Clemency News and Developments: 2005

Articles: Schwarzenegger's Mistake: Clemency and Tookie Williams December 27, 2005: The Jurist

Schwarzenegger's Mistake: Clemency and Tookie Williams
By Austin Sarat

By denying clemency to Stanley "Tookie" Williams Arnold Schwarzenegger did more than allow another execution to be carried out. He broke faith with the understandings of those who wrote our Constitution and damaged the intricate balance of our constitutional government. Casually dismissing Williams's contention that he had been "reformed and...redeemed for his violent past," Governor Schwarzenegger's treated his own clemency power as a narrow and limited one. As he explained, the clemency power should not be used "to nullify the jury's decision of guilt and sentence...." except to prevent miscarriages of justice. This is not the way the clemency power was understood by those who made the power "to grant pardons and reprieves" part of our constitutional
system, nor, throughout most of our history, by those charged with interpreting that power or with exercising it.

Although the original versions of the New York and Virginia Plans that provided the frameworks for debate at the Constitutional Convention included no provisions for pardon, revisions to both plans eventually did. The power that emerged from the convention was regarded by the Framers of the Constitution as necessary to a humane and effective scheme of government. Defending executive clemency Alexander Hamilton said, "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little fettered as possible."

Hamilton thought that the pardon power would and should be used mercifully, otherwise "justice would wear a countenance too sanguinary and cruel" and, in its merciful use, would ennoble those who wielded it.

Hamilton's understanding of clemency has been reiterated throughout American history by judges and politicians alike. Writing in 1833, in the first clemency case to reach the United States Supreme Court, Chief Justice John Marshall called pardon "an act of grace, proceeding from the power entrusted with the execution of the laws...." Twenty years later, the Supreme Court again embraced a very broad view of the clemency power, saying "Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that
attribute of Deity whose judgments are always tempered with mercy." In 1866 Justice Field wrote approvingly of what he called the "benign prerogative of mercy."

Lest anyone think that this is an outmoded, old fashioned conception of clemency, from time-to-time a similar standard has been embraced by governors and judges in our own era. Terry Sanford, Governor of North Carolina from 1961-65, provides one example of such a view. "The Executive," Sanford wrote "is charged with the exercise in the name of the people of an ... important attitude of a healthy society - that of mercy beyond the strict framework of the law.... Executive clemency does not involve the changing of any judicial determination. It does not eliminate punishment; it does consider rehabilitation. To decide when and where such mercy should be extended is a decision which must be made by the Executive....It falls to the Governor to blend mercy with
justice, as best he can, involving human as well as legal considerations, in the light of all circumstances after the passage of time, but before justice is allowed to overrun mercy in the name of the power of the state."

Chief Justice William Rehnquist, in a 1993 Supreme Court decision, called clemency the sovereign's "power to extend mercy, whenever he thinks it is deserved....", and five years later said it was "a matter of grace." Rehnquist suggested that this power was designed to allow the executive "to consider a wide range of factors not comprehensible by earlier judicial proceedings and sentencing determinations."

Yet, at least in the context of capital cases, this broad understanding of clemency steadily has been losing favor along with clemency itself.

From 1994-2004 (excluding former Illinois Gov. George Ryan's mass commutation of his state's death row) 25 clemencies were granted across the entire country; forty years earlier in the decade 1954-1964 there were 198 clemencies. As one commentator puts it, capital clemency has "died its own death, the victim of a political lethal injection and a public that overwhelmingly supports the death penalty." Thus at the outset of his administration, then Texas Governor George Bush embraced a standard for clemency that all but ensured that few if any death sentences would be seriously examined. "In every case," [Bush] wrote in A Charge to Keep, "I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?" During his six years as governor 150 men and two women were executed in Texas; Bush allowed the execution to proceed in all cases but one. As the journalist Alan Berlow notes, "This is an extraordinarily narrow notion of clemency review: it leaves little, if any, room to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination, the competence of the legal defense, or disparities in sentences between co-defendants or among defendants convicted of similar crimes." It leaves little room for the kind of claims made by, and on behalf of, Tookie Williams. It is this cramped conception that animated Schwarzenegger's decision to allow Williams's execution to proceed.

