Clemency serves a vital role in our capital punishment system by acting as a “fail-safe” to prevent unjust executions. Prior to the execution of a death-sentenced prisoner, it allows a governor or board of pardons and paroles to conduct a full review of the case and grant a reprieve, pardon, or commutation, free from some of the procedural limitations that may favor expediency over justice.
Despite its longstanding roots and significance in the American death penalty process, clemency historically has received relatively little focus compared to other stages of a capital case. As a result, the training and resources available to actors in the clemency process lag far behind those provided for the investigation, trial or appeals.
This lack of resources necessarily affects the quality of representation that individuals facing execution receive, as clemency advocacy is often distinct from litigation strategy. The lack of resources and focus on clemency also detracts from decision makers’ ability to give informed and reasoned consideration to the complex legal and factual issues raised in clemency petitions. Decision makers often have little or no formal guidance about the complicated and diverse factors they can and should consider when evaluating a petition for clemency in a death penalty case. Furthermore, the attorneys who present those petitions do not have access to focused training materials that address the unique aspects of the clemency process.
Thus, there is a critical and unmet need for education and training of both lawyers representing capital prisoners and decision makers who review petitions for clemency to ensure that this key phase of a capital case is meaningful and fair.