No definitions, no rational standards, and only a single
precedent are provided, but respect is expressed for the executive’s “power to
grant clemency on whatever grounds he or she deems appropriate” and for
separation of powers. The order was created by the court for the court, not the
result of a lawsuit or appeal.
As expected, Gov.Jerry Brown has been more generous with
pardons and commutations in his final year, and for the first time since 1930,
the court has intervened in 10 cases to reject Brown’s decision—or in the
legalese, it “declines to recommend” the actions. If we hold the court to
its own standards in the March order, we must conclude that it found that Gov.
Brown has abused his power. I submit that the justices are abusing their
discretion in a secretive process that leaves the public to speculate about
their motives.
Why, in the most disturbing case, did the court overrule the
governor’s pardon of Borey Ai, who won parole in 2016, and is now subject to
mandatory deportation to Cambodia, the nation his parents fled before he was
born? Why did the court consider Brown’s reduction of sentences — not
immediate releases — for a number of second-degree murder convictions to meet
the vague standard of “abuse of power”? Why did the court OK the pardon
for Rod Wright, the former Democratic state senator convicted for lying about
living in his district? And how do these cases compare to Gov. Arnold
Schwarzenegger’s commutation for the son of former Assembly Speaker Fabian
Nuñez?
The court has agreed to release the sealed documents from
the Wright case, so we can hope to learn more about it. The court should
be fully transparent in all of these cases and articulate clear standards to
the public and clemency petitioners. It must explain exactly what factors
that the governor used to pardon ex-convict Borey Ai that amounted to an abuse
of power, requiring their intervention and essentially deciding in favor of
Ai’s deportation.
Leaving it to legal experts to comment on separation of
powers issues, I do see a major conflict of interest, as the court controls the
broken process that led these convicts to seek clemency in the first
place. We can be sure that almost every one of them has brought numerous
appeals that reached the court, and they went to the governor as a last
resort. Then, at the final stage, the court cherry-picked 10 of them for
rejection with no explanation so far. Did the ghost of Rose Bird provoke the
justices to protect their tough-on-crime image?
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