A Final Shrinking from Public Scrutiny

Arnold Schwarzenegger didn't have to issue a special executive order sealing from public view the papers relating to his last-minute shortening—by more than half—of the prison sentence of a convicted killer lucky enough to be the son of a former Speaker of the Assembly. The law already has that effect for any ex-governor's papers. All the order did was to call attention to the secrecy rule as providing political cover for the administration of that specially tempered justice reserved for the comfortably connected.  An editorial in the Sacramento Bee elaborates.

The same day Gov. Arnold Schwarzenegger trimmed nine years off the 16-year manslaughter sentence of Esteban Núñez, the son of former Assembly Speaker Fabian Núñez, he issued an executive order that sealed all the correspondence he'd received regarding that case and all other clemency cases that came before him.

He didn't need to do that. Unless a governor chooses to release the documents, all gubernatorial clemency records are sealed by law automatically for 25 years after the case is closed. That law is a travesty, for both the general public and families affected by clemency decisions.

Denied access to the written record, Fred Santos, the anguished father of the college student a drunken Núñez and his friends killed, is left to assume the obvious and the worst, that political influence played the primary role in the governor's decision to reduce the sentence for the man who killed his son.

"He had all the big political guns coming out in his defense," Santos complained. "We're just regular people. Is this is what justice is about?"

In a press release announcing the partial commutation of the sentence, the governor said he gave Núñez a break and not Ryan Jett, a co-defendant, also convicted in the case, because Núñez did not strike the final knife blow that killed 22-year-old Luis Dos Santos and he had no prior felony convictions.

"I do not discount the gravity of the offense," Schwarzenegger explained in a news release. "But given (Esteban) Núñez's limited role in Santos' death and considering that, unlike Jett, Núñez had no prior criminal record prior to the offense, I believe Núñez's sentence is excessive."

The governor's stated reason for reducing Núñez's sentence would be easier to believe and accept had Schwarzenegger not been so stingy with commutations throughout his tenure as governor. Although he cut the sentence of Sara Kruzan – a woman who was sentenced to life without possibility of parole after killing her pimp at age 16 – he refused to set aside the death penalty or inmate Kevin Cooper, a convicted killer who five appellate court judges now say "is probably innocent of the crimes for which the State of California is about to execute him."

State law gives California governors extraordinary power to seal private correspondence both while in office and after they leave. While correspondence regarding clemencies is sealed for a quarter century, all other gubernatorial papers not previously made public are sealed for an even longer period of time, for 50 years or the death of the governor, whichever comes later.

Historically, governors have claimed that if they don't have the power to keep their private written records secret, people will be unwilling to give honest, unfettered and, at times politically unpopular advice and that governance will suffer.

Yet that has to be balanced against the danger of secrecy, which erodes public confidence in government and elected leaders. Grieving fathers such as Fred Santos will assume that political influence plays a role in clemency, that "regular people" like him can't get justice. That's a corrosive attitude in a democracy.

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