Rejected Oklahoma plea for death penalty commutation highlights clemency’s changing role in US death penalty system

Oklahoma Attorney General Gentner Drummond. AP Photo/Sue Ogrocki^[15]

Clemency hearings like Glossip’s are proceedings^[16] in which opposing sides – representing the condemned and the government prosecutors – present evidence and arguments^[17]. In Oklahoma, family members of the victim are also given time to make their views known.

In 1998, the U.S. Supreme Court gave its approval to that kind of procedure when it held that clemency hearings must afford due process^[18] to the participants. The court said the condemned person must be given an opportunity to convince a clemency board that the government should not put them to death – just as the government gets to defend its decision to do so.

And, as my research indicates, that is what the government has almost always done^[19] when its representatives participate in such a process.

But not in the Glossip case. Drummond, his state’s top prosecutor, took the unprecedented step of siding with the petitioner – even against other state officials.

“I want to acknowledge how unusual it is for the state to support a clemency application of a death row inmate,” Drummond told^[20] the Pardon and Parole Board. “I’m not aware of any time in our history that an attorney general has appeared before this board and argued for clemency. I’m also not aware of any time in the history of Oklahoma when justice would require it.”

Clemency as grace – or justice

I believe Drummond’s reference to justice would have surprised many of this country’s founders.

For them, doing justice was a matter for the courts^[21]. Clemency was about something else.

In United States v. Wilson, a decision from 1833 and the first case about clemency to be decided by the United States Supreme Court, Chief Justice John Marshall made that distinction clear^[22]. Instead of equating clemency and justice, he called clemency an “act of grace, proceeding from the power entrusted with the execution of the laws.”

Clemency, Marshall continued, “exempts the individual^[23] on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is … delivered to the individual for whose benefit it is intended, and not communicated officially to the court.”

A little more than 20 years after Marshall wrote that, another Supreme Court justice, James Wayne, reinforced this separation of clemency and justice. He noted^[24] that clemency was about “forgiveness, release and remission.” Wayne said it was a “work of mercy … [that] forgiveth any crime, offense, punishment, execution, right, title, debt or duty, temporal or ecclesiastical.”

But over the course of American history, both public and judicial understandings of the purpose of clemency have changed, with grace, forgiveness and mercy being replaced^[25] by justice.

Clemency, especially in capital cases, has come to be associated almost exclusively with correcting errors made in trials and other legal proceedings. Clemency hearings are now generally just another arena to which inmates like Richard Glossip can appeal for justice.

This view reached its height in the 1989 Supreme Court decision Herrera v. Collins, in which the court said that “A proper remedy for the claim of actual innocence … would be executive clemency^[26]” – a commutation or a pardon granted by a governor or the president.

Clemency, the court continued – using language that neither Marshall nor Wayne would have recognized – “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”

One example of this use of clemency occurred in 1998, when Gov. George W. Bush commuted the death sentence of Henry Lee Lewis^[27] after what Bush said were “serious concerns … about his guilt in this case.”

Clemency is rare in capital cases

Richard Glossip. Oklahoma Department of Corrections via AP^[28]

Glossip, joined by Attorney General Drummond, sought clemency in the hope of preventing a miscarriage of justice like the one Bush cited as a reason to save Lewis’ life. Given the facts of Glossip’s case, what the Pardon and Parole Board did shocked many observers^[29]. But, from the perspective of clemency’s recent record in capital cases, the result should not have been surprising.

As my research has shown^[30], a century ago clemency was granted in about 25% of capital cases. But in more recent years, according to the nonprofit Death Penalty Information Center^[31], clemencies in capital cases have been “rare.” The center notes, “Aside from the occasional blanket grants of clemency by governors concerned about the overall fairness of the death penalty, less than two have been granted on average per year since 1976. In the same period, more than 1,500 cases have proceeded to execution.”

While the center does not indicate how often clemency was sought in those cases, requesting clemency is often a standard part of the efforts death penalty defense lawyers make^[32] to try to save their clients.

It is hard to get clemency in capital cases because, as the center explains, “Governors are subject to political influence, and even granting a single clemency can result in harsh attacks.” As a result, “clemencies in death penalty cases have been unpredictable and immune from review.”

And what is true nationwide is also true in Oklahoma where during the past half-century there have been only five grants of clemency in capital cases^[33].

Following the denial of clemency, Glossip’s lawyers have promised^[34] to keeping fighting and are asking both state and federal courts to stay his execution. Meanwhile Gov. Kevin Stitt has said^[35] he will do nothing to delay Glossip’s date with death.

Authors: Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College

Read more https://theconversation.com/rejected-oklahoma-plea-for-death-penalty-commutation-highlights-clemencys-changing-role-in-us-death-penalty-system-204708

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