January 01, 2017

Have Mercy: New Opportunities for Commutations in Death Penalty Cases

by Laura Schaefer, Michael L. Radelet

In the first 15 years of the twenty-first century, we have seen several indicators that the use of the death penalty in the United States is in steep decline. According to the Death Pen­alty Information Center, an annual average of 275 new prisoners arrived on America’s death rows between 1996 and 2000; in 2015, there were only 49 new death sentences. The aver­age number of executions per year has dropped nearly 50 percent since the last five years of the twentieth cen­tury, from 74 between 1996 and 2000 to 37.6 in the years 2011–2015. More­over, there were only 20 executions in 2016, a historic low in the modern death penalty era. Since 2000, seven states have abolished the death pen­alty, and four more have seen their governors impose moratoria on execu­tions. And, whereas Gallup found that 80 percent of Americans supported capital punishment as recently as 1994, a 2015 Quinnipiac poll indicates that more Americans today prefer a sentence of life imprisonment without parole (48 percent), universally avail­able in death penalty jurisdictions, to a death sentence (43 percent). This fact dramatically changes the moral and political climate around clem­ency decisions: More Americans now prefer life prison terms to the death penalty.

However, there is little indication that those involved in clemency deci­sions have been affected by the drop in death penalty support, as there has been no corresponding uptick in the number of death sentences commuted through executive action. In this arti­cle, we review and critique some of the prevailing explanations for the relative paucity of commutations in the mod­ern era of death sentencing. We find that each of these explanations is weak, that there may in fact be some­thing else contributing to the rarity of capital commutations, and conclude that there are excellent reasons why we should be seeing greater frequency of the exercise of capital clemency pow­ers in the near future.

Clemency: Capital Punishment’s “Safety Valve”

The clemency power—the authority of the executive to lessen or eliminate a criminal conviction or sentence— has long been considered a crucial “safety valve” in the capital pun­ishment process. The authority for governors to impose moratoria on executions (halting all executions for a designated time, or until the governor leaves office) is one example of how the clemency power has been used. In individual cases, clemency typically comes in the form of a commutation: modifying a death sentence to a sen­tence of life in prison. All states allow for executive clemency, and few states impose any substantive limitations on this power. Indeed, the Supreme Court recognizes the centrality of clemency as a necessary check to ensure fairness in death penalty cases. In Herrera v. Collins, 506 U.S. 390, 411–12 (1993), the Supreme Court noted that clemency “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”

Given the decline in public sup­port for the death penalty, one might have expected a concurrent increase in capital commutations over this same time period. Nonetheless, this expec­tation has not been realized. In the 43 years since the Supreme Court tem­porarily abolished the death penalty in Furman v. Georgia, 408 U.S. 238 (1972), the Death Penalty Informa­tion Center reports that there have been only 280 death row inmates in the United States whose sentences were commuted. Of those 280 cases, however, 206 were included in “broad grants of clemency,” whereby gov­ernors emptied death rows, usually close in time to the abolition of capital punishment in that state. Thus, in the four decades since the death penalty was reinstated in Gregg v. Georgia, 428 U.S. 153 (1976), only 82 commu­tations and five pardons have been granted on the individual merits of the case. That averages to about two com­mutations or pardons per year, and roughly one commutation for every 17.5 executions.

In sharp contrast, executive com­mutations of death sentences were much more common in the earlier years of the twentieth century. James Acker and Charles Lanier, for exam­ple, reviewed data from 15 states prior to 1972, finding a total of 900 com­mutations and 2,861 executions. This results in an overall ratio of one com­mutation for every 3.2 executions, indicating that commutations were five times more common before 1972 than in the decades since.

Why the Decline in Clemency Grants?

In the early 1990s, Hugo Adam Bedau—perhaps the most prolific death penalty scholar of the past six decades—offered three explanations for the decline in clemency grants since Gregg. See The Decline of Exec­utive Clemency in Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 255, 268–69 (1990–1991). First is the belief that a governor who commutes a death sentence “verges on commit­ting political suicide.” Second is the notion that “death sentences are now meted out by trial courts with all the fairness that is humanly possible.” And third is the idea that, “if a death sentence is unfairly imposed in a par­ticular case by the trial court, the appellate courts—and especially the federal courts—can be counted upon to rectify the injustice and order a new trial.” While many have accepted these hypotheses, a closer look at contem­porary capital cases leads us to reject all three as valid explanations for the sharp decline in the use of clemency.

Fair and reliable imposition of death sentences? First, we consider: are death sentences actually imposed today in trial courts with enough fairness and reliability to justify the dearth of clemency? As we see it, this contention is absurd. Numerous studies highlighting lingering racial, gender, geographic, and other dispari­ties in its imposition make it clear that we are far from reserving capital pun­ishment for “the worst of the worst.” For example, a 2014 study by Profes­sor Cathi Grosso and her colleagues identified 36 studies since 1990 that had addressed disparities, only four of which did not uncover any significant effects of race on death sentencing. Catherine M. Grosso et al., Race Dis­crimination and the Death Penalty: An Empirical and Legal Overview, in America’sExperiment with Capital Punishment 525 (James R. Acker et al. eds., 3d ed. 2014).

