For a second time, the Supreme Court has granted a request by Governor Gavin Newsom for permission to commute a life-without-parole sentence after it had turned down a request by then-Governor Jerry Brown for the same person.

The court today recommended clemency for Elaine Wong, who is serving a 1981 sentence of life without parole plus 17 years for first degree murder, two counts of attempted murder, assault with intent to commit murder, and robbery with sentence enhancements. In December 2018, with Justice Goodwin Liu recording a dissenting vote, the court declined to recommend a Wong commutation.

Last year, the court similarly allowed Newsom to commute the LWOP sentence of Howard Ford even though it said “no” when Brown had asked.

A governor is constitutionally required to get the court’s recommendation before granting clemency to anyone, like Wong and Ford, who has been “twice convicted of a felony.” The court has said it reviews clemency recommendation requests under a deferential standard. (See here and here.) The denial of a request implies that a clemency grant would be an abuse of power.

Justices Joshua Groban and Kelli Evans were recused from passing on today’s order, likely because they served as legal advisors to Brown and Newsom, respectively, before joining the court.

It’s been nearly 100 years since the court has explained a ruling on a clemency recommendation request (In re Billings (1930) 210 Cal. 669), so it’s unclear why Newsom was successful for Wong and Ford when Brown wasn’t. Here’s some speculation, however: Newsom’s requests to the court said that he was “contemplating [the] commutation[s] of sentence[s] . . . would make [Wong and Ford] eligible for . . . parole suitability hearing[s],” not that he would require their releases. (Related:  “Newsom grants clemency, but freedom isn’t certain”.) Brown’s cover letters didn’t include that language. It’s possible that potential parole releases after parole board hearings are more palatable to the court than possible unconditional releases by gubernatorial order.

Newsom has a nearly perfect record on clemency requests — he withdrew one before a ruling, but the court has approved all 59 of his other requests. That’s better than Brown, who had the court without explanation block 10 intended clemency grants, including for Wong and Ford.

[August 17 update: a loyal reader points out that the court has not approved all of Newsom’s clemency recommendation requests (other than the one that was withdrawn), at least not yet. There are still two requests pending rulings.]

Including today’s action, the court has granted Newsom approval to commute 12 life-without-parole sentences. He has not sought clemency for any death row inmates.


Justice Liu invites resubmission of clemency requests that the Supreme Court rejected

Motions fail to pry loose Supreme Court’s clemency denial reasons

LWOP clemency file in line to be partially opened

Supreme Court keeps parts of clemency records sealed