With little time left to act before Governor Jerry Brown’s term ends, the Supreme Court still has pending 17 requests by Brown for recommendations for pardons or commutations. The court’s recommendations are constitutional prerequisites to the Governor granting clemency, because the 17 are twice-convicted felons.
At least three of the 17 requests might be taking longer than normal because the court’s six permanent justices are apparently split on whether or not to recommend clemency. For each of those three — concerning Dean Jacobs, Huey Ferguson, and Howard Ford, all serving life-without-parole murder sentences — a Court of Appeal justice has been appointed to serve temporarily. According to the Supreme Court’s internal practices and procedures, a pro tem is called in only when “four justices cannot agree on a disposition.”
Those three are not the only clemency recommendation requests for which a pro tem justice was appointed. Court of Appeal justices participated in at least two previous matters, one in which clemency was recommended (Brandita Taliano) and one in which the court made the rare decision to block a commutation (Richard Barnfield).
It is an institutional problem when a pro tem casts a deciding vote in a matter (also here), because the outcome is determined by the random assignment of a temporary justice. Because the court has not been disclosing it votes on clemency recommendation requests (let alone its reasoning), we don’t know for certain whether the Taliano and Barnfield clemency decisions were made by a bare 4-justice majority that included a pro tem. But, given the court’s internal practices and procedures on pro tem assignments, it’s a good bet that they were.