In addition, it has become appar­ent that people are more likely to receive the death penalty due to where the crime was committed rather than due to the nature of the crime itself. Furthermore, many states still execute individuals under the “law of par­ties,” which allows for a participant in a crime to be sentenced to death even if another person carried out the murder. For example, Robert Lee Thompson was executed in Texas in 2009 for his participation in a rob­bery that led to the shooting death of a drug store clerk, while his accom­plice, Sammy Butler—who shot and killed the victim—received a life sen­tence. Strikingly, the Texas Board of Pardons and Paroles (BPP) rec­ommended Thompson be granted clemency (one of only four times the BPP has done so); but this recommen­dation was denied by Governor Rick Perry, who was contemplating a run for national office. In addition, the law of parties allows prosecutors to pursue plea deals with the more cul­pable party in exchange for testimony against a co-defendant, thus ensur­ing that someone is sentenced to death for the crime. Richard Glossip—who has maintained his innocence, and whose conviction rests exclusively on the testimony of the man who com­mitted the crime—faces execution in Oklahoma as a result of such legal maneuvering. Countless other cases illustrate the fact that today’s death penalty is frequently reserved for those who are less able to negotiate a plea deal successfully with the state. There is no question that imposing the death penalty in such circumstances reeks of arbitrariness.

In addition, we now know of 156 individuals who have been released from death rows because of evidence of innocence—and only one, Earl Washington in Virginia, first saw his death sentence commuted before receiving a full pardon. This number of death row exonerations is aston­ishing and clearly demonstrates that our processes remain fallible, which should open the door for more com­mutations based on lingering doubt about the defendant’s guilt.

Appellate correction of any errors? Second, is the decline in commuta­tions attributable to any greater ability or willingness of appellate courts to correct errors made at earlier points on the path toward the execution chamber? Many problematic cases in which defendants have exhausted their judicial appeals have come to the attention of officials, and clemency has still been denied—oftentimes, with the clemency decision maker citing the appellate court rulings as grounds for denying clemency. This argument for why there is a decrease in commuta­tions assumes that the appellate courts are indeed acting to correct prior errors. What this rationale misses, however, is not only the reluctance of at least some judges to grant relief in death penalty cases but, more impor­tantly, that courts are often hamstrung in their ability to review all the facts and information necessary for the public to have full confidence in the appropriateness of a death sentence.

While capital cases endure years of appeals, in practice appellate courts often are statutorily restricted and unable to review all the information necessary to justify the ultimate pun­ishment. In many cases, evidence that may substantially affect the fairness of a death sentence simply cannot be weighed by the appellate courts due to procedural bars and other technical legal constraints. Changing societal and professional views of mental illness, for example, or an evolving understand­ing of whether 18 is truly old enough to be sentenced to death for a crime, are typically not the types of evidence a court can legally use to overturn (or even reconsider) the sentence. Clem­ency remains the most nimble vehicle through which evolving perspectives on such crucial issues as culpability and justice can be weighed—but it is almost never used to do so.

Furthermore, the role of the courts today is significantly changed from the time when Bedau attempted to explain the waning number of com­mutations. Specifically, the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) signifi­cantly limited federal courts’ ability to review state courts’ death penalty opin­ions. (Indeed, AEDPA was in large part passed with precisely this goal in mind.) Under this statute, federal courts are unable to overturn a state court decision unless “there is no pos­sibility [that] fair-minded jurists could disagree that the state court’s decision conflicts with [Supreme Court] prec­edent.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (emphasis added). As a result, many cases that might have won judicial relief in the years prior to AEDPA are now heavily insulated from federal review.

This now 20-year-old change in the law has rendered the clemency power even more important today, because clemency officials can no longer seri­ously assume that the courts have the power to correct all the major errors in a capital case. In recent years, pris­oners have been executed despite strong evidence of developmental dis­abilities (Warren Hill, Georgia, 2015); doubts about guilt (Cameron Todd Willingham, Texas, 2004); unques­tioned rehabilitation (Stanley “Tookie” Williams, California, 2005); lesser sen­tences imposed on an equally or more culpable co-defendant (Kelly Gis­sendaner, Georgia, 2015); and a wide array of other factors that make scores of death row inmates like these most likely not among the “worst of the worst.” While federal courts were in fact more free (and willing) to overturn death sentences in the two decades following Gregg, this aspect of the process has now entirely changed. In short, AEDPA has effectively extended an invitation to clemency officials to use their powers where the courts are now prevented from doing so: but, sadly, that invitation has gone unanswered.

