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Calif. grapples with historic clemency rejections

The court has approved 86 clemency applications over the past eight years

Alexei Koseff
The Sacramento Bee

Joe Hernandez found out that the California Supreme Court had rejected his commutation request late last month during a phone call with his wife, when she checked the online docket for his case.

The two talk daily while Hernandez, 47, serves a life sentence without the possibility of parole, plus another 46 years to life, for two murders he committed in 1993. As a young gangster in El Monte, Hernandez killed a rival gang member one night, then shot two other men whom he mistakenly believed were part of a rival gang. One survived.

During more than 25 years in prison, Hernandez said he has come to terms with how “self-centered” his behavior was and begun using his “tragedies to help people,” including founding a youth diversion program and training service dogs.

So when he applied for clemency last year, it was flagged by the governor’s office, which noted Hernandez’s clean disciplinary record, participation in self-help classes and positive ratings from supervisors in his work as a caregiver for other inmates. Despite opposition from the Los Angeles County District Attorney’s Office, the Board of Parole Hearings recommended in October that then-Gov. Jerry Brown grant a commutation, which would shorten Hernandez’s sentence and eventually allow him to seek parole.

His family was already planning for the possibility when, on Dec. 21, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation.

“It was like a ton of bricks crushed me,” Hernandez said in a phone interview. “I didn’t know what to say. This was our first real hope after 25 years.”

Hernandez’s was one of ten clemency actions blocked by the court in the final weeks of the Brown administration, the first time since 1930 that it has rejected pardon or commutation requests under consideration by a governor.

The move stunned observers of the California Supreme Court, which under the state constitution must review clemency requests for anyone convicted of felony more than once, and has left them grasping for answers about how to proceed. The court approved 86 other applications over the past eight years.

Gavin Newsom’s new responsibility

Even Brown seemed to be unsure what to make of the rejections. He granted a historic 1,332 pardons and 283 commutations during his final two terms, part of a broader push to scale back the state’s tough-on-crime approach that began under his first governorship.

“Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is,” Brown told reporters in early January, shortly before he left office.

That leaves new Gov. Gavin Newsom, a fellow Democrat, to puzzle through the court’s position as he considers whether to continue Brown’s powerful embrace of executive clemency.

“The weight of that is pretty heavy,” Newsom said at a benefit concert on Sunday before his inauguration. “The governor looks at dozens of those every single week. There’s a binder. Quite literally, every time I see him, he shows me the binder and he says, ‘This is one of the most important jobs that you will have.’”

The court wrote an administrative order in March about its role in evaluating pardon and commutation applications that stated it was not acting on the merits of the cases but rather to determine whether granting clemency would be an “abuse of power” by the governor.

Nevertheless, it’s no more clear now to experts what that boundary might be.

David Ettinger, an appellate lawyer who writes a blog about the California Supreme Court called At the Lectern, said that from the information publicly available about the rejected cases, he couldn’t distinguish them from “a significant number of other life without parole commutations that the Supreme Court signed off on. I just don’t know.”

“There’s really no guidance for future courts, for future clemency requests, for future governors making requests, as to why certain ones might get blocked and certain ones won’t,” he said. “It is a problem for future courts and future governors, how to apply this general ‘abuse of power’ standard to specific cases.”

‘A very high bar’ for clemency

Kate Chatfield, policy director for Re:store Justice, a criminal justice nonprofit, has assisted two clients with commutation applications. She said the court’s action was unlikely to change the work of lawyers in her field or the desire of inmates to seek clemency. But she was concerned about the Supreme Court’s standard, and how to address it, if it is not a review of the merits of a case.

“It’s a very high bar and it’s a very select few that even get there. So to even make it that far, that person must have done an incredible amount of rehabilitative work, for the governor to take notice,” she said.

Santa Clara County District Attorney Jeff Rosen would also like more guidance from the court, which he said could help prosecutors focus their arguments in cases they oppose.

His office weighs in on every clemency request that the governor is considering for a case they prosecuted, some of which have also been reviewed by the Supreme Court. He said his team determines a position by looking at criteria like the underlying crime, how the perpetrator has behaved in prison and the wishes of the victim’s family, a particularly important factor in murder cases.

“The thing about governors and clemency is it’s a very powerful tool that does not have a lot of checks on it,” Rosen said. “I believe that the governor would want all of the relevant information to make the decision.”

He recently opposed the pardon of Borey Ai, whose application was among the ten rejected by the Supreme Court. Ai, a Cambodian refugee who shot and killed the owner of a liquor store during an attempted robbery when he was 14, was released on parole in 2016 and sought a pardon to avoid deportation. Rosen’s office argued that Ai had downplayed the severity of his crime and noted that the victim’s family ardently opposed clemency.

“A lot of people and institutions in our county have spent considerable resources to prosecute this person,” Rosen said, “and that should not be lightly overturned or changed.”

Jerry Brown’s office sealed records

A court representative said the justices are not planning to provide any further clarification on their position. But the public could get more answers if the court agrees to open up clemency files, which are automatically sealed by the governor’s office.

The First Amendment Coalition, a nonprofit that advocates for free speech and open government, made a motion last month to unseal five of the commutation files reviewed by the Supreme Court. Legal fellow Glen Smith said the public deserves to understand more about the governor’s process for reviewing these cases, which were prosecuted in public trials.

“Why were these individuals deserving of leniency, especially given the severity of their crimes?” he said.

The governor’s office opposed the requests, arguing that the information in the commutation files is “too sensitive.” It contends that the governor’s deliberative process should be protected and that allowing access to files like the parole board investigation might make witnesses more reluctant to participate.

Smith said the First Amendment Coalition was willing to have a discussion about which records should be protected, but that the process has become “too automatic.” He points to the case of Rod Wright, the former Democratic lawmaker who resigned in 2014 after he was convicted of felony charges related to living outside the district where he ran for office.

Brown pardoned Wright in November and, after another motion by the First Amendment Coalition, his office released part of the clemency file this month because of “special public interest” in the case. While some documents, such as emails between the governor’s office and the parole board and the pardon investigation report, remain redacted pending further court proceedings, others that were released were already publicly available, including Wright’s pardon application and his court appeal.

“Why did anyone think this had to be sealed to begin with?” Smith said. “They’re just painting with too broad a brush.”

Hernandez said he was initially hurt and confused by the rejection of his clemency application, which made him second-guess his progress. Now he feels that he was a “political casualty” in the Supreme Court’s process. He’d like to seek clemency again, though he’s not sure what he could do differently a second time.

“I killed two people, so I don’t deserve it. What I’m asking for is another chance,” he said. “I want to be able to show the love and compassion that I have.”

On Wednesday, Hernandez received a formal notice from the governor’s office about the court’s decision. It encouraged him “not to lose hope.”

“It is my sincere hope that you can earn the recommendation of the Supreme Court if you file another clemency application with Gov. Newsom after doing further work that shows your ongoing commitment to transformation,” reads the letter from Deputy Legal Affairs Secretary Kristina Lindquist.


©2019 The Sacramento Bee (Sacramento, Calif.)