By Crystal Pechnikova
Though more often aligned with Republican politicians and their goals, my position as a proud Californian who believes in true justice transcends politics. So, now, I’m amongst the millions of citizens who disapprove of Florida Governor Ron DeSantis’ irresponsible, mean-spirited sending of political refugees/immigrants to “blue states;” now including California. That said, I submit this open letter to you and your office as both a state constituent of yours and as an American citizen formally exercising my FIRST AMENDMENT right to “petition the government for a redress of grievances.”
It is my belief that, with this petition, I convey what most of the State’s citizens will probably agree is a unique, viable, and very much deserved remedy going to how California can respond to DeSantis’ tyranny and disrespect. If I’m correct, consider me to now be invoking the collective will of that majority. In other words, if you and your staff properly handle this petition you’ll take steps to determine whether or not most Californians agree with what I propose. If they do, you should not hesitate to act. Vox populi, vox Dei.
First, I cite Aristotle’s simple yet profound definition of justice, that being when people get what they deserve. That concept is applicable throughout this entire situation now and to all who “deserve” that you muster the courage to act, decisively. For instance, as California citizens, and your constituents, did we deserve to have our State openly disrespected through DeSantis’ dishonest, cruel political stunt? Did the refugees deserve it? Why was he so sure he could get away with the audacity to have, essentially, punk-slapped and spit in the faces of forty plus million Californians? Why? Might it be that you Democrat politicians have a well known, much exploited defect in your DNA, that being the lack of intelligent willpower to render undesirable 
consequences as deterrents against such open contempt and dirty tricks. Because it sure seems like your hesitancy to fight back, effectively, is tantamount to both a “green light” for such and flashing neon “KICK ME” sign prank you all acquiesce to wearing on your backs. That is why DeSantis knew it was/is most unlikely you would do anything like what is being suggested in this petition. But now? You’re not alone, Governor. Moreover, you could surprise the world and, in one fell swoop, do great justice on a potentially historic scale while also changing the complexion of your political party, no more “KICK ME” sign. Might that be something a true leader would do? Hmmm.
You now have a golden opportunity to let Governor DeSantis’ bad behavior be the catalyst for that great justice while also being a huge political black eye for him. Federal courts, state lawmakers, prison/parole officials, and yourself have been busy working on safely reducing the prison population in our state. Isn’t the average annual cost of incarcerating a single inmate now above $110,000.00? It is also true that there is one category of inmates who are the main reason that average cost is so high, elderly prisoners. How many of those prisoners (age 50+) have already been incarcerated 15-20-25 years, or even more? Are there not thousands of them? How many of them have costly medical issues? How many of these same prisoners have been behaving well and have worked their way down to lower security prisons? And what about the very significant numbers of those who were given sentences our society increasingly sees as excessive? Furthermore, what about many amongst them who still have valid, weighty questions and doubts surrounding the underlying judgments against them?
Now, if the Fourth Estate makes this an effective “open letter” the public can be enlightened or reminded of perhaps the biggest factor your office is, at least, morally obligated to consider. It goes to what percentage of these elderly prisoners is likely to reoffend if and when released. It is a statistical fact that less than 1% of them do. They are the safest ones to release. So this is the picture that develops before the eyes of all with at least average intelligence:
THOSE PRISONERS WHO HAVE SERVED THE LONGEST SENTENCES ARE BOTH THE OLDEST AND MOST EXPENSIVE TO KEEP IN PRISON YET THEY ARE ALSO THE CATEGORY LEAST LIKELY TO COMMIT MORE CRIMES IF AND WHEN RELEASED
Were you to have hate in your heart, like Governor DeSantis so obviously does, the lack of logic or sane rationale for keeping these particular prisoners locked up would easily be understood. However, I think you are quite capable of distinguishing yourself here.
When you issued your moratorium on carrying out executions you were refreshingly candid about the death penalty’s racist application and unacceptable levels of doubt infecting too many underlying judgments. When I read what you said about those concerns, I felt certain you had indeed been made aware of the comprehensive study done by Columbia University School of Law on state criminal court systems and the death penalty in America. California was shown to be the worst or amongst the worst as far as reliability of convictions was/is concerned. Much worse than that, in this citizen’s eyes, was the determination that California judges were/are the most reluctant to reverse convictions tainted by serious constitutional error, even in death penalty cases. Am I wrong to believe that particular point was in your mind when you made the comment about your unwillingness to sign your name to “death warrants” under such clouds of doubt?
