By Selina MacLaren and Thomas R. Burke
Pro bono counsel to the First Amendment Coalition
The California Supreme Court recently announced a rule change to make it easier for the public to view clemency files for twice-convicted felons. The new rule rejects the governor’s decades-old practice of automatically sealing clemency files, but places the onus on the public to move for unsealing.
“The public now has a clearer process for ensuring transparency in clemency proceedings, which is crucial given the extraordinary gubernatorial power at issue,” said David Snyder, executive director of the First Amendment Coalition. “The public has a right, and indeed a need, to understand this process — and a right to do so by looking at the documents themselves.”
A quirk of the California Constitution requires the governor to get state Supreme Court approval before pardoning or commuting the sentence of any person who has been convicted of two or more felonies. Cal. Const. Article V Section 8. That applies to more than half of all condemned inmates. See “California’s new governor may commute death sentences,” Associated Press (March 13, 2019). Under some governors — such as former Gov. Jerry Brown, who granted a historic 1,332 pardons and 283 commutations in his final two terms — the review of clemency files can be a significant part of the Supreme Court’s duties, and until now, conducted entirely in secret.
Governors satisfy the oversight requirement by submitting a clemency file, often hundreds of pages long, to the Supreme Court. The file may contain the applicant’s prison records, a recommendation from the Board of Parole Hearings, and letters of support from the community.Related articles:
- Op-ed: Gov. Newsom Should Commit to Transparency in Clemency Process (David Snyder, Sacramento Bee)
- Gov. Jerry Brown’s Pardon of Former State Senator Was Opposed by Prosecutors, New Records Show (LA Times)
- Justices Order Sunlight on Clemency Process (Courthouse News)
Historically, this entire file was automatically kept under seal, creating a de facto “secret docket” at the state’s highest court. Aside from a brief summary posted on the Supreme Court’s docket (Miller (Johnny Al) on Clemency, S245386), and limited information the governor reports to the Legislature, the public was left in the dark about the reasons for the extraordinary exercise of executive power and the judicial review process. Moreover, once approved, the entire file is returned to the governor’s office. The governor steadfastly refused to release any clemency files submitted to the Supreme Court in response to public records requests.
Before 2018, approval by the California Supreme Court was effectively a formality: The Supreme Court had not denied a single request since 1930. But in the final months of Gov. Brown’s tenure, the Supreme Court denied 10 requests, baffling judicial observers.
The Supreme Court had clarified earlier that year that it does not view its role as a granter of clemency — indeed, by the time a clemency request arrives at the courthouse, it has already been vetted by both the Board of Parole Hearings and the governor’s office. The purpose of the constitutional requirement, said the court, is to “provide a check on potential abuses of the power conferred on the executive.” Admin. Order 2018-03-28.
The 10 rejections thus suggest that the Supreme Court determined Brown had abused his power. But because of the categorical secrecy for clemency files, the details remain unknown.
The unique court oversight requirement for clemency in California stems from the 1878-1879 constitutional delegation, where delegates observed that “generally pardons are granted through pressure brought to bear upon the Chief Executive by reason of great political influence or the influence of friends.” Id. These so-called “political pardons” remain a reality, notwithstanding the constitutional check.
For example, on his last evening in office, then-Gov. Arnold Schwarzenegger commuted the sentence of Esteben Nuñez, the son of his political ally, who had pleaded guilty to taking part in the fatal stabbing of a college student. About the decision, Schwarzenegger told Newsweek in an interview, “Well, hello! I mean, of course you help a friend.”
Seven years later, Democratic Assembly Speaker Anthony Rendon handed then-Gov. Jerry Brown a petition seeking a commutation of his brother-in-law’s sentence in connection with the 2003 murder of a 19-year-old. Ten months later, the clemency request was granted.
These political pardons involved individuals convicted of only one felony, and thus required nothing more than gubernatorial approval.
The Case of Rod Wright
In 2018, Brown sought to pardon former state legislator Rod Wright. Wright was convicted in 1972 for felony auto theft, and again in 2014 for charges related to living outside his elected district. Wright was sentenced to 90 days in jail for his 2014 conviction, but served about 90 minutes.
Because of the dual convictions, Brown needed a recommendation from the Supreme Court. The summary on the public docket (Wright (Roderick Devon) on Clemency, S251879) explained that Wright’s convictions were for nonviolent crimes, and emphasized his public service. It also described changes in the law following Wright’s second conviction that would have made his conduct permissible. It made no mention of support or opposition from political figures, or how Wright got Brown to consider his request — information necessary to ascertain cronyism.
Aside from this summary, the public was not given access to any of the materials considered by the Supreme Court, including Wright’s “Direct Application” for clemency, the Board of Parole Hearings recommendation, criminal records, and letters of support and opposition. The entire file — later revealed to be nearly 300 pages long — was entirely under seal.
On Nov. 20, 2018, two things happened: The Supreme Court granted Wright’s clemency recommendation, and First Amendment Coalition (who the authors represent) moved to unseal the file. (Read: FAC petition, the memorandum in support of petition and declaration in support of petition.)
