In December 2018, a divided Supreme Court blocked then-Governor Jerry Brown from commuting the life without parole sentence of Kenny Lee. (See here.) Today, the court denied as untimely a motion Lee filed four months ago to unseal the record regarding Brown’s unsuccessful request that he be permitted to grant clemency to Lee. Justice Joshua Groban, who was a senior Brown advisor before joining the court, was recused from ruling on the motion.
The state constitution requires a governor to get an affirmative court recommendation before granting a pardon to, or commuting the sentence of, anyone who, like Lee, has been “twice convicted of a felony.”
The negative 2018 action on the clemency recommendation request for Lee was one of 10 denials at the end of Brown’s governorship. The denials in effect were determinations that granting clemency would have been abuses of Brown’s power. Justice Goodwin Liu noted a dissent from the Lee denial and some others.
The court did not explain its denials, leaving a perplexed Brown to remark, “Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is.” The court has been criticized for leaving governors, prisoners seeking clemency, and the public in the dark.
In 2021, the court adopted a policy regarding the sealing of its clemency files. The files are treated as confidential unless and until someone moves to unseal the files. Only then might the Governor have to show why the files should remain secret. In the past, such motions have led to the partial unsealing of some files. (E.g., here.)
Under the 2021 policy, the court “will not entertain such a motion if filed after a clemency record has been returned to the Governor,” which happens when the court makes an affirmative clemency recommendation. (Pen. Code, section 4852). If, as in Lee’s case, the recommendation is negative, and the court thus retains the record, the court reserves the right to “take into account any delay in presenting a motion.”
Related:
Second time’s the charm for LWOP clemency request
Governor Newsom seeks Supreme Court permission to commute five sentences, including four LWOPs