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September 19, 2013

"Rethinking the Timing of Capital Clemency"

The title of this post is the title of this notable new paper by Adam Gershowitz which now is available via SSRN.  Here is the abstract:

This article reviews every capital clemency over the last four decades.  It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals — years or even decades before the habeas process was concluded.  Yet, when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare.

Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation.  This article documents nearly 300 years of wasted habeas corpus review.  Additionally, last-minute commutations harm the victims’ families by delaying closure for years.  And placing clemency at the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases.  This article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.

September 19, 2013 at 09:02 AM | Permalink


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I don't know. Seems like there is something wrong with the argument here. It sounds a bit like saying, "you always find something the last place you look."

A reason may be "known" earlier but it may not be the only reason asserted at the time. It may not even be the primary reason asserted by the defense. If a reason is part of a desperate shot gun spray approach by the defense, whose fault is that? It also seems pretty clear to me that a reason "known" earlier might attain legitimacy as more information comes in, with time. That isn't a fault of "the system" so much as it is a fact of life. (Of course, reasons can lose legitimacy over time as well_. It also seems intuitive to me that harm to the last-minute clemency recipient's family is no greater / more valuable than potential harm done to a murder victim, his/her friends and family if clemency granted before full review by the courts.

Posted by: P.S. Ruckman, Jr. | Sep 19, 2013 9:48:51 AM

I don't know about other jurisdictions, but I am unaware of anything in my state's laws that require all other review to be done before an inmate can appeal for clemency. The decision to delay until the last second is made by the inmate's counsel. Whether they are delaying because they want to make sure they have every possible piece of information or because they see it as a "Hail Mary" pass-type situation is something only they can answer.

Posted by: tmm | Sep 19, 2013 2:38:42 PM


I've seen plenty of indications that clemency petitions are actually entered fairly early in most capital cases, but the governors simply sit on them. And if that pattern is actually common it shouldn't be all that surprising. A governor doesn't want to take political heat for a clemency grant when the case may well go away for other reasons. Not acting may even give the governor extra political ammunition, railing against those damn judges or whatever.

As for saying to move clemency examination ahead of judicial proceedings, that would be great if a denial could actually bind a future governor (or even a change of mind by the current office holder), but that's simply not going to happen, nor do I particularly believe it should. The clemency power is generally vested with the office holder and I don't see moving clemency filings forward to be much of a gain in that context. Especially not if the judicial proceedings were put on hold while the governor examined the case with no requirement that the governor act within any specified time frame.

Posted by: Soronel Haetir | Sep 19, 2013 7:09:15 PM

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