The California Rules of Court enumerate specific requirements for filing court records under seal. Under these rules, sealing is appropriate only to the extent necessary to protect an “overriding interest” that cannot be protected any other way. Cal. Rules of Court, Rule 2.550. In addition, the common law and Article 1, Section 3(b)(1) of the California Constitution also mandate public access to judicial records. FAC argued that these rules should apply to clemency records, just as they apply to other records submitted to a California court.
The day after the motion was filed, the Supreme Court ordered the governor to respond by identifying “[a]ny and all portion(s) of the file claimed to be confidential,” and the legal bases for such a claim of confidentiality.
Rather than identify confidential portions, however, the governor broadly opposed FAC’s motion. “There are no standards governing the exercise of the Governor’s clemency authority,” the governor argued, and therefore clemency files are outside the ambit of the Court’s access rules. (Read: Governor’s opposition, and declarations in support of opposition here and here.)
The Supreme Court sided with FAC, ordering the governor to resubmit the clemency file “in the manner prescribed by Rules 8.45, 8.46 and 8.47 of the California Rules of Court.”
The governor then moved to keep about 20 pages under seal, arguing that the public should not have access to Wright’s criminal history information, pardon investigation report, and probation report. The Supreme Court disagreed and again ordered the governor to file all the clemency materials publicly, with limited redactions only for “specific personal information and attorney communications contained within the records.”
Five months after the governor submitted Wright’s clemency file to the Supreme Court, it was fully released to the public. These records shed light on critical aspects of the pardon, including the Board of Parole Hearings investigation that determined Wright deserves clemency, statements of support from several “prominent political leaders,” as well as an opposition from the district attorney who prosecuted Wright’s voting fraud case.
The Saga Continues
In the Wright matter, the Supreme Court clarified three separate times that California’s access rules apply to clemency files. Yet Gov. Brown — and then Gov. Gavin Newsom — continued to file all clemency files under seal.
From December 2018 to May 2020, FAC filed seven more motions to unseal. Each time, the governor (represented by the attorney general’s office) opposed, asserting the same argument: Clemency files are special because of the sweeping powers of the executive, and are protected from disclosure by authorities such as the right to privacy, the Public Records Act, and the court’s own Internal Operating Practices and Procedures, which “permit the Governor to forward entire clemency materials to the Court for review, without redaction, to preserve their confidentiality.”
Each time, the Supreme Court repeated its holding in the Wright matter and ordered the governor to re-submit the file. The governor would then move to seal broad categories within the clemency file; FAC would oppose; the court would reject the governor’s arguments and limit redactions to private or privileged information. Throughout the process, the governor sought repeated extensions of time. In one set of cases, for instance, the governor requested five extensions on briefing and production deadlines. The court granted them all.
Eventually, FAC requested a global order that would apply to all clemency matters going forward, and sanctions for the governor’s “unreasonable violation” of court rules despite multiple rulings by the Supreme Court. The court denied sanctions but implemented the rule change.
A New Rule
In November 2020, the state Supreme Court issued a proposed rule change and request for comment. The new rule — adopted on May 26, 2021 — clarifies that the court will no longer categorically treat clemency files as confidential. Admin. Order 2021-05-26. Instead, when a member of the public submits a motion to unseal, the governor must resubmit the file in conformity with the court’s access rules.
The new rule provides clarity, and removes one of the primary authorities the governor relied on to justify nondisclosure. But it is not without its critics.
On the one hand, groups like the California News Publishers Association, the Reporters Committee for Freedom of the Press, and FAC criticized the rule for requiring a member of the public to affirmatively file a motion to unseal. (Read: FAC’s full statement on the proposed rule.)
In addition, the Supreme Court will not entertain motions filed after the recommendation is granted. Because this process can take any length of time (three to four months is typical), the public must file motions in a rush.
On the other side, groups such as the A New Way of Life Reentry Project and the Post-Conviction Justice Project emphasized that clemency files can contain sensitive records — including medical evaluations, documentation of abuse, and statements on childhood trauma — that, if disclosed, can hamper an applicant’s successful reintegration into society. The Supreme Court’s response to these concerns was to allow for case-by-case redactions, but it rejected “a rigid rule shielding from public inspection” entire categories of documents.
On July 7, 2020 — after 2.5 years of litigation — the governor released over a thousand clemency records. These records just scratch the surface. A multitude of clemency files have been filed — and continue to be filed — under seal.
With a little legwork, judicial observers can now learn more about what it takes to get a pardon or commutation by monitoring the Supreme Court’s docket, and submitting motions to unseal. Transparency may improve the odds for those seeking clemency and reduce the likelihood of abusive, unwarranted political pardons. The public may learn whether the 10 applications rejected in the final months of Brown’s tenure evinced an abuse of gubernatorial power.
Clemency plays an important role in incentivizing rehabilitation, facilitating reentry after incarceration, and addressing overcrowding in prisons. Most importantly, clemency promotes a value that is “peculiarly the province of the executive.” Admin Order 2018-03-28. Mercy without clarity, however, is a mercy accessible to only the few.
Selina MacLaren and Thomas R. Burke are attorneys at Davis Wright Tremaine LLP . They are pro bono counsel to the First Amendment Coalition in these matters before the California Supreme Court. Burke also serves on FAC’s board of directors.