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pardon, including the investigation
On the one hand, pro-access groups
With a little legwork, judicial observers
by the Board of Parole Hearings that
criticized the rule for requiring a
can now learn more about what it takes
determined Wright deserves clemency,
member of the public to affirmatively
to get a pardon or commutation by
statements of support from several
file a motion to unseal. In addition,
monitoring the Supreme Court’s docket
“prominent political leaders,” as well as
the Supreme Court will not entertain
and submitting motions to unseal.
an opposition from the district attorney
motions filed after the recommendation
Transparency may improve the odds
who prosecuted Wright.
is granted. Because this process can
for those seeking clemency and reduce
take any length of time (three to four
the likelihood of abusive, unwarranted
months is typical), the public must file
political pardons.
The Saga Continues In the Wright matter, the Supreme
motions in a rush. On the other hand, some criminal justice
Thomas Burke, Rochelle Wilcox and
groups emphasized that clemency
Selina MacLaren served as counsel to
clemency files. Yet Governor Brown—
files can contain sensitive records. The
the First Amendment Coalition.
and subsequently, Governor Newsom—
Supreme Court’s response to these
continued to submit all clemency files
concerns was to allow for case-by-case
under seal.
redactions, but it rejected “a rigid rule
Court clarified three separate times that California’s access rules apply to
From December 2018 to May 2020, FAC filed seven more motions to unseal. Each time, the governor (represented by the Attorney General’s office) opposed. In every instance, the Supreme Court repeated its holding in the Wright matter and ordered the governor to resubmit the file. Eventually, FAC requested a global order that would apply to all clemency matters going forward.
" On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential." A New Rule On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential. Admin. Order 2021-05-26. Instead, when a member of the public submits a motion to unseal, the governor must resubmit the file in conformity with the Court’s access rules. While the new rule provides clarity, it is not without its critics.
shielding from public inspection” entire categories of documents.
Next Steps On July 7, 2020— after two and a half years of litigation—Governor Newsom released over a thousand clemency records. But these records only scratch the surface. A multitude of clemency files have been filed—and continue to be filed—under seal.
Selina MacLaren is an associate in the Los Angeles office of Davis Wright Tremaine. Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine.
