Governor Perry, Governor Ryan, and The Disappearance of Executive Clemency in Capital Cases:
What Has Happened to Mercy in America?

By AUSTIN SARAT
Wednesday, Dec. 29, 2004

Recently, newspapers throughout the country carried front page stories about Texas Governor Rick Perry's decision to grant a last-minute, temporary reprieve to death row inmate Frances Newton. The story was striking for several reasons: Newton is one of a small number of women on death row in the United States; and the reprieve was issued by a governor of Texas, where 336 people have been executed since 1972, including 23 in this year alone.

But the truly striking facet of the reprieve was the mere fact that it was granted at all. In capital cases throughout the country, as I will explain, clemency - and mercy - have all but disappeared.

Newton's Case: Questionable Evidence Sealed Her Conviction

Newton has spent 16 years on death row for the shooting death of her husband and their two children. The entire time, she has maintained her innocence. And the evidence suggests her claim may be true.

A crucial piece of evidence in the case against Newton was a gun which the prosecution contended was the murder weapon. One of Newton's cousins had testified that Newton found the gun some time before the murder, put it in a bag, and put it in a nearby abandoned house.

Unfortunately, the weapon was tested by the notorious Houston police crime laboratory -- which was subsequently found to have been repeatedly sloppy and negligent in its procedures for handling evidence. Accordingly, there is a real possibility that the testing which was the linchpin of the government's case against Newton was inaccurate.

For this reason, Governor Perry accepted a recommendation made by the State Board of Pardons and Paroles to delay the execution in order to allow for the retesting of the gun. Presumably, if the testing tends to exonerate Newton, she will now have a chance to go to court to try to reverse her conviction, or at least her sentence of death.

Perry's Action: A Temporary Delay, Not a True Reprieve

Importantly, however, Perry did not give Newton a true reprieve, in the sense of saving her from execution. To the contrary, he has maintained that after a lengthy review of the case "I see no evidence of innocence," and he has not hinted of any change in his own longstanding reluctance to use his clemency powers in capital cases.

Put another way, Perry's decision to impose a lifesaving temporary delay in Newton's case had nothing to do with mercy, and everything to do with accuracy. He is worried, in other words, about executing an innocent woman - not about execution, period.

While in recent years, we may have come to take this kind of stance for granted, it's unusual in American history. Until recently, mercy has been the major ground for clemency in capital cases. But now, true clemency is all too rare.

Instead, governors tend to adhere to a standard for clemency articulated by Perry's predecessor, George W. Bush, who explained, "In every case, 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?"

The problem is that this notion of clemency review leaves no room for mercy of the kind that might be extended to even a guilty death row inmate -- on the basis of mental illness, childhood abuse, remorse, or post-conviction rehabilitation.

Rejecting appeals from the Pope, Mother Teresa, televangelist Pat Robertson, former prosecutors, and even judges and jurors in death cases, governors -- including Governor Perry -- continue to reserve this extraordinary power for "unusual" cases in which there are real indications that someone might have been unfairly convicted.

Governor George Ryan's Clemency in a Host of Capital Cases

Another recent example of clemency without mercy is that of Governor George Ryan of Illinois. In January 2003 -- with only two days left in his term in office and strong evidence that Illinois had repeatedly executed innocents in the past -- Ryan emptied his state's death row.

First, he pardoned four death row inmates. Then, he commuted 167 more death row inmates' sentences. It was the broadest attack on the death penalty in decades. Here a governor took issue not only with proof of guilt in an individual cases, but more fundamentally, with execution as a punishment.

While Governor Ryan focused on the possibility of innocence as a major reason for his clemency grants, he also indicated, in remarks made at the time he issued them, that the system's problems went far beyond problems in the accuracy of the underlying convictions. He saw clearly that, instead of a system finely geared to assigning punishment on the basis of a careful assessment of the nature of the crime and the blameworthiness of the offender, our system for imposing "the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake."

