How to Grant Clemency in Unforgiving Times

• Author: Daniel T. Kobil
• Position: Professor of Law, Capital University Law School.
• Pages: 219-241

Page 219

Daniel T. Kobil: I would like to thank Kirsten Bartholomew for her able research assistance, Jessica Poprocki, for anticipating and taking care of every detail essential to putting on the Forgiveness and the Law Symposium for which this paper was prepared, the editors of the Capital University Law Review for all of their work editing and publishing the symposium papers, and Dean Steve Bahls for his support and encouragement.

"[T]hough they would both make frequent use of the word mercy, yet it was plain that in reality Square held it to be inconsistent with the rule of right; and Thwackum was for doing justice, and leaving mercy to Heaven."

--Tom Jones by Henry Fielding¹

The line between mercy and justice is a bright one for Tom Jones' brutish tutors, Thwackum and Square. In their view, justice is concerned with ensuring the "rule of right," by punishing wrongs, while mercy undermines "just" punishment. The two concepts are mutually exclusive, and should be treated differently by those in authority: "doing justice" is properly suited to human endeavors, while dispensing mercy belongs to the realm of the divine.

Today, many in positions of authority believe that the official embodiment of mercy in America's legal system, clemency, should be used only to "do justice," in Thwackum's sense of the word. Many governors and clemency board members seem to believe that if there is a place for clemency at all in the criminal justice system, its only possible role is to remedy the most blatant judicial errors.²

This crabbed vision of clemency leads executives to deny commutations and pardons in cases that, for many, seem to cry out for mercy. Former Governor of Texas, George W. Bush demonstrated this approach when he denied the request of Karla Faye Tucker for postponement of her death sentence, despite widespread support for Tucker's plea.³ Tucker sought Page 220 clemency because she had found Christianity, had been rehabilitated, and evidently had become a completely different person from the one who had been convicted of murder, yet Bush's belief in justice as "rendering what is due" caused him to refuse her:

Karla Faye Tucker has acknowledged she is guilty of a horrible crime. . . . The role of the state is to enforce our laws and to make sure all individuals are treated fairly under those laws. The courts, including the United States Supreme Court, have reviewed the legal issues in this case, and therefore, I will not grant a 30-day delay. May God Bless Karla Faye Tucker and may God bless her victims and their families.⁴

The Thwackum parallel is unmistakable: the only legitimate role of clemency is to do justice by enforcing the "rule of right," with mercy being best left to God.

Yet this retributive conception of clemency is not the only one that has been followed. In another time and place, Karla Faye Tucker might have been considered a prime candidate for mercy. For instance, in 1990, the Georgia Board of Pardon and Paroles commuted the death sentence of murderer William Moore in a case similar to Tucker's. Moore, who had shot and killed a 77-year old man in a robbery attempt, earned clemency by admitting his guilt, embracing Christianity, and displaying a "strong and redeeming character."⁵ The former governor of Missouri, Mel Carnahan, recognized that even a vicarious plea for mercy can be a proper basis for commutation-at least when that plea is made by the Pope. Carnahan ignored retributive concerns, and in 1999 spared the life of triple murderer Darrell Mease because Pope John Paul, while visiting Missouri, had personally requested that Carnahan commute Mease's sentence.⁶

These diverging visions of how clemency should operate have long intrigued scholars, and those attending the Capital University Law Review's Page 221 2002 Symposium on Forgiveness and the Law were no exception. Although most speakers agreed that a conception of clemency which addresses both justice and mercy is desirable, there was division over the extent to which retributive grounds for granting clemency should continue to dominate exercise of the power, particularly in death penalty cases.⁷

In this essay, I will address two issues on which I parted company with my colleagues participating in the symposium, and consider a third issue that has arisen in the cases concerning the role of the courts in overseeing fairness of the clemency process. First, I will argue that giving greater attention to retributive justifications offers the best avenue for expanding the use of clemency in deserving cases. Second, I will revisit my contention advanced elsewhere⁸ that decisions about clemency for retributive reasons should be made by an expert administrative body that is insulated from political pressures, rather than by politically-sensitive public officials. Finally, I will consider an issue that was not addressed in the symposium, but which has come up frequently in recent cases, namely, whether the "minimal procedures" standard set forth in Woodard v. Ohio Adult Parole Authority⁹adequately safeguards the integrity of the clemency process.