Governor Newsom, pure logic dictates the conclusion that such “doubt” is very significantly increased in non-death penalty cases. Why? Because all those other cases were subject to less reliable procedures, less reliable defenses, and vastly less reliable judicial review. Is this the biased opinion of a citizen with an ax to grind? Quite the contrary, Governor. In fact, the ultraconservative, late, Supreme Court Justice Antonin Scalia put it like this:
The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment (which again Justice Breyer acknowledges) “[C]ourts (or state Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue…The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from abolitionist judges), while the lifer languishes unnoticed behind bars.
Glossip v. Gross (2015) 193 L. Ed. 761 U.S.
With this aspect of my grievances I’m referring to the elephant in the room that, obviously, never gets adequate discussion in Sacramento, much less acted on in any meaningful way, wrongfully convicted prisoners. That brings me back to justice and the power you do have. Historians and informed counsel will confirm that traditional grounds for pardons, clemency, and commutations go back hundreds, even thousands of years and they do include the age of the prisoner, infirmity, societal changes, changes in government or laws, good behavior, but also where there are circumstances in mitigation and/or doubts about the underlying judgment (particularly in what the law regards as “hard cases”).
You yourself are on record acknowledging the existence of such doubts, even in death penalty cases that California courts have affirmed. So now I ask that the processing of this petition include you and your staff reading the LA TIMES article(s) written by Maura Dolan regarding the case of Johnny Baca when it went before NINTH CIRCUIT judges Wardlaw, Fletcher, and Kozinski. Let her article and the words of those judges punctuate the point being made here about there being many wrongful convictions actually facilitated by state court judges. Many of those cases are represented amongst the elderly lifers who can and should now benefit through you showing the courage to do what is right. Otherwise, it seems you’d be implying, in the names of all Californians, an illogical and immoral message to these particular prisoners sounding like this: “If you all had death penalty sentences I would act. But since you only have life sentences, having served 15- 20-25+ years? I’ll continue to sit on my hands despite the fact that many of your cases have the requisite level of doubts that would have won you the benefit of my taking action, had you been sentenced to death.” While you’re feeling that, revisit Justice Scalia’s exact point, quoted above.
How many political refugees/immigrants have been transported to “blue states” by “red state” governors? Well, my guess is that there are 3000-5000 elderly California prisoners who would be very grateful for bus or plane transportation to Florida or Texas and who also meet the following criteria:
1)are a minimum of fifty years of age;
2)have already been incarcerated 15-20-25 years or more;
3)have worked their ways down to lower Level II prisons;
4)have been maintaining good behavior;
5)have some type of health issue(s) thus being costlier to incarcerate;
6)have documented participation in rehabilitation programs.
How many of these prisoners have been unfairly convicted? How many even had California Court of Appeal or state Supreme Court judges/justices disagreeing with the legal validity of their trials, convictions, or even appellate review processes? (dissents by jurists voting to grant relief yet being outvoted). How many of these prisoners won CERTIFICATES OF APPEALABILITY in the federal courts by making the required “substantial showing” of the denial of Constitutional rights?
A major aspect of my grievance gives further good cause for you to act and it is this: After enactment of the ANTITERRORISM EFFECTIVE DEATH PENALTY ACT of 1996, our state judiciary has greatly contributed to the epidemic of wrongful convictions. This is much of why it is upon the Executive branch to step in and exercise power it has been endowed with for reasons just like this. Fundamental fairness requires it. And yet? That power has not been, and is not being, utilized adequately. Please consider Alexander Hamilton’s entire text on “Pardoning Power of the Executive” in Federalist No. 74, which includes:
“Humanity and good policy dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Governor George Ryan issued a mass commutation of all death sentences in Illinois and the very reason he did so presents itself here in a lot of lifers’ cases. There, it became self evident that, despite the fact the state’s judges knew of many wrongful convictions, they remained in lockstep with each other refusing to provide remedy and exploiting “procedural rules” to deny rehearings. So he properly used Executive power and, as you personally know, he’s not been the only one to do so.
