The information on this page provides a brief overview of clemency in death penalty cases in California and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information and sources, please see the full California Clemency Memo (March 2017) prepared by the ABA Capital Clemency Resource Initiative.
Article V, section 8 of the California Constitution provides that “[s]ubject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in the case of impeachment.” However, in the case of twice-convicted felons, the governor requires the approval of the state’s Supreme Court in order to grant a pardon or commutation.
The Decision Maker(s)
Subject to the limitation regarding clemency in the case of “twice-convicted felons,” described above, the governor of California has the sole authority to grant commutations in capital cases, although he or she may consult with the Board of Parole Hearings (“BPH”) in coming to a decision. The BPH commenced its operation on July 1, 2005, replacing the Board of Prison Terms. One of the BPH’s present duties is to “investigate and report on all applications for reprieves, pardons, and commutation of sentence.”
The governor appoints 15 commissioners to the BPH, subject to the state Senate’s confirmation. Commissioners are appointed to staggered three-year terms and are eligible for reappointment. California law also requires that “their appointment by the Governor and confirmation by the Senate shall reflect as nearly as possible a cross section of the racial, sexual, economic, and geographic features of the population of the state.” The current commissioners for adult matters feature twelve men and three women. The governor shall designate a chair of the board periodically, but this position is currently vacant. The governor may appoint an executive officer of the board, subject to Senate confirmation, who holds office at the pleasure of the governor. The current executive officer is Jennifer Shaffer.
The BPH is required to investigate and report on all applications referred by the governor and to examine and consider all transcripts of judicial proceedings, affidavits, or other submitted documents. It has the power to employ assistants, take testimony, examine witnesses under oath, and do “any and all things necessary to make a full and complete investigation.” Members of the BPH are authorized to administer oaths. An investigation is typically conducted by the BPH investigation unit, not the commissioners themselves. Note that for twice-convicted felons, the BPH is required to transmit its recommendation in writing to the governor, whereas recommendations given to the governor by the BPH stemming from other applications do not need to be in writing.
Each BPH commissioner is a full-time employee and receives an annual salary provided for by Chapter 6 of Part 1 of Division 3 of Title 2 of the Government Code. A member of the BPH can be removed for misconduct, incompetency or neglect of duty after a full hearing by the Board of Corrections.
How Petitions are Brought
For petitioners, the first step is to complete an application for clemency and a petition, both of which are to be submitted to the Governor’s Office. California guarantees that executive clemency counsel is appointed for each indigent capital appellant, whether through state habeas appointment counsel or federal habeas appointment counsel. (This appointment of counsel is typically conducted through the state court system, rather than through the federal courts, where petitioners in other states more frequently receive clemency counsel). The application asks for the petitioner’s name, date of birth, social security number, prior convictions, a brief description of the circumstances of the crime(s) for which he or she is requesting a pardon or commutation, an explanation of why he or she is requesting a pardon or commutation, and a brief statement of why he or she should be granted a pardon or commutation. The petitioner must then mail the application to the district attorney in the jurisdiction of conviction and sentence for his or her signature, before it is submitted to the governor.
The governor exercises discretion as to which petitions are set for a hearing. If the governor determines a clemency petition should be referred to the BPH for a public hearing and confidential recommendation, the BPH gives notice to all interested parties and conducts a hearing “in a timely manner.” Victims and their loved ones have a right to participate in the clemency hearing. Specifically, victims’ family members are permitted to give statements at the BPH hearing and the district attorney’s office is likely to present victim impact statements as part of their response opposing clemency. Additionally, governors are frequently contacted directly by interested persons during pending clemency petitions, including victim’s families, special interest groups, jurors, corrections officers, among others.
Responding to a Petition
Recent California governors such as Governors Davis and Schwarzenegger have publicly announced the BPH’s recommendations for denying clemency in particular cases that they considered. However, in earlier cases, governors did not state the content of their Boards’ recommendations when they issued clemency decision. While governors are allowed to reveal this information, it is also permissible to keep the BPH’s recommendations—as well as the governor’s own reasons for denying a commutation—confidential.
Current Clemency Decision Maker(s)
Democrat Gavin Newsom is the current governor of California and the current executive decision maker regarding clemency decisions. Governor Newsom received his bachelor’s degree from Santa Clara University in 1989.
Born and raised in San Francisco, Governor Newsom comes from a politically well-connected family. His grandfather was a friend of a California governor in the 1960s, and Newsom’s father served as a California appeals court judge for many years.
