by Mike Brodheim

In one of his last official acts before leaving office in January 2011, California Governor Arnold Schwarzenegger exercised his right under the state constitution to grant clemency to Esteban Nuñez, the son of the governor’s friend, former State Assembly Speaker Fabian Nuñez. Schwarzenegger reduced Esteban’s sentence for voluntary manslaughter by more than half, from 16 to just 7 years, after he had served only six months of his prison term.

Powers of pardon and commutation are traditionally vested in the offices of governors and typically exercised, as in this case, in the last days of a governor’s term. In 2003, for example, the outgoing governor of Illinois, George Ryan, commuted all the death sentences of that state’s condemned prisoners, sparking a controversy that has yet to subside. (Ryan was later implicated in an unrelated corruption scandal; he was charged, convicted and sentenced to 6 1/2 years in prison).

In the case of former Governor Schwarzenegger, what makes his particular act of clemency controversial is the appearance of favoritism. But for the fact that Esteban Nuñez’s father is a former influential state lawmaker, his actions are no less egregious than those of many other prisoners convicted of similar crimes. In those other cases, however, rather than show leniency, Governor Schwarzenegger acted to block the release of prisoners with homicide convictions, even after the parole board had recommended their release on parole (usually after many years, if not decades, in prison).

Defending Schwarzenegger’s actions, San Diego attorney Charles Sevilla, who represented Nuñez, pointed out that the governor had acted reasonably in light of the fact that Nuñez was not the actual killer and had no prior criminal record. “Take the politics out,” Sevilla said, “and people would say it’s not an irrational act by the governor. But when you add in the fact that it’s Fabian Nuñez’s son, that perspective goes out the window.”

That may well be true, but Schwarzenegger’s actions nevertheless sparked criticism from three quarters. First, the family of Nuñez’s victim was understandably outraged. Second, Republican legislators moved quickly to propose a law that would require victim notification and input prior to similar gubernatorial acts of clemency in the future. And third, prisoners’ rights advocates criticized Schwarzenegger for acting inconsistently (and perhaps hypocritically) by blocking parole releases in dozens of cases similar to Nuñez’s; i.e., cases where the prisoner, a first-time offender, had not delivered the fatal wound but had tried to avoid detection and arrest. But unlike Nuñez had served substantial prison sentences.

Esteban Nuñez had stabbed two people while a friend fatally stabbed another victim, 22-year-old Luis Santos, in the heart. The pair then drove to Sacramento and disposed of their knives in a river. The 2008 incident occurred after Nuñez and his friends were thrown out of a fraternity party. They were originally charged with first-degree murder which carries a life sentence and which was plea bargained down to manslaughter.
According to the arrest warrant at the time, Esteban told his co-defendants: “hopefully his dad would take care of it and could get them off on self defense.” He was right, his dad did take care of it.
 The Los Angeles Times reported that in 2009 alone, Schwarzenegger had blocked the recommended paroles of 29 prisoners who had committed their crimes under circumstances similar to those surrounding Nuñez’s offense.

“I’d love to ask the Governor,” said Keith Wattley, an attorney who represents prisoners seeking parole, “what distinguishes one case from the other.” He described the former governor’s actions as “arbitrary,” then added, “[R]educing Mr. Nuñez’s sentence might have actually been the right thing to do, even if the governor did it for the wrong reasons. My problem with it is that it makes even clearer to anyone still having doubts that politics dictates prison terms, not fairness or justice.”

The Santos family later filed suit over Schwarzenegger’s failure to give them advance notice of his decision to reduce Nuñez’s sentence, arguing that he had violated victims’ rights provisions of Proposition 9, also known as Marsy’s Law, which was enacted in November 2008. Proposition 9 requires that victims be notified and afforded a chance to be heard before a prisoner’s sentence is reduced. [See: PLN, May 2009, p.12].

Ironically, Schwarzenegger had written to Santos’ family after he reduced Nuñez’s sentence and apologized for the pain he anticipated his actions would cause them. “My office definitely made a mistake in not notifying the parents beforehand ... and I’m ultimately responsible,” he said.

In an interview published in Newsweek on April 17, 2011, the former governor acknowledged his “working relationship” with Esteban’s father, Fabian Nuñez. “Well, hello! I mean, of course you help a friend,” Schwarzenegger stated, in reference to his decision to reduce Esteban’s sentence.

“This is proof that the commutation has nothing to do with legal reasons but is simply a favor to a political friend,” said Frederico Santos, Jr., Luis Santos’ father. “I’m not surprised because that’s what we said all along, that the actions were strictly for a political favor and nothing more, no matter what he was trying to claim as his justification.”

Not that there is any real doubt that politics trump justice – at least not among prisoners who have experienced first-hand how our criminal justice system works. Still, it is unusual to see it practiced so overtly in this case, and without pretense. To be rich and politically connected is definitely better than being poor and unconnected.

Sources: Los Angeles Times, Associated Press, Newsweek

Subscribe today

Already a subscriber? Login