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July 8, 2013

Effective review of modern state clemency procedures as Kentucky's is challenged

This recent AP article, headlined "Kentucky Alone In Lack of Formal Clemency Procedure," provides an effective review of different states' different approaches to the clemency process.   Here are excerpts:

The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.

A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators. "The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."

Since the reinstatement of the death penalty in 1976, two condemned inmates in Kentucky have gotten reprieves and right now, the state is barred from executing anyone until a judge decides on the legality of the drugs used. The state has executed three people in that time.

Two death row inmates are challenging that power and the way the clemency system itself is set up. Robert Foley and Ralph Baze are awaiting execution for multiple killings. They filed suit in May in Franklin Circuit Court, asking a judge to halt executions until a new set of procedures will clearly spell out rules.

The attorney for the inmates, Meggan Smith, said if the clemency procedures were more open, inmates seeking a commutation or pardon may have a better chance and everyone involved would better understand how the decision is made. "What we are seeking is an open, transparent procedure, which will benefit the Commonwealth, victims' families, those seeking clemency, and the public in general," Smith said.

Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri....

Ruckman found the challenge to the clemency process novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.

Thirteen states - Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, Montana, Oklahoma, Pennsylvania, South Dakota and Washington - mandate a hearing when a clemency petition is filed.

Fifteen states - California, Georgia, Idaho, Louisiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New York, Tennessee, Texas and Utah - grant the governor or pardon board discretion to set a hearing when they determine one is necessary.

Two states - Alaska and Colorado - provide victims or others the opportunity to submit written comments on pending clemency petitions. Two states -Iowa and Kansas - permit a pardon board or governor to interview key witnesses concerning a petition.

Other states have a mix of processes, with the governor having to explain clemency decisions to lawmakers in some cases, while states such as South Carolina have an outside board make clemency decisions.

The president has almost unlimited discretion to grant clemency under the federal system. "When all is said and done, Kentucky leans toward the federal model," Ruckman said.

July 8, 2013 at 08:51 AM | Permalink


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I don't see this going anywhere. "Franklin circuit court" makes me believe it is at least in state court (where any such challenge belongs), but succeeding on a claim that the state constitution somehow implicitly forbids a division of power that most states started with (and that the federal government also has - more or less) seems like an all but impossible task.

Further, my understanding is that in most cases the processes the article describes came about specifically to limit the governor's very ability to grant clemency, not to offer any sort of aid to the convicted. I don't see how having a formal process designed to result in denials is any better from the prisoner's perspective than a system that would allow the governor to draw names from a hat and grant reprieves upon a whim.

Posted by: Soronel Haetir | Jul 8, 2013 3:51:19 PM

I agree with Soronel's take on it. In Kentucky, the governor may grant or deny clemency for any reason or no reason. He may grant all requests or ignore all requests. It is his plenary power and, under a constitutional separation of powers, no business of the judiciary.

This is nothing more than an attempt by convicted criminals to proceduralize an act of grace -- an act, that is, which by definition comes about not because of any legal entitlement but simply out of good will or mercy. The defense bar knows this; it wants procedures instituted for one reason only: So that it can file additional dilatory law suits claiming the manufactured procedures weren't followed.

There's a lot of stuff in this world that needs attending to. Judicially creating extraconstitutional procedures on top of the myriad of statutory ones already required is not among them.

Posted by: Bill Otis | Jul 9, 2013 8:32:46 AM

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