Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory

Thanks to this post at TalkLeft, I saw this effective article from Newsweek discussing California Governor Arnold Schwarzenegger's "difficult political and humanitarian choices in the battle over clemency for convicted killer Tookie Williams."  (As detailed in this AP story, Schwarzenegger met with defense lawyers and prosecutors today, and "Schwarzenegger's aides have said the governor could make his decision over the weekend or wait as late as Monday.")

As I have thought about the case and read a broad range of commentaries (many of which are linked below), I am struck by the fact that it is not clear how either of the traditional theories of punishment cut when it comes to the clemency decision facing Schwarzenegger.  To put the debate in the most simplified terms, one could readily say that, from a retributivist perspective, Williams' crime was blameworthy enough to merit the death penalty and thus his execution should not be stopped.  However, one could also say that, by virtue of his work over the last two decades, he is no longer one of the "worst of the worst" and thus no longer deserves to die.  Similarly, if one were to adopt a utilitarian perspective, one could reasonably claim that better consequences would flow from carrying out his death sentence or that better consequences would flow from a grant of clemency.

Of course, as is true in all of the most interesting criminal justice debates, many arguments made on both sides of the case involve a mix of traditional retributivist and utilitarian arguments, along with some other theoretical ideas (like educative and expressive concerns).  In addition to adding to the drama in the build up to Schwarzenegger's decision, these theoretical realities also have me very interested to see how Schwarzenegger frames and defends whatever decision he makes.

• December dramas for the death penalty
• Talking Tookie (includes link to clemency petition)
• Talking more Tookie (includes link to filing opposing clemency)
• Still more buzz about executing Tookie
• Timely article about executive clemency
• Clemency in Virginia delays execution 1000
• More thoughtful commentary on clemency and the Williams case
• Competing op-eds on Tookie and clemency

UPDATE:  Shavar Jeffries over at blackprof.com now has this interesting post entitled "Clemency for Tookie and Utilitarianism."  In addition, TalkLeft has more Tookie coverage here and indicates we might get a decision from Gov. Schwarzenegger by late Friday.  And here is another good press piece on the clemency issue presented to the Governor.

ANOTHER UPDATE:  Dan Markel now has this Findlaw guest column today about clemency, Tookie Williams, and the death penalty.  My sense is that Dan's arguments reflect a number of interesting (and contestable) claims based in retributivism.