Jason Marks writes in a Daily Journal column about an obstacle to Governor Gavin Newsom commuting all California death sentences — the California Constitution provides a governor cannot grant clemency to anyone who has been “twice convicted of a felony” except “on recommendation of the Supreme Court, 4 judges concurring” (here). Marks — a retired Supreme Court research attorney — says that, although the court “has never had to consider a blanket commutation, . . . the court — applying its own criteria, set out in a 2018 published order [Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897] — should approve a mass commutation of sentences for twice-convicted felons.” (Link added.)

The court’s criteria is one of deference to a governor. Clemency “is an executive power, and its exercise often, and permissibly, rests on extrajudicial considerations,” the court said. (Procedures, 4 Cal.5th at p. 897.) Thus, the court concluded 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.” (Ibid.)

The Daily Journal column says Newsom believes there are “serious systemic flaws in California’s death penalty system.” It then argues, “One need not fully embrace the Governor’s critique, or believe that every death sentence is undeserved, to see that it would be a legitimate use of the clemency power to extend limited mercy — a reduction to life in prison — to those whom an imperfect system has condemned to die.”

There’s one additional Supreme Court obstacle to a mass commutation that is not mentioned in the column. Soon after Newsom imposed a temporary moratorium on executions in California in 2019, something he could do without Supreme Court approval, an Associated Press article reported he was “considering commuting death sentences as ‘a next step’ once state Supreme Court justices explain why they blocked 10 non-death commutations sought by former Gov. Jerry Brown” in 2018.  (Link added.) So far, the court has not issued any explanation.

We’ve written about the possibility of gubernatorial action to empty California’s death row: “The Supreme Court’s part in any possible commutation of all California death sentences,” “ ‘Commute them all,’ ” and related blog posts listed there.