Clemency in a Time of Crisis

• Publication year: 2010

Georgia State University Law Review

Volume 28 . .

Article 6

Issue 4 Summer 2012

4-3-2013

Clemency in a Time Of Crisis

Cara H. Drinan

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Recommended Citation

Drinan, Cara H. (2011) "Clemency in a Time Of Crisis," Georgia State University Law Review: Vol. 28: Iss. 4, Article 6. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss4/6

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CLEMENCY IN A TIME OF CRISIS Cara H. Drinan*

Abstract

At the state level, the power to pardon or commute a criminal sentence—that is, to grant clemency—is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether. In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at the state level today. Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications. Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds. Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically. In Part III, I address questions of implementation. If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits? How can those executive actors best be insulated from political pressure? In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform.

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Introduction

Every state grants the governor or some executive body the power to grant clemency—that is, the power to pardon or commute a criminal sentence.¹ This power is deeply rooted in American history,² and as recently as the first half of the twentieth century, clemency grants were a regular feature of our criminal justice system.³ Even in states with traditionally high execution rates, governors granted clemency to death row inmates in a substantial number of cases. For example, between 1923 and 1972 Texas executed 461 people, but during the same time period, Texas governors commuted 100 capital sentences.⁴ Today, state clemency grants have all but disappeared from the political landscape.⁵ Since 1976, when the United States reinstated the death penalty,⁶ Texas has executed 477 people, while its governors have granted clemency for only two inmates.⁷ Some capital states have not commuted any death sentences in the post-Gregg- era.⁸ I discuss a few notable exceptions later in this Article,

* Associate Professor, Columbus School of Law, The Catholic University of America. This paper was presented at the Georgia State Law Review Symposium on January 27, 2012. I received helpful comments from other Symposium participants and from Anne Traum and Megan La Belle. Justin D'Aniello, Elizabeth Edinger and Jennifer Pollack provided diligent research assistance.

1. Kathleen Ridolfi & Seth Gordon, Gubernatorial Clemency Powers: Justice or Mercy?, Crim. Just., Fall 2009, at 31-32.

2. See generally Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 583-605 (1991) (discussing history and origins of clemency).

3. James R. Acker & Charles S. Lanier, May God—or the Governor—Have Mercy: Executive Clemency and Executions in Modern Death-Penalty Systems, 36 Crim. L. Bull. 200, 212-13 (2000).

4. Id. at 213 tbl.1.

5 . See generally Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins, 33 N.M. L. Rev. 349, 353-66 (2003) (discussing the general decline and offering explanations).

6. In 1976, the Court determined in three separate cases, referred to as "the Gregg decision," that state statutes provided sufficient guided discretion to juries imposing death sentences and that the death penalty was constitutional. See Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976). With these decisions, a more than ten-year moratorium on the death penalty in America came to an end. See Convicted Georgia Murderer Facing Execution on July 1, N.Y. Times, June 18, 1980 (identifying Gary Gilmore as the first inmate to be executed in the post-Gregg era).

7. See State by State Database, Death Penalty Info. Ctr, http://www.deathpenaltyinfo.org/state_by_state (select "Texas" from drop down menu) (last visited

Dec. 1, 2011).

8. For example, no capital sentences have been commuted in either Arizona or Mississippi since 1976. See Id. (select "Arizona" or "Mississippi" from drop down menu).

but the overall decline in state clemency grants is consistent and pronounced.⁹

This anemic notion of state clemency is misguided—even when the criminal justice system is functioning fairly and efficiently.¹⁰ Clemency is designed to serve several laudable goals: it "serve[s] as a check on the judiciary;"¹¹ it enables error-correction in a criminal justice system fraught with mistakes;¹² it may "afford relief from undue harshness;"¹³ and it "help[s] ensure that justice is tempered by mercy."¹⁴ Moreover, as Justice Kennedy explained in his 2003 address to the American Bar Association, "[a] people confident in its laws and institutions should not be ashamed of mercy."¹⁵ Under the best of circumstances, clemency acts as a safety valve and enables gestures of compassion.

However, when the criminal justice system is a shambles—as ours is today—the case for clemency is even stronger. By all accounts, the

9. Michael Heise, Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure, 89 Va. L. Rev. 239, 251 (2003) (noting the decline in and infrequent use of clemency from 1973 to 1999).

10. In this Article, I focus on the need to revitalize state clemency practice, but scholars have noted the infrequent use of clemency at the federal level and have urged reform of the presidential pardon power. See, e.g., Douglas A. Berman, Turning Hope-and-Change Talk into Clemency Action for Nonviolent Drug Offenders, 36 New Eng. J. on Crim. & Civ. Confinement 59 (2010); Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010).

11. Michael A.G. Korengold, Todd A. Noteboom & Sara Gurwitch, And Justice for the Few: The Collapse of the Capital Clemency System in the United States, 20 Hamline L. Rev. 349, 356 (1996).

12. For example, 289 post-conviction DNA exonerations have occurred in the United States. See Facts on Post-Conviction DNA Exonerations, Innocence Project, http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php (last

visited Feb. 8, 2012).

13. United States v. Angelos, 345 F. Supp. 2d 1227, 1261 (D. Utah 2004) (quoting Ex Parte Grossman, 267 U.S. 87, 120 (1925)).

14. Cavazos v. Smith, 132 S. Ct. 2, 7 (2011). See generally Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L. Rev. 1332, 1359-62 (2008) (explaining the unique role that clemency and jury nullification can play today when judges have little freedom to treat defendants as individuals).

15. Justice Anthony Kennedy, Speech at the Am. Bar Ass'n Annual Meeting (Aug. 9, 2003), available at http://www.abanow.org/2003/08/speech-by-justice-anthony-kennedy-at-aba-annual-meeting/. Regarding clemency, Justice Kennedy went on to say:

The greatest of poets reminds us that mercy is 'mightiest in the mightiest. It becomes the throned monarch better than his crown.' I hope more lawyers involved in the pardon process will say to Chief Executives, "Mr. President," or "Your Excellency, the Governor, this young man has not served his full sentence, but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him liberty."

Id.

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American criminal justice system is in need of an overhaul.¹⁶ The Sixth Amendment right to counsel, meant to safeguard the liberty interests of indigent criminal defendants, has been widely described as more of a myth than a reality in practice.¹⁷ States regularly flout their constitutional obligations under the Sixth Amendment,¹⁸ while defendants rarely, if ever, have a chance to seek redress in federal court.¹⁹ At the same time, with more than two million adults and children behind bars,²⁰ the United States leads the world in its rate of incarceration.²¹ Our prisoners serve longer sentences than they ever have before,²² and our states spend hundreds of millions of dollars each year to maintain their corrections systems.²³ In short, "[o]ur resources are misspent, our punishments too severe, our sentences too long."²⁴

16. Numerous reports and articles have documented the nation's criminal justice failures, including its over-reliance on incarceration, failure to protect the rights of poor criminal defendants, disproportionate impact upon people of color, and failure to enable rehabilitation and reentry into society. See generally Am. Civ. Lib. Union, Smart Reform is Possible (2011) [hereinafter Smart Reform is Possible], available at www.aclu.or...