The Demise of Capital Clemency


The Demise of Capital Clemency

Dec 16, 2016 1 min read
Paul J. Larkin

Rumpel Senior Legal Research Fellow

Paul is a senior legal research fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.

Over the last four decades, numerous commentators have criticized the institution of executive clemency. Opponents of capital punishment have been particularly vocal. Their principal complaint has been that, with a few isolated exceptions, far too many chief executives have granted condemned prisoners clemency far too infrequently. This is an unfortunate development—critics argue—one due entirely to the politicization of criminal justice, particularly on the subject of capital punishment. Governors are unwilling to risk their political future by commuting the sentences of condemned prisoners absent proof of their innocence—the argument goes—because they anticipate receiving few political benefits from extending mercy to killers, and they fear being tarred with the label “soft on crime” in their next campaign. Perhaps what frightens governors most of all— critics maintain—is the prospect that commuting a condemned prisoner’s sentence could ultimately lead to his release and his commission of new, horrific, but preventable, crimes.

This Article maintains that these criticisms are unfounded or overstated. Part II describes the new procedures that the federal and state governments have instituted to satisfy constitutional capital sentencing requirements that did not exist when governors regularly granted condemned prisoners clemency. Part II also identifies some of the criticisms leveled against the use of clemency in capital cases over the last forty years. Part III addresses the question of whether governors should use their clemency power whenever there is a risk that a condemned prisoner is innocent. Part III concludes that a governor should not merely grant clemency, but also issue a pardon to any offender who proves to be innocent of his crime, but notes that the instances in which that scenario might occur are few and far between. Part IV deals with the argument that chief executives have failed to sift out those cases in which death is an inappropriate penalty for a particular offender. It concludes that, given the numerous opportunities for the jury and state courts to spare those offenders, there is far less need today for a governor to second-guess the unanimous view of the local community and state judiciary that a death sentence is the appropriate punishment. Finally, critics do not address the horrific facts of some capital cases—facts that can signify that death is the appropriate penalty.

**The full text of this article can be found here.

This piece first appeared in the Washington and Lee Law Review.

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