Political risk? Finally, we consider Bedau’s third explanation for decline in clemency: Is it “political suicide” to commute death sentences? The short answer is “no,” and the longer answer is “at least not anymore.” No gover­nor has suffered significant political backlash for any of the 280 commu­tations that have been granted in the past 43 years. Indeed, the state that saw the most commutations and par­dons, Illinois (four pardons and 167 commutations in 2003), went on to see another 15 commutations and com­pletely abolished the death penalty only eight years later. Ohio Governor John R. Kasich commuted five death sentences between 2011 and 2014, and then easily won reelection. None of his rivals for the Republican presidential nomination in 2015–2016 mentioned his commutations as reasons to dis­trust him or vote against him; nor did they claim that his use of commuta­tions must mean he opposes the death penalty. One of the more controversial uses of the clemency power in recent memory—the 2013 reprieve granted to Nathan Dunlap, the so-called “Chuck E. Cheese shooter” in Colo­rado—did not prevent Governor John Hickenlooper from winning reelection in 2014. While political actors consid­ering clemency for death row inmates likely do fear political repercussions for an affirmative clemency grant, the evidence suggests that this fear is not realized.

Trends away from the death penalty and recent public opinion polls actu­ally indicate that denial of clemency, rather than its approval, may today constitute the bigger political risk for decision makers. In today’s political climate, a governor’s use of clemency powers might justifiably be seen as a sign of integrity, rather than weak­ness. There is no question that today’s political environment in terms of our perspectives on crime and punishment is significantly evolved and different from that of the 1980s and 1990s.

One of the most memorable moments of the 1988 presidential race between George H.W. Bush and Michael Dukakis came early in their final debate, when the moderator began by asking Dukakis, a lifelong foe of the death penalty, if his oppo­sition would be swayed if someone raped and murdered his wife. Duka­kis’s response, that he would still not favor the death penalty even in that instance, was seen as so unemotional, tepid, and off-the-mark that many attributed his eventual political demise in part to his dismal response. Politi­cians quickly viewed this as showing that publicly opposing the death pen­alty would spell political disaster.

Even if there were once some cre­dence to this view, it is no longer the case. Tough-on-crime policies, now clearly linked to the mass incarcera­tion so troubling to both sides of the political aisle, are steadily declining in popularity. Similarly, the National Academy of Sciences recently dis­missed the claim that the death penalty is a stronger deterrent to homicide than long prison terms, throwing cold water on the idea that we need more executions to fight high crime rates. Moreover, public awareness of wrong­ful convictions and concern about the decades individuals typically spend on death row prior to execution has increased support for abolition. To the extent that granting clemency was politically untenable in the first two decades post-Gregg, due to fears of backlash amid widespread pub­lic approval of the death penalty, this rationale today is shrinking.

Misunderstanding of the role of clemency? So, why are there so few commutations? One contention that has not been fully explored is whether commutations have become so rare in practice that decision makers no longer feel confident that their discre­tion and independent judgment are intended to serve as a check on the capital punishment system. We sus­pect that many clemency officials today are simply unaware of the fun­damental importance of clemency in ensuring fairness and justice in death penalty cases. An assumption appears to have emerged that the clemency decision maker can only act in truly “extraordinary” circumstances, such as when strong exculpatory evidence emerges just prior to an execution. (Clearly, when governors were grant­ing individual commutations in death penalty cases at a much higher rate pre-Gregg—decades before DNA and forensic testing emerged—this idea was not at play.) The assumption that clemency is designed only to serve as a means of preventing an innocent person from being executed is a mis­understanding of the significance, role, and rationale of clemency within our criminal justice system.

In 1788, Alexander Hamilton wrote: “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embar­rassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a counte­nance too sanguinary and cruel.” The Federalist No. 74. More than two centuries later, the clemency power has remained broad in both the state and federal death penalty systems, and is still intended to operate as a check on justice “too sanguinary and cruel.” Today’s clemency authorities who feel reluctant to tinker with death sen­tences that have already passed the scrutiny of jurors and some judges are failing to recognize the impor­tance—and indeed centrality—that their prerogative of granting clemency plays in ensuring overall fairness in our criminal justice system.

Conclusion

Political considerations are an inevi­table reality whenever the executive acts. However, political reprisal seems today an unrealistic ground to refuse clemency in cases where otherwise warranted. The changing nature of death penalty politics and the courts’ failures to ensure that only the worst of the worst are executed have opened the door for more clemency officials to exercise their power today.

There is no question that there are many individuals currently facing exe­cution who, if tried for the same crime today, almost certainly would not be sentenced to death. Not to com­mute the sentences of these individuals ignores the “fail-safe” deliberately built into our capital punishment system. 

 

Laura Schaefer is a staff attorney for the ABA Death Penalty Representation Project, and counsel for the Capital Clemency Resource Initiative, a joint project of the ABA Death Penalty Due Process Review Project, Death Penalty Representation Project, and Commission on Disability Rights. She previously represented capital defendants in their state habeas appeals with the Office of Capital and Forensic Writs in Austin, Texas. Michael L. Radelet is a professor in the Institute of Behavioral Science and the Department of Sociology at the University of Colorado– Boulder. His latest book, The Death Penalty in Colorado: Ambivalence, Inconsistencies, and Expense, will be published in early 2017 by University Press of Colorado.