04/27/2021--When Governor Gavin Newsom imposed a moratorium on executions in California two years ago, an Associated Press article reported that he might also later commute death sentences. Although the moratorium can be reversed by Newsom or a successor, commuting death sentences would permanently end the possibility of capital punishment for those inmates who are granted clemency. But Newsom can’t empty California’s death row unilaterally. The Supreme Court is a check on that power — both under the state constitution and, apparently, because of a condition Newsom established himself. The state constitution requires a court recommendation before a governor can commute a sentence of, or pardon, any person who has been “twice convicted of a felony,” which the AP article said included “more than half of condemned inmates.” The court has so far not rejected any Newsom clemency grants, signing off on 20 of them, including one — commutation of a life-without-parole sentence — just last week. None of the 20 has involved a death sentence, however. In addition to the constitutional requirement, Newsom suggested he would not even ask the court for permission to commute any death sentences until the court first clarifies its standard of review in clemency matters. The 2019 article said that Newsom was “considering commuting death sentences as ‘a next step’ once state Supreme Court justices explain why they blocked 10 non-death commutations sought by former Gov. Jerry Brown” in 2018. To date, the court has not explained why it rejected 10 of Brown’s requests for clemency recommendations while approving numerous others. Before those negative actions, the court issued a detailed order generally describing the scope of its role in the clemency process (Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897), but how the 10 unsuccessful requests failed to conform to the principles stated in the order remains a mystery. Newsom’s office declined to comment on whether he is still waiting for further elucidation from the court before moving to commute any death sentences, even those commutations for which he doesn’t need court approval, i.e., for condemned prisoners who have not been convicted of multiple felonies. But it’s possible that the court’s silence remains an obstacle.
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