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Copyright (c) 2009 The Regents of the University of California on behalf of Boalt Journal of Criminal Law
Berkeley Journal of Criminal Law

Article: Clemency in California Capital Cases

Spring, 2009


14 Berkeley J. Crim. L. 37


Mary-Beth Moylan+ and Linda E. Carter++


This article is a survey of procedures and reasoning involved in California clemency in the context of the death penalty. Though the article is principally descriptive in nature, our analysis includes some prescriptive recommendations. This article grew from a report that we prepared at the request of the California Commission on the Fair Administration of Justice. 1 We undertook a study of clemency in capital cases throughout the years of California's use of the death penalty. 2 Our goal was to provide the Commission with as much information as possible about the procedures and reasons for granting or denying clemency in capital cases. In addition to researching documentary materials, we also interviewed many individuals who have been involved in capital clemency proceedings and policy. 3

We begin the article in Section I with a brief overview of the meaning of clemency, its function, and its historical background. Section II describes the present constitutional provision on clemency and its history as well as the history of executions and commutations in California. In Section III, we outline the highly limited legal constraints on clemency and the almost nonexistent intervention by courts in the clemency process.

In Section IV, we begin describing the clemency process as it exists in California, examining the roles of the Governor, the Legal Affairs Secretary, the Board of Parole Hearings, the attorneys for the petitioner, and the District Attorney's Office involved in each case. This section also includes the role of other ...
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