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The California State Constitution empowers Governor Jerry Brown to grant clemency to people incarcerated under sentences of death.

With just over a month left in office, criminal justice reform advocates are hoping that he will use this power to grant as many commutations as possible.

While the Constitution prohibits commutations for incarcerated people with two prior felonies, this only applies to roughly half the people on death row. To commute that group, the governor would need the California Supreme Court’s approval.

Earlier this year, however, the Court issued an administrative order offering more latitude to the governor’s office in determining which cases deserved clemency. Under the old approach, the justices could weigh in with their views on the merits of an individual case for commutation. Under the new order, the justices will only intervene if a commutation request represents an “abuse of power.”

With nearly 750 people, California has the largest death row population in the Western Hemisphere. Nearly 2/3 of death row prisoners are people of color. Nearly 1/2 were teenagers or young adults when they were sentenced to death, even though recent legislation (SB 260, SB 261, and AB 1308) has given rehabilitation and second-chance opportunities to others in this age group who were not sentenced to death. Studies have shown that most people on death row have experienced mental illness, intellectual and developmental disabilities, and the lingering effects of addiction, poverty, and extreme childhood abuse at astonishing rates.

Granting broad clemency to condemned prisoners would not be unprecedented. According to the Death Penalty Information Center, there have been 12 instances of broad death sentence commutations by governors. Moreover, four states currently have moratoria on executions imposed by their governors in recent years.

On Monday, November 19, religious groups submitted 6,000 letters to Governor Brown, calling on him to make broad use of his clemency powers for people on death row. Led by Catholic groups, this effort focused on moral and spiritual arguments.

On Tuesday, November 20, The Marshall Project published an article titled “The Jerry Brown Way of Pardoning,” detailing trends in the governor’s use of pardons and commutations. One significant theme was that, rather than helping political allies or listening to celebrity pressure as President Trump has done, Governor Brown exercises his clemency powers based on what he views as systemic injustices, often announcing them on Catholic holidays in a reflection of his faith and spirituality. Evan Westrup, a spokesperson for Governor Brown, wrote in a statement that, “It’s a recognition that people can, and do, change—even after committing terrible crimes [….] It’s also a recognition of the radical and unprecedented sentencing increases and prison building boom of the 80s and beyond as well as the diminished role of parole as a vital ingredient in California’s system of sentencing and rehabilitative process.”

Death Penalty Focus has also started a petition asking that the governor make broad use of his clemency powers for people on death row. He has just over one month to decide how to use them. We hope he’ll opt for mercy, and cement his legacy as a principled, moral leader.

 

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