Governor Newsom today announced his commutation of all 548 California death sentences to life without parole. Calling it a “righteous action,” Newsom cites in a three-page letter to “All Californians” a reliance on “core values” of “justice and human decency,” and states his belief that “state-sanctioned killing is incompatible with California’s values, undermines the foundations of our legal system, and diminishes each of us.” He says that the death row inmates “will die in prison but not by our hand.”
But many — indeed most — of the commutations cannot be accomplished without Supreme Court approval. The California Constitution (article V, section 8) requires a “recommendation of the Supreme Court, 4 judges concurring,” before a governor can grant a pardon to, or commute a sentence of, anyone who has been “twice convicted of a felony.”
In a separate letter to the court, Newsom asks for a recommendation allowing him to commute the sentences of the 382 multiple-felony condemned prisoners contained on an accompanying 20-page list. That’s 70 percent of the death row population.
Prior to today’s action, it was unclear how the Supreme Court would rule on a request to allow commutations of hundreds of death sentences. Would the justices review the different circumstances of each inmate or evaluate the propriety of only a single blanket commutation?
Well, it’s still unclear how the court will act, but it is known that the Governor wants only a wholesale recommendation. An explanatory statement attached to his letter to the court says Newsom “did not consider information about [the prisoner’s] individual circumstances, apart from the facts that a death sentence was imposed in their cases and they have more than one felony conviction.” And Newsom asks the court to rule “by the end of this year so that I may act before the end of my term,” which expires in 60 days. Court review of 382 separate cases in such a short time would likely be prohibitive.
Also, the court has docketed the Governor’s submission as “Request re: Commutation of death sentences.” So, it’s highly unlikely that the court will issue 382 separate rulings.
The Governor’s announcement letter calls the court’s involvement “a unique inter-branch constitutional process.” He acknowledges that his recommendation request “requires the Justices to participate in a weighty decision they did not choose to take up and with which they may personally disagree.”
During Newsom’s two terms, the court has not declined to issue a single clemency recommendation, approving 117 requests, including 24 for permission to commute life without parole sentences (see recently here). The court applies a self-imposed deferential standard (see here and here), looking to see only whether a clemency grant would be an abuse of power.
Even under that standard, however, the court might find commuting the death penalty sentences would be an abuse of power, and that ruling could be the basis for a separate action to invalidate even the 166 commutations for non-multiple-felony prisoners. The bases for such a decision could be reasons divorced from views about the propriety of the death penalty. Indeed, the Governor’s submission to the court identifies two such possible grounds.
First, the same constitutional provision requiring Supreme Court approval of clemency for multiple felons also says generally that a governor’s clemency powers are “[s]ubject to application procedures provided by statute” and Newsom’s explanatory statement says he “has not reviewed, and will not review, any clemency applications submitted by or on behalf of the intended recipients of this proposed action.” The statement also argues that “[t]he Governor’s authority to grant clemency does not depend on the existence of an application,” but the court might see things differently.
Second, Penal Code sections 4802.5, 4812, and 4813 require the Board of Parole Hearings to investigate and make recommendations on clemency applications. The explanatory statement argues, “there is no statute requiring Board review when the Governor proposes to act on his own initiative without an application. And because none of the intended recipients will be released from custody as a result of this proposed clemency action, the Board’s expertise in assessing current public safety risk for possible release is not implicated by this action.” Again, the court might disagree.
More than two decades ago, the Supreme Court held Newsom exceeded his authority as the then-mayor of San Francisco when he directed the county clerk to issue marriage licenses to same-sex couples. (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.) The decision had nothing to do with whether there should be a right to same-sex marriages. Rather, the court ruled against Newsom because he, as a mayor, couldn’t deem unconstitutional a then-governing statute that barred those marriages. Similarly, the court could now determine that, even if a governor’s commutation of death sentences is not per se an abuse of power, commutations without applications and/or without parole board involvement exceed a governor’s powers.
The Governor’s explanatory statement is essentially a brief in support of his recommendation request. Also, a California deputy solicitor general has submitted a letter saying he will serve as Newsom’s counsel of record in the matter. But it’s uncertain if the court will permit any other input before ruling. In 2023, the court denied a district attorney’s motion to present briefing and argument regarding a gubernatorial request for permission to commute a life without parole sentence. (See here.)
Newsom’s action today raises a number of novel issues for the court to address and relatively little time in which to do it. On top of that, the court is still short-handed because of a vacancy the Governor has neglected to fill for over a year. If a Newsom appointee is not seated before the court rules and if the six current justices are evenly split, a pro tem would probably be selected to cast the deciding vote (see discussion of Howard Ford clemency denial here; see also here). That would not be a good look, to say the least.
Related:
Is the Supreme Court indirectly holding up any attempt to empty California’s death row?
“Blanket commutations and twice-convicted felons”
Governor [Brown] jams the Supreme Court with [20] late clemency recommendation requests
