In re Procedures for Considering Requests for Recommendations Concerning Applications for Pardon Or Commutation

Article V, section 8 of the California Constitution provides that the Governor may not grant a pardon or commutation to a twice-convicted felon without a recommendation of this court. Although the court has often been asked to make such recommendations, we have not before provided a comprehensive explanation of our understanding of the nature of our article V, section 8 function. The purpose of this minute order is to provide such an explanation.

Under the California Constitution, the power to grant clemency to a person convicted of crime is an executive power, and its exercise often, and permissibly, rests on extrajudicial considerations. The role of this court under article V, section 8, is not to express a substantive view on the merits of an application; the court takes no position on whether the Governor should, as an act of mercy or otherwise, extend clemency to a particular applicant. It is, rather, to perform a more traditional judicial function: to determine whether the applicant's claim has sufficient support that an act of executive clemency, should the Governor choose to grant it, would not represent an abuse of that power. In accord with this understanding of the…