On lawful lawlessness: George Ryan, executive clemency, and the rhetoric of sparing life.

• Author: Sarat, Austin
• Position: Illinois Governor George Ryan

INTRODUCTION I. CLEMENCY AND SOVEREIGNTY: A LEGALLY SANCTIONED ALEGALITY II. THE JURISPRUDENCE OF CLEMENCY III. THE RHETORIC OF SPARING LIFE A. I Feel Your Pain B. We Are All Victims of a Failed System C. I Am a Victim of a Political System that Will Not Act CONCLUSION "The right to pardon a criminal, either by mitigating or by entirely remitting the punishment, is certainly the most slippery of all the rights of the sovereign. By exercising it he can demonstrate the splendor of his majesty and yet thereby wreak injustice to a high degree. With respect to a crime of one subject against another, he absolutely cannot exercise this right, for in such cases exemption from punishment constitutes the greatest injustice toward his subjects."

--Immanuel Kant (1)

"[W]hat renders the 'I forgive you' sometimes unsupportable or odious ... is the affirmation of sovereignty."

--Jacques Derrida (2)

INTRODUCTION

On January 11, 2003, Governor George Ryan of Illinois emptied that state's death row by exercising his clemency powers under the state constitution, first pardoning four, and then commuting 167, condemned inmates' sentences in the broadest attack on the death penalty in decades. (3) Ryan's act was the single sharpest blow to capital punishment since the United States Supreme Court declared it unconstitutional in 1972, a ruling that caused approximately 600 death sentences across the nation to be reduced to life in prison. It was also a dramatic reminder of the powers of chief executives at the state and federal level to grant clemency and, in so doing, to spare life. (4)

Not surprisingly, Ryan's decision drew impassioned responses from all sides of the death penalty debate and all parts of the political spectrum. (5) Some lionized him for his courage and for what they saw as an important step on the road to abolishing capital punishment. (6) Others vilified him for making a mockery of murder victims, (7) undermining democracy, (8) using "raw power to cut down the law itself," and making law meaningless. (9)

Such criticism has been a repeated response to other uses of executive clemency, and it has taken its toll, especially on the exercise of clemency in capital cases. (10) Across the nation, the long-held constitutional right of chief executives to bestow mercy has "died its own death, the victim of a political lethal injection and a public that overwhelmingly supports the death penalty." (11) Thus, at the outset of his administration, then-Texas Governor Bush embraced a standard for clemency that all but ensured that few if any death sentences would be seriously examined. (12) Writing about Bush's views, Alan Berlow noted:

"In every case," [Bush] wrote in A Charge to Keep, "I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?" This is an extraordinarily narrow notion of clemency review: it seems to leave little, if any, room to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, the competence of the legal defense, or disparities in sentences between codefendants or among defendants convicted of similar crimes. Neither compassion nor "mercy," which the Supreme Court as far back as 1855 saw as central to the very idea of clemency, is acknowledged as being of any account. (13) Similarly, when he was Governor of Arkansas, Bill Clinton explained his reluctance to grant clemency by saying: "The appeals process, although lengthy, provides many opportunities for the courts to review sentences and that's where these decisions should be made." (14)

The Bush and Clinton views were, and are still, very much the norm. (15) The result is that "at the same time the number of death sentences and executions has increased the number of clemency grants has decreased." (16) During the 1990s, from one to three death row inmates were granted clemency every year in the entire nation--compared to approximately sixty to eighty executions each year. (17) This is a dramatic shift from several decades ago, when governors granted clemency in 20% to 25% of the death penalty cases they reviewed. In Florida, one of the pillars of the "death belt," governors commuted 23% of death sentences between 1924 and 1966, yet no Florida death penalty sentences were commuted in the 1990s. (18)

Rejecting appeals from the Pope, Mother Teresa, televangelist Pat Robertson, former prosecutors, and even judges and jurors in death cases, governors now reserve their clemency power for "unusual" cases in which someone clearly has been unfairly convicted. (19) To some extent this is because of the political climate surrounding the death penalty. While during the 1950s and 1960s about 50% of the public supported the death penalty, today polls show the public overwhelmingly approves of it. (20) As a result, many politicians have used the death penalty in their campaigns, promising more and quicker executions. (21) As Richard Dieter, executive director of the Death Penalty Information Center, observes, this is "the answer to the public's fear of crime, so (clemency) just goes against the grain." (22)

