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Abstract
For persons serving life-without-parole (LWOP) sentences in California, a commutation usually offers them the sole glimpse of hope for release from prison. While governors were reluctant to consider any sentence reductions from 1975 to 2016, commutations—including those for LWOP—have become a more frequent occurrence since. Yet, little is still known about how governors have justified reducing a sentence that initially offered no prospect of release from prison. Given the apparent change in practice, themes emerging from the content of 177 gubernatorial commutation summaries granted to persons serving LWOP sentences between 2017 and 2021 are analyzed in this paper. Through open coding, rehabilitative indicators (programming and institutional conduct) emerged as necessary preconditions for a commutation, while retributive factors (a reassessment of the nature of the crime and the prerogative to adjust excessive prison sentences or to correct sentencing errors) complemented sentence reductions. The findings expose the ethical issues that arise from an LWOP sentence and the subsequent commutation. More specifically, they shed light on the commitment offenses underlying commuted LWOP sentences and raise questions regarding the penal objectives that are supposed to be accomplished with permanent imprisonment.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the author(s).]
1 Appleton and Grøver, “The Pros and Cons,” 603.
2 Henry, “Death-in-Prison Sentences,” 66.
3 Seeds, Death by Prison, 23.
4 England and Ralph, “Pardon, Commutation, and their Improvement,” 29. However, the executive’s power is limited to reducing the punishment and not to increasing it. Compare with Bedau, “A Retributive Theory,” 189.
5 The three separate executive powers—pardon, reprieve, and commutation—are usually lumped together under the umbrella term “executive clemency” (Cal. Const., art. V, §8). While a commutation is a sentence reduction, a reprieve allows the governor to suspend the execution of a sentence for some time, while a pardon relieves an individual from further punishment upon sentence completion. In common law countries like the U.S., clemency has a long history, as it has allowed the executive to use their discretion to grant relief in individual criminal cases. See Martin, “Commutation of Prison Sentences,” 594.
6 Ridolfi and Gordon, “Gubernatorial Clemency Powers,” 26.
7 Novak, Comparative Executive Clemency, 3.
8 Rapaport, “Retribution and Redemption,” 1506.
9 California Department of Corrections and Rehabilitation, Offender Data Points, 10.
10 The report “California Governor’s Office 1949–2009” was accessed at the California State Archives in Sacramento, California, during a study visit in May 2022. The two LWOP commutations were granted by Governor Arnold Schwarzenegger. In 2009, he commuted the sentence of Brandon Hein to 25-to-life. Brandon Hein was convicted under the felony murder rule and was 18 years old when the murder occurred. In 2010, Governor Schwarzenegger commuted the LWOP sentence of Sara Kruzan to 25-to-life. Sara Kruzan was a sex trafficking victim who killed her pimp when she was 15 years old.
11 Novak, Comparative Executive Clemency, 155.
12 While the LWOP became a sentencing alternative to the death penalty for first-degree murder convictions in the late 1970s (Cal. Pen. Code §187), it can also be imposed for felony murder, kidnapping involving death or bodily harm (Cal. Pen. Code §209), and certain sex crimes with aggravating factors.
13 Cal. Const., art. V, §8(a).
14 Cf. Acker and Lanier, “May God–or the Governor–Have Mercy;” Barkow, “The Politics of Forgiveness;” Braithwaite, “Executive Clemency in California;” Heise, “Mercy by the Numbers;” Horowitz and Uggen, “Consistency and Compensation in Mercy;” Jacobsen and Bex Lempert, “Institutional Disparities;” Moylan and Carter, “Clemency in California Capital Cases;” and Pascoe and Manikis, “Making Sense.”
15 Review Clayton, “Forgiving the Unforgivable,” 756; Pascoe and Manikis, “Making Sense,” 16–7; Rapaport, “Retribution and Redemption,” 1506.
16 Cf. Pascoe and Manikis, “Making Sense,” 17; Rapaport, “Retribution and Redemption, 1503.”
17 Rapaport, “Retribution and Redemption,” 1503.
18 For a detailed discussion of the various meanings of rehabilitation, please review Raynor and Robinson, Rehabilitation, crime and justice.
19 In Yesterday’s Monsters, Aviram, 169, observed a shift from a more “objective assessment of the prisoners’ programming records … toward a more subjective, vague assessment of their performance” in parole board hearings for people serving life sentences in California since the late 2000s. Compare with re: Lawrence, 150 Cal. App. 4th 1511.
20 Goodman, “Another Second Chance,” 440.
21 Rehabilitation has numerous different meanings that can vary from jurisdiction to jurisdiction and time to time. For a more detailed, nuanced, and critical discussion of the term, please review Raynor and Robinson’s Rehabilitation, Crime and Justice, Goodman’s “Another Second Chance,” Shah’s “The Meaning of Rehabilitation,” and Warr’s, “Always Gotta be Two Mans.”
