Pardon Power and Your Right to Know

Transparency in clemency process an important check on governor’s power

Two years ago, a California politician got his criminal conviction basically wiped clean as part of the outgoing governor’s clemency grants. What we learned from that high-profile pardon was that the process surrounding these decisions is highly secretive.

That’s because the court records generated when the governor recommends clemency for those twice convicted of felonies — a specific category of people whose applications are subject to oversight by the California Supreme Court — have been routinely filed in total secrecy.That means documents that would help all of us understand the decision-making of both the governor and our state’s highest court about this important part of the criminal legal system have been totally off limits. 

That is, until this shadowy docket got on FAC’s radar.

Over the course of two years, we filed a series of motions in the California Supreme Court demanding transparency — the same level of transparency required for court records filed in courts across the state. We filed seven motions to unseal, and in each case, the justices sided with us.

The result: The public now has access to the bulk of the records in those seven specific pardon and commutation applications. And after we called attention to this secretive docket, the Supreme Court changed its own administrative operating procedures in a way that should improve access permanently.

Unfortunately, we are not writing today to report a total victory for the public’s right to know. Clemency documents submitted to the court by this and future governors will remain secret unless someone — you, me, or any other member of the public — makes a formal motion to unseal. That’s an unfortunate, and, we think, incorrect, outcome.

The public deserves better.

But this doesn’t have to be the end of the story. Gov. Gavin Newsom and his attorneys in Attorney General Rob Bonta’s office can voluntarily improve public access to this information on their own, as I call on them to do in an op-ed originally published in the Sacramento Bee.

Op-Ed: Governor Should Commit to Transparency in Clemency Process

For more about our multi-year legal battle for better transparency, we recommend this in-depth article by our co-counsel, Selina MacLaren and Thomas R. Burke of Davis Wright Tremaine, whose skilled legal work has shed more sunlight on this process than Californians have ever had.

Obfuscating Mercy: How the California Supreme Court Finally Addressed Secretive Pardons

The point: The individuals selected by Gov. Newsom and his successors may well deserve mercy — this is not our judgment to make — but that doesn’t mean they, and the executive branch, are entitled to total secrecy.

Thank you for your interest in our work. 

David Snyder is executive director of the First Amendment Coalition.