Gavin Newsom was elected on November 6, 2018. Newsom advocates for progressive reforms on a wide range of topics including: same sex marriage, gun safety, marijuana, universal health care, access to preschool, technology, criminal justice reform, the minimum wage, and the death penalty. As lieutenant governor, Newsom supported a ballot measure that would repeal the death penalty saying the “criminal justice policy did not deter crime and was fundamentally immoral.”
Governor Newsom signed an executive order on March 13, 2019 putting an executive moratorium on California’s death penalty, thus issuing a reprieve for the many hundreds of individuals on the state’s death row. This executive action was accompanied by the “immediate” closure of the execution chamber at San Quentin State Prison. This moratorium does not mean anyone will be released from prison or have their sentences permanently altered, but rather signals that no executions will take place while Governor Newsom remains governor. Governor Newsom has not commented on any specific capital clemency applications currently before him, but hinted in a press conference to continuing interest in using his clemency authority in death penalty cases. For more information on the moratorium, click here.
In February 2019, Governor Newsom granted further forensic testing to death-row prisoner Kevin Cooper, who has long proclaimed his innocence. Testing is still ongoing.
Board of Parole Hearings
The current Executive Officer of the BPH is Jennifer Shaffer, who was appointed by Governor Brown on June 10, 2011. She acts as the administrative head of the BPH, and is responsible for managing its daily operations and implementing policies. The position of chairperson is vacant.
Past Capital Clemency Decisions
It has been 50 years since a governor last commuted a death sentence in California. In 1967, Governor Ronald Reagan commuted Calvin Thomas’s sentence from death to life imprisonment, after it was discovered that Thomas, who was convicted of murdering a three-year-old boy, had organic brain damage that was not discovered until after his trial.
Denials (where newsworthy or controversial)
Clarence Ray Allen
Clarence Ray Allen was executed on January 17, 2006, California’s most recent execution. He was convicted of arranging a triple homicide from prison, where he was serving a life sentence for a prior murder. One of the victims had testified against Allen in a previous trial. As a result, a California jury sentenced him to death. Allen’s attorneys submitted a petition requesting clemency, arguing that executing a 76-year-old prisoner who was diabetic, legally blind, and nearly deaf was unconstitutional. Allen’s lawyers also claimed that he was no longer a threat to society, but his request was denied by then-Governor Arnold Schwarzenegger, who made his decision without hearing oral arguments on clemency from either side.
Schwarzenegger reasoned that “[Allen’s] conduct did not result from youth or inexperience, but instead resulted from the hardened and calculating decisions of a mature man.” Schwarzenegger also factored the nature of Allen’s crimes and the jury’s previous decision into his conclusion. “Allen’s crimes are the most dangerous sort because they attack the justice system itself. The passage of time does not excuse Allen from the jury’s punishment.”
Stanley “Tookie” Williams
Stanley “Tookie” Williams was executed on December 13, 2005, almost 25 years after he was sentenced. His petition for clemency was denied by Governor Schwarzenegger the day before his scheduled execution. Schwarzenegger also denied Williams’ request for a stay based on an assertion of innocence. Williams, the former leader of the Crips gang, was convicted for the deaths of four people in Los Angeles during an “avalanche” of gang violence in the city. Williams maintained his innocence throughout his trial and appeals, but based his request for clemency on his behavior and rehabilitation in prison. While on death row, Williams wrote nine children’s books aimed to steer boys away from gangs and prison. Williams also maintained a website where gang members could reach out for guidance, and published a monthly newsletter for kids.
Williams was nominated for the Nobel Peace Prize three times, and in denying his appeal, the U.S. Court of Appeals for the Ninth Circuit noted that Williams was a good candidate for clemency due to his efforts to thwart gang violence. Yet, in his lengthy statement released regarding denial of clemency, Schwarzenegger criticized Williams’ books, citing to continued gang violence as a sign of weakness in Williams’ efforts. Schwarzenegger also did not address details of the mitigating and aggravating facts in Williams’ clemency request, differing from the usual practices of previous governors. Instead, the governor focused on letters from law enforcement officials that he received urging denial of clemency, and further criticized Williams for maintaining his innocence. Numerous prominent figures voiced support for clemency, including South African Bishop Desmond Tutu and hip-hop artist Snoop Dogg. However, “political strategists on both sides of the death penalty debate said…[Schwarzenegger] took the politically safe road by denying clemency…” At the time, the governor was facing a bid for reelection, and some argued Schwarzenegger was more interested in appealing to swing voters.
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