22 Gill, “Clemency for Lifers,” 22.
23 Compare with Pascoe and Manikis, “Making Sense,” 8; Rapaport, “Retribution and Redemption,” 1503.
24 Compare with Butler et al., “Redemption at a Correctional Turning Point,” 38.
25 In “Helping Others,” 110, LeBel, Richie, and Maruna, citing Eglash, 1957 and 1977, who first coined this phrase.
26 Moylan and Carter, “Clemency in California Capital Cases,” 72.
27 Clayton, “Forgiving the Unforgivable,” 757.
28 Robinson, Life Without Parole, 142.
29 Stockton, Ensuring Access, 16.
30 von Hirsch, Proportionate Sentences, 208; von Hirsch, Punishment Futures, 256.
31 von Hirsch, Proportionate Sentences, 212; Ryberg, “Retributivism and the Dynamic Desert Model,” 58.
32 Abramowitz and Paget, “Executive Clemency in Capital Cases,” 188–9; Acker, Harmon, and Rivera, “Merciful Justice,” 185; Monahan, Vito, and Vito, “A Comparison of Executions,” 2; Moylan and Carter, “Clemency in California Capital Cases,” 74.
33 Abramowitz and Paget, “Executive Clemency in Capital Cases,” 188–9; Acker and Lanier, “May God,” 215.
34 Clayton, “Forgiving the Unforgivable,” 787; Pascoe and Manikis, “Making Sense,” 8; Rapaport, “Retribution and Redemption,” 1519–20.
35 Compare with Herrera v. Collins, 506 U.S. 390 (1993).
36 Larkin, “Revitalizing the Clemency Process,” 840.
37 Clayton, “Forgiving the Unforgivable,” 756.
38 Compare with von Hirsch, “Punishment Futures,” 256; Ryberg, “Retributivism,” 56; Husak, “Retributivism and Over-Punishment,” 176. In Why Punish? How Much? A Reader on Punishment and Retributivism Has a Past: Has it a Future? Michael Tonry offers a detailed presentation of the various retributive approaches.
39 Husak, “Retributivism and Over-Punishment,” 177.
40 Ibid., 170.
41 Dagan and Roberts article “Retributivism” and Robinson’s book chapter Life without Parole, for example, center the LWOP sentence.
42 Robinson, Life without Parole, 147; von Hirsch, “Proportionate Sentences,” 214.
43 von Hirsch, “Proportionate Sentences,” 209; Dagan and Roberts, “Retributivism,” 5.
44 von Hirsch, “Proportionate Sentences,” 209.
45 Ibid.
46 Dagan and Roberts, “Retributivism,” 3–4. Compare also with the findings of Jacobsen and Bex Lempert, “Institutional Disparities,” 271–84.
47 Messinger et al., “The Foundations of Parole,” 73.
48 Martin, “Commutation of Prison Sentences,” 594.
49 Pascoe and Manikis, “Making Sense,” 17–8.
50 Abramowitz and Paget, “Executive Clemency in Capital Cases,” 189.
51 Love, “The Twilight of the Pardon Power,” 1184; Gill, “Clemency for Lifers,” 22.
52 Gill, “Clemency for Lifers,” 22.
53 Barkow, “The Politics of Forgiveness,” 154; Love, “The Twilight of the Pardon Power,” 1171; Gill, “Clemency for Lifers,” 23; Novak, Comparative Executive Clemency, 167; Larkin, “Revitalizing the Clemency Process.”
54 Brown v. Plata, 563 U.S. 493 (2011).
55 Persons convicted of non-serious, non-violent, and non-sexual offenses.
56 Shaffer, Discretionary Parole in California; California Board of Parole Hearings [BPH], 2023.
57 In California, the BPH decisions are not final. For those convicted of murder, the governor may reverse a BPH grant. Compare with California BPH 2023.
58 Brown, Executive Report, 2018.
59 Brown, Executive Report, 2019.
60 Newsom, Executive Report, 2020.
61 Newsom, Executive Report, 2021.
62 Newsom, Executive Report, 2022.
63 Cal. Const., art. V, §8(a); Cal. Pen. Code §4807a.
64 Other petitioner characteristics, such as their ethnicity or race, nationality, family, education, and socioeconomic status, were not shared in the summaries.
65 Attached to each commutation grant summary was also the applicant’s personal application letter. I did not base this study on the case details provided in the personal letters; instead, I simply used the case details shared in the governor’s decision summary. It is important to bear this in mind, as the applicants’ letters and the way the applicants themselves described their commitment offenses and time in prison do not always align with the governor’s narrative.
66 In the first paragraph, they briefly described the governing offense; in the second, they introduced the applicant and included a brief personal and often remorseful quote from their interview with the BPH, which is the first to interview applicants and recommend potential candidates for a grant to the governor (Cal. Pen. Code §4801). In the next paragraph, the institutional and community references were listed, and the actual quotes of the references were often provided. If an applicant had a felony record, a reference to the California Supreme Court recommendation was made in the following paragraph. What was most important for this research was the following paragraph, where the governors weighed the evidence and summarized the main points considered for the grant. In the final paragraph, the governor specified the commuted sentence (with the minimum often set at the time already served, thereby making the applicant eligible for an immediate parole hearing).
