When Governor Gavin Newsom asked the Supreme Court last week to allow him to pardon Thear Sam, Newsom noted that Sam’s application to him sought relief “to avoid severe collateral consequences of conviction, specifically deportation and permanent family separation.”
During his governorship, Newsom has already unilaterally pardoned three people who were facing deportation. (See here and here.) But the state constitution requires he get the approval of a majority of the court to pardon Sam because Sam is a twice-convicted felon.
Late last year, the court refused to sign off on a pardon that Governor Jerry Brown wanted to grant to Borey Ai, a Cambodian refugee who murdered as a teenager and was subject to deportation. (See here, here, and here.) The court gave no reason for the denial (see here), but, earlier in the year, it had said generally that it would be deferential to the governor’s choices and block clemency only when it detected “an abuse of [the clemency] power.”
Because the court’s most recent clemency denials have all been unexplained — there were nine denials in 2018 besides Ai’s — it is unclear whether the court categorically believes that a governor abuses his or her power by using a pardon to prevent deportation. How the court deals with Sam’s pardon request might shed some light on the question.