Many governors today have turned crime fighting, tough-on-crime policy into a strategy for building political coalitions and strengthening their electoral prospects. Many are afraid that granting clemency to convicted murderers will leave them vulnerable to damaging charges that they are soft-on-crime. As a result, they have let the clemency power atrophy rather than courageously exercising their discretion to accord mercy to the condemned. In doing so they have departed from the original understanding of that power and historical practice. In the Williams case, Governor Schwarzenegger missed an opportunity to reverse that trend and did a disservice not only to Tookie Williams, but to all of us.
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Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Five College Fortieth Anniversary Professor at Amherst College and author of Mercy on Trial: What It Means to Stop an Execution

Copyright 2005 The Jurist

New Resources: New Book Focuses on Clemency in Capital Cases 

A new book by Professor Austin Sarat (pictured) focuses on clemency's role in the U.S. criminal justice system: "Mercy on Trial: What It Means to Stop an Execution." According to U.S. Senator Edward Kennedy, "This thoughtful book should be read by every citizen who cares about the issue, and by every governor and president entrusted with the power to punish or pardon." In "Mercy on Trial," Sarat reviews the complexities of clemency and examines issues such as rehabilitation. (Princeton University Press, 2005).

See Books on the Death Penalty. See also Clemency. Happy Holidays!

Baltimore Cardinal Makes Historic Visit With Death Row Inmate Awaiting Execution

Cardinal William H. Keeler (pictured), archbishop of Baltimore and chair of the U.S. Conference of Catholic Bishops' Committee for Pro-Life Activities, made an historic visit to Maryland's death row and met with Wesley Eugene Baker, who is scheduled to be executed in a few days. Cardinals Keeler, Theodore McCarrick of Washington, DC, and Michael Saltarelli of Wilmington, Delaware also sent a letter to Maryland Governor Robert Ehrlich urging him to commute Baker's sentence to life in prison without parole.

"We write as believers, who know that God's justice is seasoned by His mercy. Mercy is what we ask of you in the case of Mr. Baker. . . . [Church teaching] acknowledges the right of legitimate government to resort to the death penalty, but it challenges the appropriateness of doing so in a society now capable of defending the public order and ensuring the public's safety. . . . [N]o decision of your gubernatorial service can be more momentous than the decision to extend, or to withold the hand of mercy," the Cardinals wrote in their appeal to Ehrlich.

After his visit, Keeler noted that Catholic leaders have opposed the death penalty for a quarter of a century, and he stated that the late Pope John Paul II believed that capital punishment is "really sending the wrong message about the sacredness of life." Last month, during the annual meeting of the U.S. Conference of Catholic Bishops, the Bishops approved "A Culture of Life and the Penalty of Death," an 18-page statement criticizing the administration of the death penalty in the U.S. and stating that it offers a false hope of healing to the survivors of crime.

Keeler's visit to Maryland's death row was the first in modern times by a Maryland bishop. (Baltimore Sun, November 29, 2005).

See Clemency and New Voices.


Virginia Governor Commutes Lovitt's Death Sentence 

Virginia Governor Mark Warner (pictured) commuted the death sentence of Robin Lovitt to life in prison without parole, a decision he made to "ensure that every time the ultimate sanction is carried out, it is done fairly." Warner noted his decision was based on concerns that Lovitt could not pursue new DNA testing on crucial evidence that could prove his innocence. The evidence, a pair of scissors that prosecutors say Lovitt used as the murder weapon, had been thrown out by a Virginia court clerk. During Lovitt's trial, DNA tests on the scissors were inconclusive, and Lovitt's fingerprints were not found on the scissors. His attorneys argued that losing the weapon had resulted in "profound unfairness" because Lovitt could not request more modern DNA tests on the evidence.

"I believe clemency should only be exercised in the most extraordinary circumstances. Among these are circumstances in which the normal and honored processes of our judicial system do not provide adequate relief - circumstances that, in fact, require executive intervention to reaffirm public confidence in our judicial system," Warner said as he announced his decision to commute Lovitt's sentence.

Lovitt was scheduled to be the 1,000th person executed since capital punishment was reinstated, and he is the first person to have his death sentence commuted by Warner. (New York Times, November 30, 2005).

See Clemency and Life Without Parole.

Conservatives Urge Virginia Governor to Grant Clemency Request as 1,000th Execution Nears

A clemency petition filed with Virginia Governor Mark Warner on behalf of Robin Lovitt, who is scheduled to be executed on November 30, has gained the backing of some of the state's most conservative voices. Among those encouraging Warner to commute Lovitt's sentence to life are former Republican Virginia attorney general Mark L. Earley, Rutherford Institute founder John W. Whitehead, and Lovitt's attorney Kenneth Starr, who now serves as dean of the Pepperdine University School of Law.

