4 Cal. 5th 897
Cal.2018Background
- Article V, §8 of the California Constitution bars the Governor from granting a pardon or commutation to a person twice convicted of a felony except on recommendation of a majority of the California Supreme Court (4 judges concurring).
- Statutory procedure: twice-convicted applicants apply to the Governor; Governor forwards to Board of Parole Hearings for investigation and recommendation; favorable (or forwarded) applications go to the Supreme Court for the Court’s recommendation.
- Historically clemency is an executive power grounded in the royal prerogative and typically allows the executive to consider extrajudicial factors, including mercy.
- The 1878–79 constitutional convention added the Court-recommendation requirement to check potential abuse, influence, or corruption in gubernatorial pardons for repeat felons; delegates intended the Court to act as a restraint, not to supplant the Governor’s clemency discretion.
- The Court’s past practice varied: In re Billings (1930) exemplified an extraordinary, merits-focused investigation by the Court; later practice retreated from that approach as inconsistent with separation of powers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper judicial role under Art. V, §8 — substantive mercy vs. judicial check | Applicant (or pro-recommendation view): Court may examine merits (innocence, rehabilitation) and recommend based on substantive evaluation | Court/State: Article V, §8 does not make Court a co-executor of clemency; Court’s role is to ensure executive power won’t be abused | Court holds its role is judicial and limited: determine whether claim has sufficient support so Governor’s clemency would not be an abuse of power |
| Whether the Court must conduct extensive merits investigations (as in Billings) | Billings majority: Court can and should investigate merits, including evidence of innocence, before recommending | Historical/separation-of-powers view: such investigations exceed Court’s proper role and intrude on executive discretion | Court rejects routine extensive investigations; Billings-style probing is inconsistent with the proper limited role |
| Effect of constitutional history (delegates’ intent) | Proponents of Court involvement argued for a check to prevent political pressure/corruption | Opponents warned against making Court the pardoning power; framers intended a check, not replacement | Court reads convention history as supporting a limited judicial-check function, not substantive clemency decisionmaking |
| Form and meaning of Court’s recommendation to Governor | Past form: explicit ‘‘recommend that the application [not] be granted’’ implying a merits recommendation | Court now: should clarify recommendation is not an instruction to grant clemency but that the Governor may legitimately consider it | Court revises standard letter to state the Court "makes/declines to make the recommendation required by article V, section 8" (4 judges concurring) |
Key Cases Cited
- Ex parte Grossman, 267 U.S. 87 (1925) (discusses clemency as a traditional executive prerogative to ameliorate harshness and correct mistakes)
- Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) (plurality opinion recognizing clemency as a matter of executive grace allowing broad, extrajudicial considerations)
- In re Billings, 210 Cal. 669 (1930) (California Supreme Court’s prior instance of extensive merits investigation and explanation in a pardon application; discussed and limited here)