In addition, when Ryan announced his clemency decision, he posed the following rhetorical question: "How many more cases of wrongful conviction have to occur before we can all agree that the system is broken?" Ryan made clear the problems with the death penalty were systemic, and not confined to the stage at which guilt is determined: He noted, to this effect, that "[o]ur capital system is haunted by the demon of error, error in determining guilt, and error in determining who among the guilty deserves to die." (Emphasis added.)

The reaction to Governor Ryan's pardons and commutations was explosive. Among those who left death row were some who had been proven to be sadistic rapists and murderers -- as well as those whose convictions were highly questionable.

Those who believe that death is a morally appropriate and necessary punishment demonized the Governor and denounced his clemency in the strongest possible terms. Among those who excoriated the Governor were the families of murder victims, prosecutors, and almost all the members of Illinois's political establishment.

Meanwhile, for opponents of capital punishment, Ryan became an instant hero. His decision, they hoped, soon would prompt other governors to follow suit - leading to a widespread revival of capital clemency in America.

Sadly, though, that hasn't happened. Instead, Governor Ryan's actions turned out to be a missed opportunity to change the terms on which we think about those condemned to death.

The Clemency Revolution that Never Happened

Until Governor Ryan's January 2003 decision, the long-held constitutional right of chief executives to spare life, according to one commentator, seemed to have "died its own death, the victim of a political lethal injection and a public that overwhelmingly supports the death penalty."

Look at the statistics: Over the last ten years, no more than 5 death row inmates had had their sentences commuted in any one year -- and each year, there were approximately 20 to 90 executions. In sharp contrast, several decades earlier, governors granted clemency in 20 to 25 percent of the death penalty cases they reviewed.

In Florida, for example one of the states most firmly in the "death belt" - governors commuted 23 percent of death sentences between 1924 and 1966. Yet in the 1990s, the number of Florida death penalty sentences commuted was exactly zero.

Moreover, the rarity of capital clemency is not just a southern, death-belt phenomenon. Since at least 1965, no Washington governor has ever intervened to overturn a death sentence, and in only one instance was an execution even postponed by a governor's action. Similarly, from 1964 to 2003, prior to Governor Ryan's clemency, clemency was granted in only one lone Illinois capital case.

As note above, after Governor Ryan's dramatic action, death penalty abolitionists hoped for an increase in the use of executive clemency to move inmates off death row. But it hasn't happened. Since January 2003, only seven people have been moved off death row as a result of gubernatorial commutation. And only four of those commutations occurred during 2004 - suggesting that the rate of clemency isn't rising, either.

The Flight From Mercy: Juries Have It, But Governors Seem to Lack It

Interestingly, juries now are giving death sentences to fewer and fewer murderers. Perhaps they have, in the back of their minds, the dramatic exonerations of others who were condemned to die. But more likely, if they have convicted the defendant despite knowing about such exonerations, what they have on their mind is mercy: The belief that mitigating circumstances suggest the person before them, though guilty, does not deserve to die.

Yet as juries have become more merciful, governors continue to be less so than in the past. They are the only ones with power to stop death once a person has been sentenced to death and avenues of legal recourse have been exhausted. But they refuse to use this awesome power - deferring to the courts' decisions instead.

The very point of clemency, though, is that it can be used even when a court has reliably adjudicated guilt and imposed a death sentence. For governors to decline to use their clemency power, is like a President saying he won't use his veto power because the legislature has already decided to pass a particular bill. The fact that governors abdicate this power doesn't mean they have lost it, only that they have let it fall into disuse.

The dramatic power to spare life is now used sparingly, if at all. Rather than applauding Governor Perry for giving the courts a chance to do their work - a decision which was correct, but obvious - we should regret that his act was yet another sign that mercy has been put on trial in the American criminal justice system and, in all too many cases, abandoned.


Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College and the author of Mercy on Trial: What It Means to Stop an Execution, which will be published by Princeton University Press in 2005.

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