor Jerry Brown’s recent 70 pardons or commutations, some of which were made with the Supreme Court’s assent.)  But the process for making those recommendations has been largely unknown . . . until recently.

Three weeks ago, the court issued a 9-page minute order that “provide[s] a comprehensive explanation of [the court’s] understanding of the nature of [the court’s constitutional] function.”

After reviewing the history of the constitutional provision, the court concluded that its role “is not to express a substantive view on the merits of an application; the court takes no position on whether the Governor should, as an act of mercy or otherwise, extend clemency to a particular applicant.  It is, rather, to perform a more traditional judicial function:  to 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.”  The court also was critical of an earlier opinion — In re Billings (1930) 210 Cal. 669 — in which the court had taken a much more intrusive role in examining the right to a pardon.

[August 13 update:  a recent Supreme Court recommendation letter is here.]