San Diegans became incensed all over again when Esteban Nuñez was released this week after spending less than six years in prison for participating in the stabbing death of Mesa College student Luis Santos. Nuñez is the son of Fabian Nuñez, the former state Assembly Speaker who was buddies with former Gov. Arnold Schwarzenneger. On his last day in office in 2011 the then-and-again action movie star commuted the sentence of the son of his political pal.
Esteban Nuñez and co-defendant Ryan Jett pleaded guilty to voluntary manslaughter and assault in 2008. Jett is still serving a 16-year sentence.
“Of course you help a friend,” Schwarzenneger infamously told the media.
This sort of political cronyism boils the blood. If your dad is a well-connected politician you can escape the clutches of the system. Nobody’s crying for Jett to be sprung, but if your pops doesn’t hang with The Governator you rot in jail.
The San Diego District Attorney’s Office and the Santos family sued to overturn the Nunez commutation. The case went to the 3rd District Court of Appeals in Sacramento in 2012. The court concluded Schwarzenneger’s decision showed “back-room dealings were apparent.” It called the action “reprehensible” and said the former governor “was deserving of censure and grossly unjust.”
Yet it was all declared to be legally within the power of the governor of California.
Can’t this unchecked power be reined in, or at least partially remedied?
Political science professor P.S. Ruckman Jr. has some insight. He teaches at Rock Valley College in Illinois and authors the Pardon Power Blog. Ruckman created a database of every political pardon on the federal level since 1789 (the exact number is impossible to pinpoint but is greater than 30,000), and is a media expert on state-level clemency.
He believes such programs at the executive level are “an important part of the criminal justice system, since our legislative and judicial branches are definitely not perfect.”
Indeed, Alexander Hamilton and the founding fathers saw fit to include pardon power in the Unites States Constitution.
Ruckman is critical of Wisconsin Gov. Scott Walker for recent public declarations that he will never issue any pardons (Walker was called upon by national petition to reconsider the imprisonment of Steven Avery, whose incarceration is the subject of the Netflix documentary series Making A Murderer). Aside from Walker, Ruckman says clemency is trending higher in states, including issuances from Gov. Jerry Brown. California’s governor regularly pardons about 100 former convicts per year—primarily individuals who have been out of jail for a decade and have received a Certificate of Rehabilitation.
Ruckman notes that the political left and the right agree that prison overcrowding is an issue and that clemency is slowly rising in cases that involve nonviolent drug charges.
“Rarely, though, is a commutation granted to a violent criminal, as was the case with Arnold Schwarzenneger,” says Ruckman. “My slant is that celebrities and relatives of public officials deserve justice as much as anybody. But if you’re stingy with pardons and commutations, like Schwarzenneger had been, that makes a case like this obnoxious and invites well-deserved skepticism.”
Note: Stemming from the Santos case, California law now requires a governor give victims and prosecutors 10 days notice before issuing a commutation.
As of December 2015, at least half a dozen states administer the power of pardons by an independent board, notes Ruckman, and 20 other states have advisory boards. He adds that it’s extremely difficult to extract data or identify trends about clemency policies around the country—but if a state has made a change in the recent past it has been to create an independent board.
Altering gubernatorial clemency oversight would require a change to the state constitution. An independent board might not solve all the problems related to pardons and commutations. But the Nuñez case should be a call to action to legitimize a system that can be inconsistent and arbitrary, and leaves an opening for back-room deals.