Schwarzenegger and the pardon power

A governor traditionally (and, in California, constitutionally) has the power to commute a criminal sentence for whatever reason he chooses, or none at all. But that power is generally exercised in the interests of justice, as an act of mercy for a perpetrator whose punishment exceeds his crime or as a check on a judicial system run amok in other ways.

So it was especially outrageous that Gov. Arnold Schwarzenegger used his power to cut nine years off the 16-year manslaughter sentence for Esteban Nuñez, the son of the governor’s friend, former Assembly Speaker Fabian Nuñez. In January, Schwarzenegger called the sentence excessive because the younger Nuñez was not the killer. But by April, when he was out of office, he acknowledged that he shortened the sentence out of friendship for the former speaker.

There are worse ways for an executive to abuse his pardon or commutation power — selling reduced sentences to the highest bidder, for example — but doling out reprieves based on personal or political connections comes close. It’s happened before (remember Jimmy Hoffa and “Scooter” Libby, among others) and it will probably happen again, but such actions undermine the traditional rationale for vesting an executive with such extraordinary, unreviewable power.

Nevertheless, it still makes sense for the governor to have that power, and once exercised it should not be subject to being overturned in court. That’s true even in California, where voters in 2009 passed Marsy’s Law, the “victim’s bill of rights.”

The law requires prosecutors and the crime victim’s family members to be notified before, and in some cases to participate in, any “hearing” or “proceeding” that affects the release of the perpetrator. The family of one of Nuñez’s victims, and now the San Diego district attorney, have sued under Marsy’s Law to nullify the commutation because the governor acted without first notifying the families.

But a governor’s decision on pardons, clemency and commutation occurs independently of any hearing or proceeding and does not appear to be subject to Marsy’s Law. Nor should it be. Unlike an open hearing of a parole board, for example, where public statements are offered regarding a convict’s fitness for release, an executive’s decision-making process is closed. The governor’s pardon power stands apart from the rest of criminal procedure. That’s why it’s such a hazard when exercised poorly, but also such an important safety valve when used properly. Californians should resist the temptation to turn yet one more function of government into a committee meeting or a public referendum.

That’s especially true in cases freighted with political overtones. The Nuñez sentence was, in fact, long for a manslaughter conviction (which is not to say it was undeserved) and could have — in Schwarzenegger’s mind — been excessively harsh as a result of political pressure. The governor later admitted that he made his decision, as he made so many others, based on a personal relationship, and he deserves to be disparaged for that. But that’s not a sufficient reason to begin unraveling an executive power that on balance serves the state well.