Chapter 11 Beyond Adjudication: Clemency, Innocence Commissions, and the Aftermath of Exoneration

• Jurisdiction: United States

Chapter 11 Beyond Adjudication: Clemency, Innocence Commissions, and the Aftermath of Exoneration

A. Introduction

The courts, through trials and pretrial proceedings, are primary in determining whether individuals who have been charged with crimes are in fact guilty of committing them. Through appeals and post-conviction review, the courts also are primary in deciding whether individuals found guilty of crimes were convicted erroneously. While attention to procedural error is the norm, appeals and collateral challenges also can test the sufficiency of the evidence supporting a conviction. Subject to compliance with statutory prerequisites, post-conviction proceedings allow defendants to introduce newly discovered evidence of innocence. Judicial remedies for erroneous convictions normally include reversal and ordering a new trial, or outright dismissal of charges. We now turn our attention beyond these staples of the judicial process to explore alternative avenues for detecting, re-examining, and correcting wrongful convictions, and to consider additional remedies that may be available to innocent people who have been convicted and punished in error. We will examine executive clemency, innocence commissions, and issues that confront individuals in the aftermath of exoneration, including adjusting to life following wrongful conviction and imprisonment, and securing compensation.

B. Executive Clemency

In Chapter 2, we considered Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the important Supreme Court case in which Leonel Herrera, who had been convicted of murder and sentenced to death in a Texas state court, sought federal habeas corpus relief based on his claim that he was innocent. Herrera argued that to allow his execution to go forward would violate his Due Process rights and his Eighth Amendment right to be free from cruel and unusual punishments. Chief Justice Rehnquist's opinion for the Court assumed, "for the sake of argument" (506 U.S., at 417), that the federal Constitution would be offended by the execution of an innocent person. However, a majority of the justices agreed that the evidence offered in support of Herrera's petition "falls far short" of the "extraordinarily high" threshold to be satisfied before a federal court would be authorized to examine a claim of actual innocence on habeas corpus (506 U.S., at 417). Such a demanding showing would be required "because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States" (506 U.S., at 417).

While strongly discouraging judicial review of "free-standing" claims of actual innocence, Chief Justice Rehnquist's opinion observed that Herrera was not "left without a forum to raise his actual innocence claim" (506 U.S., at 411).

For under Texas law, petitioner may file a request for executive clemency. Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted....
Executive clemency has provided the "fail safe" in our criminal justice system.... [H]istory is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence. 506 U.S., at 411-415 (cites and footnotes omitted).

While judicial review of convictions necessarily adheres to rules of law, executive clemency is discretionary and subject to no such constraints. Indeed, clemency decisions often explicitly embrace extralegal considerations.¹ "[T]he heart of executive clemency ... is to grant clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations." Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 280-281, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (plurality opinion). As noted by the Court in Herrera, doubts about the reliability of a conviction represent one time-honored reason for grants of executive clemency.

Clemency can take various forms, including a reprieve (a delay for a specified period of time in carrying out a punishment, normally to allow for its review); a commutation (a reduction of punishment, such as from death to life imprisonment); and a pardon (which forgives or nullifies a judgment of guilt or criminal responsibility).² Logically, an innocent person who suffered a criminal conviction would be an appropriate candidate for a pardon. Yet, the line demarcating "doubts about guilt" and "actual innocence" can be elusive. And precisely because clemency decisions are not rule-bound, and are subject to political and many other influences, a pardon might not issue even in the face of compelling evidence that an individual was wrongly convicted. A grant of clemency in such cases thus might take the alternative form of a commuted sentence, or be withheld altogether. Such decisions presumptively are not reviewable by the courts.³

Clemency authority exists under federal law and in all states, although it resides in various officials or administrative bodies. The United States Constitution vests that authority in the President, providing in Art. II, § 2[1] that the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Most states grant their governors exclusive clemency authority, although in several the governor must first consider (but is not bound by) the recommendation made by a board of pardons or analogous administrative body, which typically is appointed by the governor. In a few states, the governor can grant clemency if and only if a board of pardons first makes a favorable recommendation, and in some states—including a few that have experienced scandals—clemency powers inhere in a pardon board alone rather than the governor.⁴

In an earlier era, distinguished by limited procedural safeguards, the unavailability of appeals, and mandatory sentencing, executive clemency was an integral part of the criminal justice process. For example, in England toward the turn of the 19th century, the Crown regularly spared condemned offenders from the gallows, commuting as many as seven out of every eight death sentences imposed.⁵ Capital case clemency decisions varied markedly throughout the United States in the era preceding Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Commutations were relatively common in some states; for example, North Carolina governors reduced 229 out of the 585 (39.1%) death sentences imposed in the state between 1903 and 1963 to life imprisonment, as did Texas governors in 100 of the 461 (21.7%) death sentences they reviewed between 1923 and 1972.⁶ More recently, however—with the notable exception of former Illinois Governor George Ryan's pardoning four individuals under sentence of death and issuing a blanket commutation of 167 capital offenders' sentences in that state in 2003, and other widespread death row commutations in New Mexico, Ohio, New Jersey, and again in Illinois in 2011 when its death penalty law was repealed—there has been a decided decline in capital case clemency.⁷ The Death Penalty Information Center reports that "[s]ince 1976, 288 death row inmates have been granted clemency for humanitarian reasons"—reasons which "include doubts about the defendant's guilt or judgments about the death penalty by the governor."⁸ However, excluding Governor Ryan's and four other governors' "broad grants of clemency,"⁹ the number of such commutations drops to 85, compared to (through August 1, 2018) 1479 executions.¹⁰ Heightened procedural protections and intensive judicial scrutiny associated with post-Furman capital cases are plausible factors in helping explain the reduction in clemency,¹¹ although executive officials' concerns about being perceived as soft on crime and related political considerations have likely contributed as well.¹²

Death-sentenced prisoners represent a tiny fraction of individuals convicted of crimes. And, as we have noted, a pardon rather than a commuted sentence is the type of clemency that logically would be available to persons wrongfully convicted of crimes. Statistics describing the commutation of capital sentences thus are not as informative for our purposes as would be data about grants of executive clemency in criminal cases generally, especially clemency decisions grounded on possible innocence. Unfortunately, such information is not readily available. One scholar, relying on available statistical compilations, noted:

At both the state and federal level, grants of executive clemency have plummeted in recent decades. For much of the nation's history, clemency was used routinely at the federal level. But the percentage of federal grants of clemency applications has declined sharply, with the biggest drop occurring from President Nixon's presidency until today. State level pardons have also fallen in recent decades. "Pardons are granted on more than a token basis in only 13 states and are a realistically available remedy in only about half of those." This same time period has been characterized by the dominance of tough-on-crime politics, and one cannot deny the relationship between this trend and the decline of executive clemency. No governor or President wants to be viewed as soft on crime or to be blamed if a pardoned individual goes on to commit another crime.¹³

Concerns about "tough-on-crime politics" or that a pardoned individual might commit "another" crime, of course, are not logically warranted when clemency is used to remedy an innocent person's wrongful conviction. Nevertheless, in politics as in other callings, perceptions matter. Executive officials often grapple with the risk of adverse public reaction and...