A prisoner whom the Supreme Court three years ago blocked from having his sentence commuted is making a second go at it. Or, rather, a different governor is making a second request on his behalf.

In 2018, then-Governor Jerry Brown asked the court for permission to commute Howard Ford’s sentence of life without parole plus 13 years for murder, robbery, and firearm and prior felony enhancements. A Governor is constitutionally required to get the court’s recommendation before he can grant clemency to anyone, like Ford, who has been “twice convicted of a felony.”

Ford’s was one of 10 Brown recommendation requests that the court turned down without explanation. (See here and here.) Under the deferential standard of review announced by the court (see here and here), the denials were essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.

The court’s negative vote on the Ford request was likely 4-3. There was then a vacancy on the court and, although only Justice Goodwin Liu publicly dissented, a pro tem justice was assigned to the matter, indicating the six permanent justices were evenly divided and needed a temporary justice to be the tie breaker. (See here.)

After Brown left office, Justice Liu issued a separate statement when the court granted Governor Gavin Newsom’s first clemency recommendation request. In the statement, Liu noted that “[s]ome instances of renewed application appear in the historical records of our clemency docket, publicly accessible in this court.” He also asked these questions: “in what circumstances may the Governor submit a renewed application on behalf of an individual for whom the court previously declined to issue a favorable recommendation?  And what standards should guide this court’s evaluation of any such submission?”

Those questions apparently left the realm of the hypothetical when Newsom in October asked the court for permission to commute Ford’s sentence, which would make Ford eligible for a parole suitability hearing.

Consideration of the Ford request has been delayed because, in response to a third-party motion to unseal the clemency record, the court on December 1 sent the record back to Newsom with instructions to resubmit it and justify keeping parts of it confidential. (See here.) On December 30, Newsom filed a motion to seal the record and filed a proposed redacted and unredacted record on January 5.