In May 2001, three weeks after Virginia legislators passed a bill ordering that all biological evidence in death penalty cases be sent to the state forensics lab for safekeeping in case future DNA or other testing was needed, the Arlington County Court ordered destruction of evidence in Lovitt's case. The clerk responsible for destroying the evidence claimed ignorance of wrongdoing. Original DNA testing in Lovitt's case was inconclusive. In his appeal for clemency for Lovitt, Starr noted that DNA testing has greatly improved since the original tests were conducted and that "through no fault of his own," Lovitt cannot take advantage of new DNA technologies.

"I think it's morally unfair to this guy when the evidence was by all accounts clearly destroyed contrary to [state law], and it has clearly prejudiced him," said Earley, who supports capital punishment and is president of the Virginia-based Prison Fellowship Ministries. "[The destruction of evidence] just presents a highly prejudicial cloud over the case. [I]f you impose the death penalty in this case, quite frankly, you undermine the credibility of the death penalty."

Whitehead added, "The governor's authority to commute death sentences is reserved specifically for situations like this one."

Lovitt is scheduled to be the nation's 1000th execution since capital punishment was reinstated in 1976. Virginia governors have only granted clemency in six death row cases, including four cases that involved questions of possible innocence. Warner has denied each of the 11 clemency petitions that have come before him since he took office in 2002. (Richmond Times-Dispatch, November 22, 2005).

See Clemency, Innocence, and New Voices.


Editorial Praises Clemency for Mentally Ill Indiana Man Facing Execution

A recent editorial in The Washington Post praised Indiana Governor Mitchell Daniels for commuting the death sentence of Arthur Baird, who suffers from severe mental illness. The editorial noted:

Indiana Gov. Mitchell E. Daniels Jr. (R) acted wisely and humanely this week in commuting the death sentence of one Arthur Paul Baird II. There is no question that Mr. Baird killed his parents and his pregnant wife back in 1985. There is also little question that he is seriously mentally ill and was so then. His mental illness was clearly a significant factor in the killings and just as clearly led directly to his death sentence. Because of his delusional state, Mr. Baird inexplicably rejected a plea deal the state had offered him that would have spared his life. Jurors in his case have indicated that had life in prison without parole -- not an option in Indiana at the time -- been available, they would have chosen that rather than death. Family members were similarly inclined. Yet the state parole board recommended against clemency on a 3 to 1 vote, and the Indiana Supreme Court, also divided, likewise declined to step in. Mr. Daniels deserves credit for taking responsibility for preventing Mr. Baird's execution.
...

Still, other governors in recent years, faced with severely mentally ill inmates on death row, have averted their gaze and let them die. The Supreme Court has held that it is unconstitutional to execute the mentally retarded or those who were not of age at the time of their crimes. That it is still somehow okay to put to death a florid psychotic is a strange and amoral anomaly of contemporary American law, one that cries out for reform. Until that happens, however, executive clemency is the only viable protection. It is refreshing to see a governor willing to step up to the plate.

(Washington Post, September 1, 2005). See Mental Illness, Clemency, and Editorials.

Seriously Mentally Ill Man Receives Commutation in Indiana

Arthur Baird, who was to be executed on August 31 for murdering his parents in Indiana, received a commutation to a life sentence from Governor Mitch Daniels. (WishTV.com, Ch.8, Indianapolis, Aug. 29, 2005). Two members of the Indiana Supreme Court had written that Baird was "only marginally in touch with reality," in a decision in which the majority had allowed the execution to go forward. A report to the court from Dr. Philip M. Coons, a professor emeritus of psychiatry at the Indiana University School of Medicine, found Baird to be "grossly psychotic and delusional" and mentally unfit to be executed. Indiana's parole board had recommended against a commutation. (Indianapolis Star, August 26, 2005).

See Clemency and Mental Illness.

Georgia Board To Pardon Woman 60 Years After Her Execution 

The Georgia Board of Pardons and Paroles has announced that it will issue a formal pardon this month for Lena Baker (pictured), the only woman executed in the state during the 20th century. The document, signed by all five of the current board members, will note that the parole board's 1945 decision to deny Baker clemency and allow her execution was "a grievous error, as this case called out for mercy." Baker, an African American, was executed for the murder of Ernest Knight, a white man who hired her . Baker was tried, convicted, and sentenced to die in one day by an all-white, all-male jury. Baker claimed she shot Knight in self-defense after he locked her in his gristmill and threatened her with a metal pipe. The pardon notes that Baker "could have been charged with voluntary manslaughter, rather than murder, for the death of E.B. Knight." The average sentence for voluntary manslaughter is 15 years in prison. Baker's picture and her last words are currently displayed near the retired electric chair at a museum at Georgia State Prison in Reidsville. (Atlanta Journal-Constitution, August 16, 2005).

