The Moral Importance of Clemency

By Earl Ofari Hutchinson, Pacific News Service. Posted November 22, 2005.

LOS ANGELES--As California Gov. Arnold Schwarzenegger ponders the fate of death-row inmate Stanley "Tookie" Williams, he might examine the political fortunes of Sen. George Allen, former governor of Virginia.

In 1990, residents of Danville, Va., were shocked at the execution-style murder of a local businessman during what police described as a bungled drug deal. A jury swiftly convicted William Saunders of the killing. The betting odds were that Saunders would get the death penalty. The odds were even greater that he'd be executed. Virginia ranks close to Texas as an "execute em' quick, and in large numbers" death penalty state.

Guilt was not an issue in his case -- Saunders purportedly killed in cold blood. But later he had a jailhouse epiphany, and had become a strong advocate against drugs and violence. There were also hints of improprieties in his sentencing. Authorities praised Saunders as a changed man.

Governors are scared stiff of being tagged as soft on crime and of subverting the people's will. They routinely duck and run from granting clemency to convicted murderers. Yet, in Sept. 1997, conservative Republican Gov. George Allen did what many thought unthinkable: He spared Saunders' life.

Six months after granting clemency to Saunders, Allen's approval rating was far higher than a year earlier. Allen's clemency grant may not have caused his approval rating to climb, but the act didn't hurt him. This defied the conventional wisdom that outraged voters punish governors who grant clemency to death row inmates. Allen's political career didn't miss a beat. He left the governors post, then ran and won a Senate seat.

Allen is no aberration. In the decade since 1993, 15 governors have granted clemency in capital punishment cases, mostly on humanitarian grounds. Only one of the governors failed to win re-election. In nearly every case, the approval ratings of the governors who granted clemency remained steady or climbed.

That's no guarantee that if California Gov. Arnold Schwarzenegger grants clemency to Stanley "Tookie" Williams, scheduled for execution Dec. 13, there'll be an instant numbers reversal in his plummeting popularity. But clemency won't be the death knell for Schwarzenegger's re-election bid.

Nor was it for the governors who granted clemency during the 1950s and 1960s, when the death penalty was commonly used. In those years, governors granted clemency to roughly one in four death row inmates. California Gov. Pat Brown topped that rate. During the late 1950s and 1960s, with no public outcry, Brown granted clemency to one out of three death row inmates.

That abruptly changed after the Supreme Court reinstated capital punishment in 1976. Since that time, governors have cringed at being branded as soft on crime and insensitive to victims, and they also believe they will go down in flaming political defeat should they grant a clemency appeal. They distort, ignore or misread the legal and moral importance of clemency.

Supreme Court Chief Justice William Rehnquist, never one to be mistaken for a bleeding heart on crime and punishment, put clemency in the right frame. In the 1993 Herrera v. Collins decision, he called clemency the "fail-safe" that governors have at hand to right a legal wrong or prevent a miscarriage of justice. It's also their legal means to simply do the humane thing when it serves justice.

Rehnquist's apt read of what clemency is supposed to be about is doubly important because the Court in that same case severely narrowed the grounds in which federal courts could intervene and grant habeas corpus to a prisoner who claimed innocence in a capital case. That further added to the burden held by prisoners who seek legal relief in courts. Judges are loath to overturn lower court convictions in death penalty cases even when there are outrageous examples of prosecutorial misconduct, witness tampering or the use of flimsy or non-existent physical evidence to obtain convictions.

In many death row cases today, governors act only when there is ironclad proof that a death row inmate was legally insane when he or she killed. Despite some evidence of mental impairment, Schwarzenegger refused to grant clemency to Donald Beardslee earlier this year. He flatly said that clemency should not be used to undo the judgment of the people, and that he'd spare a life only when there is absolute legal and clinical proof that a condemned killer was insane. That shoves the clemency bar past the point of relevance.

Tookie Williams doesn't come close to passing Schwarzenegger's clemency test. William's appeal comes down to whether his good deeds and commendations -- including one from President Bush and other world figures -- convince Schwarzenegger that he deserves to live. Good deeds in prison haven't been enough to sway most governors to grant clemency. Still, the few times that governors have bucked the death penalty crowd and spared a life, it has not been the political kiss of death for them. It won't be Schwarzenegger's, either.

Earl Ofari Hutchinson is an author and political analyst. He is the author of 'The Crisis in Black and Black' (Middle Passage Press).

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