The Supreme Court today approved three of Governor Newsom’s requests for the court to recommend commutations. A recommendation is a constitutional prerequisite to granting clemency to anyone who has been “twice convicted of a felony.”
One recommendation gives a prisoner a second chance at a second chance. Green lighting a commutation for Kenny Lee, who is serving a life without parole sentence, not only opens up the possibility of a parole, but does so eight years after the court denied then-Governor Jerry Brown’s request to allow him to commute Lee’s sentence. (Justice Liu dissented back then.)
This is the third time the court has recommended a commutation to Newsom after denying a request from Brown. (For the other two, see here and here.) There have been no explanations for the different outcomes, but, at the beginning of Newsom’s term, Justice Liu did invite resubmission of previously rejected clemency recommendation requests.
The three commutation recommendation recipients, and their criminal histories as reported in the Governor’s requests, are:
Kenny Lee: “In 2000, Mr. Lee was convicted of first degree murder. He was sentenced to a prison term of life without the possibility of parole. In 1991, Mr. Lee sustained a felony conviction for assault with a firearm.”
Nelson McVay (AKA Marquette Shelton): “In 2009, Mr. McVay was convicted of attempted murder. He was sentenced to a prison term of 50 years to life. In 1995, Mr. McVay sustained prior felony convictions for aggravated robbery and kidnapping, and vehicle burglary.”
Robert Perry: “In 2015, Mr. Perry was convicted of carjacking, criminal threats, and dissuading a witness. He was sentenced to a prison term of 38 years. In 1994, Mr. Perry sustained a prior felony conviction for distribution of cocaine.”
The commutations won’t lead to Lee’s — or McVay’s or Perry’s — release, at least not right away. Rather, the Governor told the court in his recommendation requests that he “is contemplating a commutation of sentence that would make Mr. Lee eligible for a parole suitability hearing” and, for the other two, that he “is contemplating . . . commutation[s] . . . that would make [them] eligible for . . . earlier parole suitability hearing[s].” (Emphasis added.) (Related: “Newsom grants clemency, but freedom isn’t certain”.) The court’s recommendation letters in the past have typically quoted the Governor’s contemplation, suggesting the court might not have gone along with the commutations if it meant the prisoners would immediately walk free.
The Governor’s requests also reported that the Board of Parole Hearings had previously made “favorable recommendation[s]” to Newsom for the commutations.
Including today’s ruling, the court has now approved 22 Newsom requests for commutations of LWOP sentences. He has not sought clemency for any death row inmates. (See here.)
Overall, Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 109 of his other requests. (Not counting 15 requests that are still pending, including six more LWOP commutation requests.) That’s better than former Governor 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.
In August, the court made public a redacted version of Lee’s clemency file after the San Bernardino District Attorney’s office moved to unseal the file. No part of the file would have been available absent the motion. (See here and here.) No unseal motions were made regarding McVay’s or Perry’s files.
