The Failed Failsafe: The Politics of Executive Clemency
2003; University of Texas School of Law; Volume: 8; Issue: 2 Linguagem: Inglês
ISSN
1930-2045
Autores Tópico(s)Law, Rights, and Freedoms
ResumoI. INTRODUCTION This Article discusses the role of executive clemency in light of the current political environment. Attending to the political aspects of the capital litigation process gives insight into the trends in the use of executive clemency. Focusing particularly on the form of clemency decision made by a governor after a non-binding recommendation from the Board of Probation and Parole (as in Missouri), it is clear that although party affiliation does not make a difference, other political considerations do seem to be influential in determining outcomes. The Article's conclusions look toward the winds of change in the politicalsocial circumstances that may shift popular opinion to encourage the granting of more clemency requests in capital cases. In Herrera v. Collins, the U.S. Supreme Court acknowledged that although the criminal justice system is fallible, the integrity of the judicial system is protected by the executive branch through the mechanism of executive clemency.1 Executive clemency, justice Rehnquist declared, is the fail-safe in the legal system that prevents miscarriages of justice.2 This Article explores the counter possibility that executive clemency is so fraught with political considerations that governors, like politicians, prosecutors, and judges, are reluctant to act when correction is necessary. The clemency petition is the final appeal in a capital case before an execution and is submitted to the governor and/or decision-making board. Clemency may be granted in the form of a reprieve, a commutation or a pardon. A reprieve is a stay of execution, granting time in order to consider other issues, possibly in other jurisdictions. A commutation of sentence is a reduction of the penalty, usually to a life without parole sentence. A pardon is a complete absolution of guilt for a crime, which also releases the prisoner from the penalty for the crime. Although pardons now rarely occur in death penalty situations, before Furman v. Georgia3 commutations were a more routine occurrence, granted in as many as 25 percent of death penalty cases. Reasons for granting clemency varied and included: 1. proof of actual innocence; 2. violation of prevailing standards of decency (such as diminished mental capacity, retardation, intoxication, or minority); 3. an express request by the prosecution; 4. guilt is in doubt; 5. disparate proportionality or equity in punishment among equally guilty codefendants; 6. the public has shown conclusively albeit indirectly that it does not want any death sentences carried out; 7. a non-unanimous vote by the appellate court to uphold a death sentence conviction, leaving disturbing doubt about the lawfulness of the death sentence; 8. the statutes under which the defendant was sentenced to death are unconstitutional; 9. mitigating circumstances; 10. rehabilitation of the offender while on death row undermines the rationale for carrying out the death penalty; 11. the death penalty is morally unjustified; or 12. fairness of trial (such as eyewitness testimony, perjury by real killers, confessions).5 Since re-instatement of the death penalty in 1976 there have been 223 clemencies granted6 and 875 executions.7 However, when commutations granted by governors exiting office are excluded, only 35 clemencies have been granted since Gregg v. Georgia re-instituted the death penalty in 1976. This represents a ratio of 1 clemency for every 24 executions. Thus, in the post-Gregg period, the great majority of clemencies are granted at the end of the executive term, suggesting a clear connection between political considerations and the denial of clemency.9 This scarcity of grants of clemency is evident in Missouri, where 60 persons have been executed since re-instatement and only 2 persons have received commutations.10 Given the rise in salience of crime, law and order, and the death penalty in political campaigns since the late 1960s, it is reasonable to suspect that the dramatic decline in granting clemencies is tied to the political agenda of elected officials and their perception that public opinion strongly favors capital punishment. …
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