BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 648 (Block)
As Amended June 20, 2011
Hearing date: June 28, 2011
Penal Code
MK:dl
CLEMENCY
HISTORY
Source: The Office of the San Diego County District Attorney
Prior Legislation: None
Support: San Diego County Police Chiefs' and Sheriff's
Association; County of San Diego; California Narcotic
Officers' Association; California Police Chiefs
Association; Association of Orange County Deputy
Sheriffs; Long Beach Police Officers Association; Los
Angeles County Peace Officers Association; Santa Ana
Police Officers Association; California Fraternal Order
of Police; San Bernardino Sheriff-Coroner; Los Angeles
County Sheriff's Department; Victim Assistance
Coordinating Council; Crime Victims United; California
District Attorneys Association
Opposition:Legal Services for Prisoners with Children
Assembly Floor Vote: Ayes 68 - Noes 0
KEY ISSUE
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SHOULD A PERSON APPLYING FOR THE COMMUTATION OF SENTENCE BE
REQUIRED TO GIVE NOTICE TO THE DISTRICT ATTORNEY AND THE VICTIM
10 DAYS BEFORE THE GOVERNOR CAN GRANT THE COMMUTATION?
PURPOSE
The purpose of this bill is to require an application for
commutation of sentence be served on district attorney 10 days
before the Governor can act. The District Attorney must then
give notice to the victim.
Existing law provides that subject 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 cases of impeachment. The Governor
shall report to the Legislature each reprieve, pardon, and
commutation granted, stating the pertinent facts and the reason
for granting it. The Governor may not grant a pardon or
commutation to a person twice convicted of a felony except on
recommendation of the Supreme Court, four judges concurring.
(Article 5, § 8(a) of the California Constitution.)
Existing law requires that at least 10 days before the Governor
acts upon any application for a pardon, written notice of the
intention to apply therefor, signed by the person applying,
shall be upon the district attorney in the county where the
conviction was had, and proof, by affidavit, of the service
must be presented to the Governor. (Penal Code § 4804.)
Existing law provides that the Board of Prison Terms (BPT) may
report to the Governor from time to time, the names of all
persons imprisoned in any state prison, who in its judgment
ought to have a commutation of sentence, or be pardoned or set
at liberty on account of good conduct, or unusual term of
sentence, or any other cause, including evidence of intimate
partner battering and its effects. (Penal Code § 4801(a).)
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Existing law states that in the case of a person twice convicted
of a felony, the application for pardon or commutation of
sentence shall be made directly to the Governor, who shall
transmit all papers and documents relied upon in support of and
in opposition to the application to the BPT. (Penal Code §
4802.)
Existing law provides that when an application is made to the
Governor for pardon or commutation of sentence, or when an
application is forwarded to the BPT, he or she may require the
judge of the court before which the conviction was had, or the
district attorney by whom the action was prosecuted, to furnish
him or it, without delay, with a summarized statement of the
facts proved on the trial, and of any other facts having
reference to the propriety of granting or refusing said
application, together with his recommendations for or against
his granting of the same and his reason for such recommendation.
(Penal Code § 4803.)
This bill requires that at least 10 days before the Governor
acts upon any application for a commutation of sentence,
written notice of the intention to apply therefor, signed by the
person applying, shall be upon the district attorney in the
county where the conviction was had, and proof, by affidavit, of
the service shall be presented to the Governor.
This bill provides that the district attorney may submit a
written recommendation to the Governor for or against
commutation of sentence.
This bill requires the district attorney to notify the victim or
victims of the crime or crimes related to the application and
the victim's families who may also submit a recommendation to
the Governor for or against commutation of sentence.
This bill recasts existing provision of law that require the
Governor, at the beginning of each Legislative Session to report
to the Legislature each case of reprieve, pardon, or
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commutation, stating the name of the person convicted, the
crime of which the person was convicted, the sentence and its
date, and the date of the reprieve, pardon or commutation and
the reason for granting the same, and makes these reports
available to the public.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
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2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The California Constitution grants the Governor broad
authority to grant reprieves, pardons, or commutations
subject to statutory procedures. This long-standing
authority to perform acts of clemency is a
constitutional prerogative that provides important
checks and balances. However, current statutory law
governing procedures does not provide for notice to
district attorneys or victims or an opportunity to be
heard during the consideration of an application for
commutation.
AB 648 would remedy that omission by requiring the
applicant of a pardon or commutation request to notify
the district attorney of the county where the
conviction occurred 30 days before the Governor acts.
The district attorney would then notify the victim and
their family. Both parties would have an opportunity
to submit a written recommendation for or against the
commutation request to the Governor. Under current
law district attorneys are notified of a pardon
request by the applicant 10 days prior to a decision.
The measure also strengthens transparency and
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oversight of the process by requiring the Governor to
submit a report to the Legislature each year in
writing on the pardon, reprieve and commutation
requests received that were granted. AB 648 also
requires inclusion of the application request of those
granted. The report and applications will be
available to the public as well.
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2. Notice of an Application for Pardon
This bill requires written notice of an intent to apply for a
pardon to be served on the county district attorney at least 10
days before the Governor acts upon the application for
commutation. The district attorney may submit a written
recommendation to the Governor either for or against the
commutation and shall also notify the victim so that he or she
may submit a recommendation to the Governor.
The San Diego County District Attorney the sponsor of this bill
notes:
We want to be very clear that this legislation is not,
in any way, attacking the Governor's power to grant
pardons, reprieves or commutations. We simply want to
change the process required by the applicant.
Assembly Bill 648 will provide the District Attorney
of jurisdiction 10 days to respond to the Governor's
intended commutation. The notice is by the person
applying to have his or her sentence commuted and must
occur whether or not the Governor intends to grant the
commutation sought.
3. Changes to the Report on Commutations and Pardons
This bill also makes changes to the report that must be filed
with the Legislature by the Governor every session on any
reprieve, pardon or commutation granted by the Governor. This
bill clarifies that the report shall be in writing and that it
should include each application that was granted for each case
of reprieve, pardon or commutation by the Governor or his or her
predecessor during the preceding session.
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