Tuesday, April 1, 2008

Scholarship: Clemency Powers and the Death Penalty

Last week, Professors Linda E. Carter and Mary-Beth Moylan of McGeorge School of Law (University of the Pacific) testified before the California Commission on the Fair Administration of Justice. Their testimony was supported by a remarkable document, a paper entitled, "Clemency in Capital Cases," which focused primarily on the death penalty in the State of California, procedures for clemency petitions in that state and reasons that have been offered in the past for granting or denying clemency. An additional section discusses clemency and death penalty cases in five other states (North Carolina, Texas, Ohio, Georgia and Nevada).

Carter and Moylan document that from 1893 to present, there have been 513 executions in the State of California. In that same time period, there were 105 commutations of sentence which spared individuals from the death penalty. Since 1976, however, there have been 14 petitions for clemency and every one of them have been denied. The authors then show similar patterns in other states, some of which have clemency processes that vary from California's. In North Carolina, for example, 43 people have been executed since 1984 and only 5 commutations of sentence have been granted. In Texas, 405 people have been executed since 1976 and only 2 commutations have been granted. In Ohio, 26 people have been executed since 1981, but there have been 10 commutations of sentence. In Georgia, there has been 40 executions since 1986 and only 6 commutations. Nevada has executed 12 people since 1976 and 1 commutation has been granted. These trends are then discussed by the authors in light of recent commentary by the American Bar Association.

While Carter and Moylan agree that clemency is "valuable" as a "unregulated, extra-judicial process," they offer several interesting recommendations - some of which should be heavenly music to the ears of my fellow political scientists. For example, they call for greater public access to materials submitted in clemency processes and ask that data be kept in accessible locations. I am reminded of 1) the first time I wondered, "How many people did James Buchanan pardon and what were their names? and 2) what all I went through to become the very first person to ever collect that list of names!

Looking beyond all of that, Carter and Moylan suggest that California Governors be given discretion in the matter of whether or not to refer requests for clemency to a Board for review and recommendation if the applicant is a twice-convicted felon. They also call for proper funding for things like provision of counsel, investigative resources for inmates and the investigation unit of the above mentioned Board. PardonPower readers may recall the recent controversies in the Office of the Pardon Attorney, U.S. Department of Justice have left some wondering if adequate funding / resources are not a problem there. Governors are also encouraged to have face-to-face meetings with attorneys from both sides of clemency petitions.

Finally, Carter and Moylan recommend what might seem at once the most ambitious / most rational / and yet, perhaps, the most unlikely thing. They call for a serious effort to better educate the public regarding the function of clemency. Checks and balances are such a popular feature of our political system and are clearly the residue of a political culture which places considerable value on freedom and, on occasion, questions authority (or at least recognizes the fallibility of decision makers and the possibility of both restitution and rehabilitation). And yet, the pardon power has suffered such a public relations blow that few governors or presidents are willing to use it. In the instance of the ultimate punishment, death, it seems reasonable enough to be fairly concerned about the relationship between the surface impressions of popular culture and evident, long-standing executive neglect of such an important power.

Download Carter and Moylan's very interesting paper here.

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