See Race, Clemency and Women.

Texas Governor Commutes 28 Juvenile Offender Death Sentences 

Texas Governor Rick Perry (pictured) has commuted the death sentences of 28 juvenile offenders to life in prison, an act that brings the state into compliance with a recent U.S. Supreme Court ruling that deemed the practice of executing those who were under 18 at the time of their crime unconstitutional. While some of these inmates will remain in more restrictive segregation, many will have their first exposure to prison work programs, schooling, and jobs within a prison unit.

Current Texas sentencing laws give jurires in capital murder cases the choice of sentencing defendants to executon by lethal injection or life in prison with the possibility of parole after 40 years. Last week, Perry signed into law a change that will remove the possibility of parole in life sentences, but the change will not apply retroactively to crimes committed before Septemeber 1, 2005. (Associated Press, June 22, 2005)

See Juveniles, Life Without Parole, and Clemency. See also DPIC's Roper v. Simmons Web page.

Clemency Reforms Urged In Texas

 Texas should overhaul its executive clemency process to ensure a fair and equitable justice system, according to a new report by Texas Appleseed and the Texas Innocence Network. The report, "The Quality of Mercy - Safeguarding Justice in Texas Through Clemency Reform," offers a series of recommendations intended to improve the process, including holding public hearings in clemency cases, establishing standards and objective criteria that can be used to guide clemency decisions, granting members of the Texas Board of Pardons and Paroles greater independence, and eliminating a Board provision that requires trial officials to agree to a grant of clemency.

In commenting about the report, Jared Tyler, Deputy Director of the Texas Innocence Network, noted, "The Texas Board of Pardons and Paroles was established by the Texas Constitution, in part, as a bulwark against prosecutorial and judicial injustice. But through its self-adopted regulations and practice, it has almost entirely subordinated itself to the views of prosecutors, judges, and law enforcement, the very entities it is supposed to check. The Board has relinquished responsibility for independently evaluating evidence of innocence, placing an unjustifiable and needless burden on those who have been wrongly convicted." (Press Release, Texas Appleseed and Texas Innocence Network, February 18, 2005).

Read the Full Report (PDF Format). See also, Clemency.

Los Angeles Times Urges Clemency for Beardslee While Challenging the Arbitrariness of the System

Just days before the scheduled execution of Donald Beardslee in California, the Los Angeles Times has called for his clemency while questioning the even-handedness of the whole system. The editorial concludes that the death penalty is a "lie" to the people of California:


Donald Beardslee was 38 years old in 1981 when he shot one woman and strangled and slashed another in San Mateo County, retaliation for a soured drug deal. He is now 61. So many years have passed since a jury sentenced him to die in the gas chamber that the infamous green room at San Quentin Prison has become a grisly relic. Beardslee's execution, now scheduled for Wednesday, will be by lethal injection.

It's taken state prosecutors nearly 24 years to arrive at this moment, and Beardslee's case alone has probably cost taxpayers more than $1 million. Yet his winding path to the death chamber is hardly unusual, and his case demonstrates the caprice, unfairness and waste woven through California's death penalty.

In concept, many Californians seem to approve of capital punishment; as voters, they regularly declare additional crimes subject to the death penalty. California law now lists more than 30 "death-eligible" special circumstances, more than any other state.

The broad latitude of prosecutors to ask for death and the willingness of juries to comply has put 640 men and women on death row, the largest condemned population in the nation.Texas, which executes its condemned prisoners more swiftly, is second with 455 inmates.

Beardslee was subject to the death penalty because he committed multiple murders. So was Leonard E. Brown. In 1981, the Compton man, then 23, was convicted of two murders committed during a four-day PCP-fueled spree that also included rape, assault and robbery. But the Los Angeles jury that heard Brown's case sentenced him to life without parole instead of death. That same year an Orange County judge sentenced another man, William Caywood, to life after a jury deadlocked over the death penalty. Caywood murdered his two bosses at the gas station where he worked, shooting them execution style.

Three men, each convicted of two murders, yet only one is sentenced to death.

California does more than many states to keep the innocent from being executed and to ensure that those condemned get fair trials. The appeals and assurances may take decades to work their costly way through the courts, which is another matter. But in the whole complicated process, nothing addresses the inequality of the death penalty's application. Judges in California cannot throw out a capital sentence on the ground that defendants who committed similar crimes were not sentenced to die.

