by Keith Sanders
On May 26, 2021, the Supreme Court of California filed en banc a new administrative order changing the Court’s published Internal Operating Practices and Procedures regarding the confidentiality of clemency records. The Court had previously treated such records as confidential. Now clemency records that are forwarded to the Court, with certain provisions, will be available to the public.
Not all clemency applications come to the Court. Only those from prisoners “twice convicted of a felony” must get the Court’s recommendation, with four justices concurring, before going to the governor, who has the final authority to “grant a reprieve, pardon, or commutation, after the sentence, except in case of impeachment.”
In 2020, the Court issued an order clarifying its role in the clemency process for twice-convicted felons, interpreting Art. V § 8 (a) of the state constitution to bar it from expressing a “substantive view on the merits” of an application. Instead its function is strictly limited to a judicial determination that “an act of executive clemency, should the Governor choose to grant it, would not represent an abuse of power.” See: Procedures for Considering Requests for Recommendations concerning Applications for Pardon or Commutation (2018) 4 Cal. 5th 897.
Following that clarification, the Court reassessed its responsibilities with respect to those clemency files under its purview. When the Court issues a favorable recommendation, the records involved are returned to the Governor, otherwise the records remain with the Court. (Cal. Penal Code § 4952). Those records had been deemed confidential since 1999. After determining that making those records available to the public did not violate its responsibilities, the Court made its proposal in November 2020 not to “categorically treat the contents of clemency records as confidential,” soliciting public input before filing this order in May 2021.
The order does not extend to the Governor’s decision to withhold records from public requests nor will the Court entertain any motion requesting records if the clemency records have already been returned to the Governor. Additionally, the Court outlined five criteria for not releasing clemency records in its possession:
• if disclosure violates “legitimate privacy expectations” of the applicant or others;
• if releasing the information “could imperil [their] safety”;
• if the information appears in preliminary notes incidental to the records;
• if disclosure inhibits the flow of information relevant to the clemency process; or
• if the information released entails insight regarding the Court’s exercise of its responsibilities pursuant to Art. V § 8 (a).
Source: Administrative Order 2021-05-06 (Cal. 2021)
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