In what follows, we take up the concerns of Ryan's critics, especially their concerns about clemency's lawlessness, and offer a symptomatic reading of Ryan's clemency statement as a framework to examine larger questions of sovereignty and state killing, clemency and constitutional democracy. We argue that clemency is best understood as a form of "legally sanctioned alegality," (23) that theorists and judges alike have identified the ambivalence and instability that clemency introduces into the fabric of legality, and that neither jurisprudence nor legal theory can resolve that ambivalence and instability. We highlight the structural similarity of clemency to the emergency powers of chief executives and argue that each precipitates anxiety in the face of its exercise.

In Part I we provide a broad theoretical context for Ryan's act, examining the relationship of sovereignty, clemency, and law. We suggest that with regard to executive clemency law recognizes, albeit ambivalently, its own limits and concedes that it cannot regulate adequately what it authorizes. The existence of such a particular--and perhaps, in a constitutional democracy, peculiar--form of sovereign prerogative serves as a powerful reminder of the still relevant distinction between lawfulness and the rule of law. Indeed, for us, absent such a reminder of the occasional gap between law and predictive rules, it is impossible to understand some of the anxieties that attend the exercise of sovereign prerogative in a modern constitutional democracy.

In Part II we show how this lawful lawlessness plays out in the jurisprudence of clemency. Examining cases from 1833 to the present reveals clemency's legal indeterminacy, its status in the borderland of legality. Part III takes up the rhetoric of Ryan's "I Must Act." We read it in light of our earlier claims about clemency's liminal status and with a sense of the particular political and cultural context in which it was articulated. Attending carefully to the rhetoric of Ryan's clemency announcement undermines some criticism of the kinds noted above while precipitating other concerns about sovereignty and state killing. It shows him struggling to come to terms with clemency's lawful lawlessness and to find an idiom adequate to provide a foundation for his decision.

In the end, we conclude that Ryan's action was neither bold nor lawless. While it could neither resolve the contradictions that attend executive clemency in a constitutional democracy nor allay the anxieties attendant to its exercise, it lent itself easily to positions taken by conservative politicians and judges concerning the role of clemency in America's capital punishment system. It put a disciplined, domesticated, fragile sovereignty on display.

1. CLEMENCY AND SOVEREIGNTY: A LEGALLY SANCTIONED ALEGALITY

   In recent years, critical attention has once again turned to the question of sovereignty. Prompted in large part by the complex political and economic processes of globalization, scholars have offered reappraisals of some of the elements, such as jurisdiction and regulation, of the more conventional conception of the sovereignty of the modern nation-state. (24) Our interest in executive clemency in capital punishment cases, however, leads us to a different cluster of theorists, for whom decisions over life and death are the constituent conditions of ancient and contemporary sovereignty. For these theorists, the original definition of sovereignty in the West comes from the Roman law maxim--vitae et necis potestatem--the power over life and death. Thus the opening sentence of Michel Foucault's final section of the History of Sexuality: An Introduction declares that "[f]or a long time, one of the characteristic privileges of sovereign power was the right to decide life and death." (25)

   Nor does the Anglo common law tradition remain impervious to such a definition. The great English seventeenth-century common law authorities, such as Lord Coke, even as they tried to curb and contain such a power, acknowledged its existence, particularly for the new colonies attained by conquest. Hence in Calvin's Case, Lord Coke suggested, "[F]or if a King come to a Christian Kingdom by conquest, seeing that he hath vitae et necis potestatem, he may at his pleasure alter and change the laws of that kingdom." (26) In a modern, constitutional democracy, of course, such a power is no longer associated with a king or a single authority. But as the continuing existence of capital punishment in the United States reminds us, the sovereign right to kill is far from being extinguished.

   Much has been said and written about the power to kill within the confines of modern law; (27) the punishment of death has been...