May 11, 2018

Capital Clemency Resource Initiative

www.capitalclemency.org

Why Clemency?

“Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 411-12 (1993).

“A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833).

Background

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.  

To respond to this need, the ABA Death Penalty Due Process Review Project, the ABA Death Penalty Representation Project, and the ABA Commission on Disability Rights came together to form this innovative joint Initiative.  You can find more information about our collaborative effort and tools we've created at: www.capitalclemency.org

Actions and Resources

The CCRI is the first project exclusively dedicated to providing actors in the clemency process— attorneys and governmental decision makers alike—the resources and training necessary to ensure a meaningful process and reasoned decision in a capital-clemency case.

The Initiative works to achieve its goals in the following ways:

  • We undertook a state-by-state assessment of capital clemency procedures so that we could create resources and training specifically targeted to equipping practitioners with the practical information and guidance they need to effectively represent clients in clemency proceedings in their jurisdictions. 
  • We have gathered and curated existing resources from across the country that are most relevant to capital clemency, including reports and research on clemency, real clemency petitions, prior lawyer training materials, scholarly articles, news stories, case decisions among others. All of the best resources are now available at www.capitalclemency.org. Additionally, these resources help us determine where additional research and resources were needed.
  • We created new specialized resources on clemency in death penalty cases, including: 
    • Jurisdiction-specific memoranda/webpages that provide details about clemency in individual death penalty states, including the procedures for requesting clemency, the relevant decision-maker(s), prior significant grants or denials, demographics of the state, and other important factors that might affect clemency review; and,
    • Specialized training materials for lawyers who are currently representing or interested in representing death row clients, including the CCRI’s exclusive publication, “Representing Death-Sentenced Prisoners in Clemency: A Guide for Practitioners.”  (This publication is only available to lawyers who are registered at www.capitalclemency.org). 
  • We will work with decision makers in the capital clemency process to better understand what information and guidance are needed to ensure that these government officials are fully informed of relevant developments in death penalty law and practice. Providing decision makers with such tailored information is vital, as death penalty cases typically are only a small fraction of the cases they are asked to review. As a result, we hope to increase our society’s confidence that decisions made at this critical, final stage of the death penalty process are sound.

Mission


The mission of the ABA Capital Clemency Resource Initiative is to address the troubling lack of resources and expertise available to practitioners and decision makers in the capital clemency process and—for the first time—to provide targeted, comprehensive, and current materials to guide stakeholders through this crucial last phase of the death penalty process.

To further this mission, our Projects' staffs and the Initiative seeks to:

  • Develop effective educational resources for capital defenders and clemency decision makers, which include both universal “best practices” and recommendations tailored to individual state practice;
  • Design and host training programs for capital clemency counsel, responsive to the needs and concerns voiced by practitioners in the various states;
  • Collaborate with capital clemency decision makers to ascertain interest in and provide support for specially-focused training programs, as desired;
  • Educate the public and the legal profession more broadly on the importance of clemency in capital cases and the problems with its current use.

Contact Us

If you are interested in learning more about the Initiative, or if you are representing a client facing execution and would like to speak with us about our currently available materials regarding capital clemency, do not hesitate to contact us. To the extent that you have expertise and interest in this field, we encourage you to reach out to share your experiences and make recommendations as to where you believe help is most needed.

We look forward to working together with you to shape this incredibly important Initiative for death penalty practitioners and decision makers.

If you have questions or need assistance, you may contact us at dueprocess@americanbar.org or Laura Schaefer, Counsel, Capital Clemency Resource Initiative, ABA Death Penalty Representation Project at Laura.Schaefer@americanbar.org