So my grievance includes that too many people have been wrongfully convicted in California; too many have been and are subject to excessive sentences; too many prisoners’ cases have circumstances in mitigation that have been ignored; too many have that requisite level of doubt surrounding their cases which has triggered the exercise of clemency or commutation power in the past. I believe that you do realize all or most of these things already. I think you also know that these festering, neglected wrongs disproportionately impact upon people of color. That is neither coincidence nor accident but the fingerprints and mug shot of institutionalized racism.
All I have outlined above exists within this reality which cannot, fairly, be disregarded; for standing alone, it constitutes a circumstance in mitigation. All of these long term, elderly prisoners have been serving their lengthy sentences under prison conditions which, for decades, have been declared illegal by the federal courts. Per the metric of Aristotle’s definition of justice, shouldn’t the time served under unconstitutional conditions count for more? What lawful authority did any state court judge have to sentence anyone to endure illegal punishment? And yet, that is exactly what has been happening for decades. Noteworthy is the fact that these same courts have been and remain so begrudging with fundamental fairness and the granting of warranted relief they simply don’t afford it. (return to Hamilton’s most appropriate words above)
My proposal is that the State of California initiate a rapid process to recognize a category of prisoners eligible for mass commutations, clemency, or sentence modifications. I believe that most of us, your constituents, would agree that the criteria in the foregoing are fair. If the elderly prisoners meet them the State of California should not only provide them bus or plane trips to Florida or Texas but also a check or debit card to give them a fair, realistic opportunity to successfully reintegrate back into society. How much? How about an amount equaling what it would otherwise cost to keep them incarcerated 36 1⁄2 DAYS further? In other words, 10% of that average annual cost to taxpayers. Wouldn’t that be reasonable, civilized, exemplifying some newly born 21st century California justice? Such a provision would, also, preemptively deflate the air out of Governor DeSantis’ sure-to-come whining complaint that we have irresponsibly dumped people in his state; as both he and Governor Abbott have both done with the refugees/immigrants.
Such a reasonable amount ($11,000) would cover such expenses as first and last month’s rent, clothing, a cheap used vehicle, perhaps work-related gear, and still leave a small balance in a bank account. This will also show a stark contrast against how the immigrants were dumped into communities in dire straits. Most importantly, it will give these LEAST-LIKELY-TO-REOFFEND prisoners a fair start.
I conclude this petition and open letter requesting that your office’s fair consideration include these final points:
1)Informed counsel will confirm for you and California newspapers that stipulations for the prisoners not to return to the state, permanently or for a specified time period, can also legally be made part of the process. Precedent for such exists.
2)As mentioned, this particular power of the Executive has, per tradition, been exercised in cases where doubt about the reliability of the underlying judgment exists. One of my grievances is that the exercise of Executive power based upon this particular ground has become so rare and inadequate its as if it no longer exists. So I make the legal argument that fundamental fairness, AND THUS DUE PROCESS OF LAW IN AMERICA, calls for there to be an official recognition of the existence of such “doubt” in all cases within these two categories:
[a]Every single case in which a reviewing appellate court judge or California Supreme Court justice formally disagreed with the judgment being deemed Constitutionally valid; reliable enough to affirm (i.e. all cases in which there was dissent or the opinion that the law requires relief be granted).
[b]Every single case in which the prisoner made the federally required showing of the denial of a Constitutional right and won one or more CERTIFICATES OF APPEALABILITY (COA). The threshold for a COA is high (even more so post-EDPA) and can only be met when the prisoner makes the “substantial showing” of the denial of a Constitutional right. That showing amounts to an official recognition of doubt. It is official proof that some judge(s) and their clerks have agreed the prisoner has proved they are valid, weighty questions about the reliability of the judgment and that there’s “substantial” proof his/her Constitutional rights were violated.
Such doubt about convictions’ reliability has to be made to matter if a system’s personnel are truly civilized. For civilized personnel are decent enough to let this reality matter: Had these prisoners the benefit of money, it would have paid for university and law school trained lawyers to win them more than the mere acknowledgement of doubt about their cases, which they proved, by themselves.
This can/should be teamworked into win-win-win all the way around, except for Ron DeSantis. Let your bright staff fine tune the specifics after which the Legislature is likely to be more than willing to cooperate on an urgent basis.
Thank you for your fair consideration and willingness to envision an extraordinary opportunity and just outcome.