I To What Extent Should Retributive Justifications Predominate in the Exercise of the Clemency Power?

Professor Elizabeth Rapaport has offered a forceful critique of what she has characterized as the "neo-retributivist" conception of clemency as exclusively a type of "remedial justice."¹⁰ Her view, which was seconded by other participants in the Symposium such as Margaret Colgate Love, is that a vision of clemency that expressly embraces redemptive goals offers a more complete picture of what clemency can and should be. She takes neoretributivists such as Kathleen Moore and I¹¹ to task for ignoring clemency's Page 222 historic status as a "discretionary boon," and reducing it to a quasi-judicial process for vindicating a right.¹² In her view, this notion of clemency is inadequate to address hard cases where remission of punishment is appropriate for reasons such as rehabilitation or heroic service to society.¹³

I agree with Professor Rapaport in large part. An exclusively retributive account of clemency inadequately addresses many situations where we have historically thought remission of punishment to be desirable on utilitarian grounds. For instance, it is difficult to justify retributively the post-war amnesties that have been used by various Presidents to mend divisive wounds in the national body politic, such as the blanket pardons extended by President Andrew Johnson to those who fought against the union in the Civil War.¹⁴ In a retributive sense, these acts of clemency are unjust because they undermine the principle of comparative justice by treating some offenders (those pardoned for acting against the government) differently than others (those executed or imprisoned for treason prior to the clemency grant). Yet few, myself included, would argue that such utilitarian remissions of punishment are illegitimate: we have always used the power in this way, and it is one of the principal reasons that clemency is included in the U.S. Constitution.¹⁵

A more difficult case is presented where clemency is sought to be justified for redemptive reasons, but ultimately I believe that clemency should be used to further these goals as well. Indeed, that is why I have argued that a politically-accountable executive must retain unbridled discretion to use the clemency power in what I have termed "justice-neutral" ways.¹⁶ As Professor Page 223 Rapaport's example of Precious Bedell,¹⁷ as well as the cases of Karla Faye Tucker and William Moore, make clear, there are sometimes compelling redemptive grounds for remitting punishment that is "deserved" in the retributive sense. When we characterize clemency as only justifiable for retributive reasons, we, like Thwackum, also deny the possibility of moral redemption (at least here on earth). Likewise, we presume that those officials entrusted with exercising the clemency power are incapable of making discerning judgments about profound changes in individual character. In that both of these assumptions are at the very least open to debate,¹⁸I am not convinced that we should disregard millennia of human experience and reject the use of the clemency power to further redemptive ends.

But notwithstanding the desirability of these justice-neutral ends, I believe that the current decline in the use of the clemency power illustrates why a retributive theory of clemency should dominate the debate if clemency is to survive into the 21^st Century. To put it bluntly, we have little chance of persuading those in authority to use clemency to further redemptive goals when, at the moment, most are reluctant to use clemency at all. In my view, employing clemency to achieve retributive ends (which even ardent proponents of capital punishment can support) offers the best chance of reviving a safeguard that has fallen dangerously into disuse.

Although comprehensive empirical studies are lacking, there is little doubt that in recent decades, there has been an atrophy of the clemency power at the state and federal levels. Leaving aside a handful of moratoriums on capital punishment that have recently been imposed,¹⁹ commentators agree that there has been a sharp decline in grants of clemency in capital cases, since 1976, when the Supreme Court reinstituted the death penalty.²⁰ Page 224

Heightened media scrutiny of capital clemency decisions, coupled with the realization by public officials that a decision to commute a death sentence amounts to political suicide,²¹ undoubtedly are factors contributing to the...