Abolitionists Must Put Reviving Clemency in Capital Cases High on Their Agenda

Posted in: Criminal Law

Julius Jones, one of forty-six people now on Oklahoma’s death row, will be considered for clemency by that state’s Pardon and Parole Board next week. He is scheduled to be executed on October 28. Jones claims that he is innocent of the murder for which he was sentenced to death when he was 19 years old, a claim that is supported by substantial evidence.

His case, which from start to finish was tainted by racial bias, has attracted nationwide attention and renewed calls to re-examine the use of clemency in capital cases.

Against a background of capital punishment’s diminishing hold in this country’s penology and politics, individualized grants of clemency in capital cases remain rare.

It is time for abolitionists and others to pay attention. Many people whose cases and circumstances cry out for mercy should be high on the agenda for all who seek to end the death penalty.

In 2002, when Jones was sentenced for the shooting death of Paul Howell, Oklahoma executed seven people, making it one of the most aggressive death penalty states. From 1976 to 2015, the date of its last execution, it put 112 people to death, the most of any state other than Texas and Virginia.

At the start of this century, capital punishment, not only in Oklahoma, seemed to be a permanent part of America’s criminal justice system; grants of clemency in capital cases were very rare.

But today, almost two decades later, the situation has changed dramatically. We are in the midst of a national reconsideration of the death penalty, evidenced by dramatic declines in death sentences and executions. Moreover, the period since 2007 has witnessed the largest number of states abolishing capital punishment during any comparable time period in American history,

Yet, as an important study by lawyer Laura Schaefer and sociologist Michael Radelet points out, the use of clemency in capital cases like Jones’s has lagged behind this larger trend and not reflected that same abolitionist momentum.

As Schaefer and Radelet point out, “Only 82 commutations and five pardons have been granted on the individual merits of the case” since 1976. “That averages to about two commutations or pardons per year, and roughly one commutation for every 17.5 executions.”

These low numbers represent a radical shift from several decades ago, when governors granted clemency in 20 to 25 percent of the death penalty cases they reviewed. In Florida, for example, governors commuted 23 percent of death sentences between 1924 and 1966, yet no Florida death penalty sentences have been commuted since 1983. Similarly in Texas, since 1976 there have been only 2 commutations in capital cases.

In contrast to the rarity of clemency grants to individuals on death row, Schaefer and Radelet note that there have been 206 commutations and pardons included in what they call “broad grants of clemency.” These occur when governors have “emptied death rows, usually close in time to the abolition of capital punishment in that state.”

The Death Penalty Information Center reports that there have been seven such broad or blanket grants of clemency given to death row prisoners since 1976. Four of them have occurred since 2007, in New Jersey, Illinois, Maryland, and Colorado, each of which stopped using capital punishment entirely.

It is less risky for governors to use their clemency power when they have broad support for ending the death penalty than to go out on a limb and grant mercy to any particular death row inmate.

Even when they take such risks, governors almost always use grants of clemency to correct demonstrable errors or miscarriages of justice, like those that seem evident in the Jones case, rather than as exercises of grace or mercy. Rejecting appeals from the Pope, Mother Teresa, televangelist Pat Robertson, former prosecutors, and even judges and jurors in death cases, governors reserve their clemency power for cases which they can present as “unusual,” in which someone clearly has been unfairly convicted or whose conviction was tainted by racism.

Such a narrow and constrained view of the ground of clemency in capital cases is a departure from early to mid-twentieth-century practice, when many governors took a broad view of their clemency power.

Terry Sanford, Governor of North Carolina from 1961 to 1965, provides one example of such a view. “The courts of our state and nation exercise in the name of the people the powers of administration of justice.” Sanford said:

The Executive is charged with the exercise in the name of the people of an…important attitude of a healthy society—that of mercy beyond the strict framework of the law. The use of executive clemency is not a criticism of the courts, either express or implied…. Executive clemency does not involve the changing of any judicial determination. It does not eliminate punishment; it does consider rehabilitation. To decide when and where such mercy should be extended is a decision which must be made by the Executive.

More than three decades after the fact, our political leaders seem haunted by the memory of what happened to Michael Dukakis during his 1988 presidential campaign against then-Vice President George Herbert Walker Bush. During that campaign, Bush ran a series of advertisements, the so-called Willie Horton ads.

Those ads blamed Dukakis for supporting a policy that furloughed murders from prison while they were serving their sentences. These ads created a media rampage that turned the tide for Bush. They accomplished this by making a black man who brutalized a white couple the symbolic representation of Dukakis’s alleged soft on crime attitudes and policies.

But 2021 is not 1988. Fear of crime today is a less potent political issue than it was then. And support for the death penalty is lower while awareness of its flaws is higher than in the late 1980s. Even many prominent conservatives now are working to end capital punishment.

So great is the change that in 2020 every candidate for the Democratic nomination for president openly opposed the death penalty, and the country now has its first death penalty abolitionist as president.

Today’s governors have less to fear when they consider commutations and pardons in death cases than in the Dukakis days. But less to fear is different from nothing to fear. Exercising mercy requires courage and conviction to see someone worth saving in those who now populate this country’s death rows.

There is much work to do before we will see a revival of the spirit of mercy and, with it, grants of clemency in individual death cases.

That revival can come about only if opponents of the death penalty put it high on their agenda. Even as they work to highlight injustices of the kind that mar the prosecution, conviction, and sentencing of people like Julius Jones, they must make a place in their movement for a politics that values mercy—even for those who have been justly convicted of committing the most serious criminal offenses.


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