So few California lawyers are qualified to handle death-penalty appeals that 248 inmates still have no attorney appointed for at least one phase of this review process. So much cost and time are involved in these complex challenges that Beardslee's execution would be only the 11th since voters reinstated the death penalty in 1978. But speeding up the process would necessarily mean accepting less-qualified lawyers for the appeals and increasing the risk of executing defendants who are innocent or were unfairly convicted.

Beardslee confessed to his crimes, and prosecutors painted him as a calculating, remorseless killer. Those were among the factors that led the jury to recommend death. But Beardslee's appellate lawyers argue that extensive brain damage he suffered in accidents as a child and young man put him under the sway of a domineering accomplice who directed the murders.

The original trial jury heard about those accidents but not about the lasting damage they might have caused or the effect on his personality and behavior. The brain-imaging technology now available didn't then exist. His lawyers' contentions on that damage form the basis of a clemency petition now before Gov. Arnold Schwarzenegger.

The governor should grant that petition and at least commute Beardslee's sentence to life without the possibility of parole. But Beardslee's case also demonstrates the impossible position California is now in: By erecting a death penalty scheme that sentences so many to death and executes so few, the state lies to itself and the people about what it's doing.

(Los Angeles Times, January 17, 2005) (emphasis added). See Clemency, Editorials, and Upcoming Executions.

Indiana Governor Grants Clemency While Calling for Death Penalty Review 

With just days remaining in his term, Indiana Governor Joe Kernan (pictured) has granted clemency to Michael Daniels, whose case underscored the Governor's concerns about the death penalty. "I have now encountered two cases where doubt about an offender's personal responsibility and the quality of the legal process leading to the capital sentence has led me to grant clemency. These instances should cause us to take a hard look at how Indiana administers and reviews capital sentences," said Kernan, who hopes the state government can soon examine whether Indiana's sentencing system is fair in death penalty cases.

The Governor noted that evidence casting doubt on Daniels' guilt was never presented in court, and that Daniels' IQ of 77 is just above the level to be considered mentally retarded. He also stated that Daniels, who was the only one of three co-defendants to receive a death sentence, was psychotic for some time and unable to assist in his defense. In July 2004, Kernan granted clemency to Darnell Williams just days before his scheduled execution.

This most recent commutation earned praise from the victim's son, Tim Streett, a minister who opposes capital punishment and has supported clemency for Daniels. Streett said that his late mother would have been glad to have the case come to an end, noting, "As long as he (Daniels) was on death row, every couple of years there was a story about it in the paper. She just wanted that to be over." (Associated Press, January 9, 2005).

See Clemency - this is the 228th clemency granted in the U.S. since the death penalty was reinstated in 1976, including 171 granted by Gov. Ryan of Illinois; Innocence, and Victims.

Washington Post Explores Gonzales Clemency Memos

The Washington Post has conducted further research into the clemency memos prepared by U.S. Attorney General nominee Alberto R. Gonzales, who served as lead counsel to then-Governor George W. Bush in Texas. Gonzales crafted 62 memos regarding clemency requests from Texas death row inmates, and several Texas attorneys have voiced their criticisms that the clemency memos contained incomplete and unfair summaries of evidence and mitigating circumstances. The memos, first reviewed in 2003 by investigative journalist Alan Berlow for The Atlantic Monthly contained Gonzales's recommendations for each upcoming execution and resulted in Bush's denial of clemency in all but one instance between January 1995 and November 1997. In one memo written about the case of Henry Lee Lucas, Gonzales failed to mention that a 1986 investigation by the Texas attorney general's office concluded that Lucas had falsely confessed to numerous murders and had not killed the victim in the crime for which he was to be executed. "[I]t does not really address in any way...all the questions that were raised about his guilt," said former Texas attorney general Jim Mattox after reviewing the Lucas clemency memo written by Gonzales.

In the case of Kenneth Ray Ransom, defense attorney Jim Marcus believes the memo given to Bush failed to correctly state the basis for Ransom's clemency request. Marcus notes, "Had I known that the 40-page petition I filed would be boiled down to one slipshod sentence in Mr. Gonzales's memo, I would simply have filed a one-sentence petition." Defense attorney David Herman stated that Gonzales's summary of Jack Strickland's case failed to accurately address questions about Strickland's mental competency and was "a skeletal attempt to brief Bush on a complex case." Another Texas defense attorney, Greg Wiercioch, said that for two of his death row clients, appellate courts granted stays of execution or ordered additional evidentiary hearings after Gonzales had declared in his memos that the case had no worthy pending legal issues. (The Washington Post, January 6, 2005).

See Clemency.