Merciful Justice: Lessons From 50 Years of New York Death Penalty Commutations

• Author: Talia Harmon,James R. Acker,Craig Rivera
• Published date: 01 June 2010
• Date: 01 June 2010
• DOI: 10.1177/0734016809348361
• Subject Matter: Articles

Merciful Justice: Lessons

From 50 Years of New York

Death Penalty Commutations

James R. Acker,

1

Talia Harmon,

2

and Craig Rivera

2

Abstract

This article examines the reasons offered by seven New York governors in justification of their

decisions to commute death sentences in 159 cases between 1920 and 1970. In doing so, it

scrutinizes the common assertion that, in marked contrast to contemporary death penalty cases,

merciful considerations once were bountiful in sparing condemned offenders from execution. An

examination of the New York governors’ reasons for granting clemency and the legal context

within which their decisions were made suggests that mercy accounted for few death sentence

commutations during this time period and that other considerations predominated. To the

extent that the New York experience resembles that of other states historically, the analysis

suggests that the comparatively infrequent use of executive clemency in contemporary capital

cases may owe more to the significant differences in death penalty laws and their administration

during the different eras than to a diminished role for mercy.

Keywords

clemency, death penalty, commutation, mercy, execution

Introduction

Executive clemency during the modern era of capital punishment has roundly been proclaimed to be

part of a dying breed, as dormant as the spirit of mercy that once inspired it and a casualty of politics

that equate a reluctance to implement the death penalty with being soft on crime and hence a form of

electoral suicide. This broad assessment is inviting, if not credible in individual cases. Yet, it

ultimately is grounded on assumptions that merit closer scrutiny. As we consider the function and

comparative frequency of executive clemency in contemporary and older death penalty regimes,

we must be mindful that significant legal developments have affected the scope and administration

of capital punishment. These changes, in turn, prompt particular examination of the premise that

mercy once reigned but has largely been supplanted as a justification for commuting death

sentences.

1

School of Criminal Justice, University at Albany, Albany, New York

2

Department of Criminal Justice and Criminology, Niagara University, New York

Corresponding Author:

James R. Acker, School of Criminal Justice, University at Albany, 135 Western Avenue, Albany, NY 12222.

Email: acker@albany.edu

Criminal Justice Review

35(2) 183-199

ª2010 Georgia State University

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DOI: 10.1177/0734016809348361

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183

Distinguishing merciful considerations respecting punishment from those more appropriately

ascribed to justice ‘‘has bedeviled philosophers since Aristotle’’ (Dolinko, 2007, p. 349). This task

is nevertheless facilitated by contrasting retributive perspectives of justice and mercy’s essential pre-

mises. Retributive justice grounds punishment on what an offender deserves, as measured by ‘‘his

culpability combined with the harm he has caused’’ (Garvey, 2004, p. 1324). It is backward looking,

rooted in the time the offense was committed and indifferentto subsequent developments such as the

offender’s remorse, reformation,or suffering (Morrison, 2005, p.19). In this context, justice is served

when punishment is ‘‘tied to the offender’s choice to commit the crime, [and] to the severity of the

crime’’ (Markel, 2004,pp. 1435-1436). In contrast,mercy involves ‘‘theremission of deserved punish-

ment, in partor in whole, to criminal offenderson the basis of characteristicsthat evoke compassion or

sympathy but that are morally unrelated to theoffender’s competence and ability to choose to engage

in criminal conduct’’ (Markel, 2004, p. 1436; see also, Arrigo & Williams, 2003, pp. 614-618).

We delve more deeply into issues of justice and mercy as we catalogue the reasons offered by

seven New York governors for granting clemency to 159 death-sentenced offenders in that state over

the half century spanning 1920 through 1970. We first briefly review the origins of executive clem-

ency and its traditional purposes, along with evidence of its historical use in capital cases. We under-

take our analysis of the New York clemency decisions while also making note of the broader legal

context in which governors acted. The resulting portrait offers insights about the interdependent

nature of the imperative to do justice, the power to be merciful, and the laws that define capital

crimes and govern capital sentencing decisions. We cautiously suggest, mindful of the jurisdictional

and temporal limitations of our study, that the apparent decline of humanitarian-based clemency in

the modern death penalty era quite plausibly evinces the diminished need for executive authorities to

intervene in the interests of justice rather than a calcified attitude toward mercy.

Clemency: Purposes and Prevalence in Capital Cases

Executive clemency powers encompass the authority to issue pardons, which forgive or erase guilt

or criminal responsibility; to commute criminal sentences by reducing their severity, an act that

leaves the offender’s conviction undisturbed; and to issue reprieves, which temporarily delay the

effect of a punishment, typically to enable further consideration of some aspect of it (Moore,

1989, pp. 4-5; National Governors’ Association Center for Policy Research, 1988, pp. 3-7). Each

form of clemency can have important consequences. In capital cases, however, clemency decisions

most commonly involve whether a death sentence should be commuted to life imprisonment.

Clemency authority has venerable roots extending to ancient Greece and Rome. It is deeply

embedded in Anglo-Saxon jurisprudence, dating at least to the seventh century in England. It

became recognized as the exclusive prerogative of the Crown by 1535 and the reign of Henry VIII,

although Parliament assumed coterminous power to issue pardons in the 18th century. Royal

governors, acting as agents of the King, exercised clemency powers in colonial America. In the

aftermath of the Revolution, however, in an era awash with distrust of executive authority, several

states denied governors autonomy in making clemency decisions. They either conditioned such

action on legislative approval or else vested clemency powers exclusively within the legislature

(Abramowitz & Paget, 1964, pp. 139-141; Kobil, 1991, pp. 583-590; Moore, 1989, p. 17).

The federal Constitution nevertheless ceded sole clemency powers to the President. Over time,

most but not all states adopted analogous models. Thus, governors are entrusted with essentially

unfettered clemency authority in 22 of the 35 states that presently authorize capital punishment.

1

Governors in eight states have the power to commute a death sentence if and only if a board of

pardons or similar entity so recommends, but they are not obliged to act on affirmative recommen-

dations.

2

A pardons board or analogous body makes clemency decisions in the remaining five death

penalty states,

3

although governors generally have a measure of authority in determining the

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