Governor Gavin Newsom has asked the Supreme Court to approve a posthumous pardon for Richard Penry. A court recommendation is constitutionally required before a governor can grant clemency to anyone who has been “twice convicted of a felony.” (The request was made three weeks ago, but only today appeared on the court’s docket.)
Penry received the nation’s highest military accolade, the Medal of Honor, for his heroics in 1970 during the Vietnam War. He died in 1994 at age 45. (See also Andrew Graham’s report for The Press Democrat.)
The letter to the court from Newsom’s Deputy Legal Affairs Secretary relates that Penry was convicted in 1974 for transporting or sale of a controlled substance and then again in 1984, in federal court. It also says, “After his military service, Sgt. Penry returned to California at a time when there were few resources for veterans. Like many other veterans, Sgt. Penry struggled with reentry to civilian life. He self-medicated to manage his untreated Post-Traumatic Stress Disorder, which was the context for his convictions.”
The court has said it reviews clemency recommendation requests under a deferential standard. (See here and here.) And Newsom has a nearly perfect record — he withdrew one request before a ruling, but the court has approved all 70 of his other requests. That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.
The Governor’s request was filed under seal. It will remain shielded from the public unless someone moves to unseal the records. If a motion is filed, which seems unlikely, the court would probably require Newsom to justify keeping all or part of the records under wraps and would then probably make redacted records available for viewing. (See here and here.)