67 These percentages were calculated based on how the cases were narrated in the governors’ commutation files and not on how they were narrated in the applicant letters or any court records.
68 Gender was captured as it was identified in the gubernatorial summary of the commutation grant.
69 Should the petitioner have been convicted of more than one felony, the governor must seek input of the state Supreme Court. If the governor decides to grant a commutation, the majority of Supreme Court justices—four—must concur with the governor’s decisions (Cal. Const., art. V, §8). This is a unique feature of California’s commutation power that suggests that the power is not purely executive but has a judicial layer in specific cases.
70 Newsom, Executive Report, 2021, 151.
71 Ibid., 438.
72 Newsom, Executive Report, 2020, 507.
73 Brown, Executive Report, 2018, 686.
74 Brown, Executive Report, 2019, 1819.
75 Ibid., 1876.
76 Ibid., 2350.
77 Ibid., 909.
78 Ibid., 1276.
79 Ibid., 2195.
80 Ibid., 2440.
81 Ibid., 2707.
82 Ibid., 902.
83 Ibid., 888.
84 Newsom, Executive Report, 2021, 593.
85 Brown, Executive Report, 2019, 1145.
86 Newsom, Executive Report, 2019, 106.
87 Brown, Executive Report, 2019, 1460.
88 Ibid., 1003.
89 Ibid., 777.
90 Ibid., 1438.
91 Brown, Executive Report, 2018, 1343.
92 Brown, Executive Report, 2019, 1740.
93 Newsom, Executive Report, 2021, 194 and 218.
94 Brown, Executive Report, 2019, 986.
95 Compare with California Penal Code § 4801(b)(1): The board, in reviewing a prisoner’s suitability for parole pursuant to Section 3041.5, shall give great weight to any information or evidence that, at the time of the commission of the crime, the prisoner had experienced intimate partner battering but was convicted of an offense that occurred prior to August 29, 1996.
96 Brown, Executive Report, 2018, 869.
97 Brown, Executive Report, 2019, 2018.
98 Brown, Executive Report, 2018, 708.
99 Brown, Executive Report, 2019, 1297.
100 Ibid., 902.
101 Brown, Executive Report, 2018, 738.
102 Newsom, Executive Report, 2021, 321.
103 Brown, Executive Report, 2019, 1910.
104 Ibid., 1916.
105 Compare with Aviram, Yesterday's Monsters, 106.
106 Newsom, Executive Report, 2020, 218.
107 Ibid., 212.
108 Brown, Executive Report, 2019, 150.
109 Ibid., 980.
110 Newsom, Executive Report, 2020, 106.
111 Seeds, Death by Prison, 6.
112 Most of Governor Newsom’s summaries end with the following phrase: “The act of clemency for [the applicant] does not minimize or give [their] conduct or the harm it caused. It does recognize the work [they had] done since to transform [themselves].”
113 Love, “Reinventing,” 7.
114 Placing a person serving LWOP into the custody of a Department of Corrections and Rehabilitation can be considered a misnomer in and of itself.
115 Those released from a parole-eligible life sentence during the fiscal year 2017–18 had a 1.9% three-year reconviction rate. In comparison, the three-year reconviction rate of those released from a determinate sentence was 44.9%. While the report would include a separate section for life without parole, only one person was released from such a sentence during that fiscal year and was not reconvicted within three years.
116 Miller, Potter, and Kappeler, “The Myth,” 207.
117 Gilliam and Iyengar, “The Superpredator Script,” 1–2.
118 Pizarro, Chermak, and Gruenewald, “Juvenile ‘Super-predators’ in the News,” 102.
119 Steinberg, “Adolescent Brain Science,” 411.
120 Roper v. Simmons, 543 U.S. 551 (2005).
121 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010) and Miller v. Alabama, 567 U.S. 460 (2012).
122 Cal. Pen. Code §4801c.
123 Compare with Cal. Pen. Code §3051h.
124 As Table 2 shows, the average age of the male petitioners at the time of their commitment offense was 21.5 years.
125 Cal. Pen. Code §4801a.
126 SB 1437 amended California’s Penal Code. Under section 189(e), first-degree murder can only be triggered if a person (1) was the actual killer, (2) had intent to kill and aided or abetted the actual killer in the commission of the murder, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. Prior to the passage of this law, any participant in a felony that resulted in murder could be charged with the murder, even if they did not plan or even know about the killing.
127 Ibid.
128 Compare with Husak, “Retributivism and Over-Punishment,” 174.
129 See California Proposition 62 from 2016, the last proposition to repeal the death penalty, which was rejected by the majority of voters.
130 Vannier, Normalizing Extreme Imprisonment, 32.
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Notes on contributors
Doris Schartmueller
Doris Schartmueller is an Associate Professor of Department of Political Science and Criminal Justice, California State University, Chico, CA 95929-0455.