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Friday, December 09, 2005

Why Redemption-Based Clemency for Tookie is the Right Action For the Wrong Reason

Over at Findlaw, I have a column explaining my thoughts about the Tookie Williams case, which was presented before the Guvinator yesterday for his consideration.

On Tuesday, December 13, Stanley "Tookie" Williams is scheduled to die. Gov. Arnold Schwarzenegger of California might still decide whether to extend clemency to Williams by commuting his sentence to one of life imprisonment. Why would Schwarzenegger consider clemency for Williams? Convicted of four robbery-murders 25 years ago, Williams also founded the Crips, a gang whose members have left streets and prisons terrorized and blood-soaked across the nation.

According to his supporters, Williams warrants clemency on account of his exemplary behavior over the last dozen years he's spent on death row. Upon emerging from solitary confinement for six years, Williams turned over a new leaf, becoming a model prisoner. He's authored children's books and performed outreach (by telephone) to mediate or reduce inter-gang violence and disputes. And, as a result of his apparent transformation, he has since garnered the support of 30,000 people who have signed a petition advocating clemency, including many celebrities.

Because of the redemption-based arguments made by his advocates, or the frenzy of celebrity support in favor of Williams, there's a risk that Gov. Schwarzenegger will do the right thing (extending clemency) for the wrong reason (Williams's personal redemption). Here's why.

Governors Should Not Be Judging Who Has Been Reformed the Most

Governors (or presidents) committed to the rule of law should resist using their clemency power to single out someone like Williams for special treatment, simply on the basis of his personal reform. That's because to extend clemency on that basis alone extends a sentencing discount to Williams that is not practically available to other similarly-situated offenders who may also have exhibited genuine reform and contrition--but were not lucky enough to catch the Governor's attention. That disparity violates our embedded commitment to equal justice under law.

Moreover, even if Governor Schwarzenegger promised to consider the redemption arguments of all future clemency seekers, that policy would still be problematic--though, granted, it would be an improvement upon simply bestowing leniency to Williams alone. The problem there is that in a well-working democracy with separation of powers, it's not the executive's role to make the law. That task is for the legislature to perform. The governor's job, instead, is to ensure faithful administration of the law.

Thus, a governor who suddenly announces that all offenders who exhibit personal reform are eligible for sentencing discounts - without any prior authorization to do so from the legislature - is creating a policy better left to the legislature to contemplate. Democratic authorization helps ensure - though it does not guarantee - that the reason chosen for extending a sentencing discount is not an arbitrary one (such as, the crime occurred on Tuesday) or a biased one (such as, the offender was also a bodybuilder).

To be sure, Schwarzenegger does, through his office, have wide discretion regarding the grant of clemency. But that discretion shouldn't be abused. Instead, the power of clemency should be used to ensure fidelity to bedrock principles embedded in the fabric of constitutional democracy.

Williams Should Be Spared - Along With All Death Row Prisoners

Extending clemency to Williams is the right thing to do, in my view, but not because Williams reformed himself. Rather, it's because Schwarzenegger, as a state official, has a co-equal responsibility to implement the Constitution, and constitutional values are ruptured through the continued use of the death penalty. In other words, Tookie should be spared from death row simply because death row should be shut down.

As Governor Ryan in Illinois observed when he announced his blanket commutation of death row, the administration of the death penalty is infested with the pestilence of error and arbitrariness. Last month, the Houston Chronicle reported compelling evidence that, just twelve years ago, Texas executed an innocent man named Ruben Cantu. And other, similar cases like that are popping up increasingly, most recently in Texas and in Missouri.

Overall, over 120 death row inmates have been exonerated since 1976--even after being convicted "beyond a reasonable doubt" under the extra procedures the Supreme Court has insisted upon for capital cases. A proper concern with accurately sorting the innocent from the guilty requires the state to punish with sobriety, restraint, and also modesty. When other means are available to advance the goals of expressing social condemnation for the apparent perpetrator's acts, and protecting society from a person found to be dangerous to its members, the state should refuse to impose a punishment that prevents it from later acknowledging--and making amends for--its own wrongful acts to its own unintended victims. In sum, it's becoming clear that if executions persist, so will mistaken executions.

An additional reason for intervention, here, is the unfairness that characterizes the use of the death penalty. Statistically, the death penalty is more often meted out on the morally arbitrary basis of the race of the victim, or the geographic location of the crime, than on factors such as the crime's seriousness. In this respect, imposition of the death penalty violates the Eighth Amendment's ban on cruel and unusual punishments -- historically understood as barring arbitrary and discriminatory punishments. Knowing what we know about our society, it's hard to maintain the assumption that the death penalty can be both fairly and accurately inflicted.

Procedural Injustices Are More Than Sufficient For a Clemency Grant to Williams

Williams's case, in particular, presents cause for concern. He was tried during a period when his mental competence was questionable. He has long denied responsibility for the crimes with which he was charged--even though he accepted responsibility and apologized for his role as founder of the Crips. He presented alibi evidence that the jury apparently discounted or ignored. He was convicted largely on the basis of testimony of government informants who had a strong motive to lie in their testimony: reductions in their own sentences. Additionally, the prosecutor in Williams's case, who had been publicly admonished by the California Supreme Court for a pattern of improper jury challenges based on race, had removed all blacks from Williams's jury. Finally, and more recently, Williams has alleged that the government suppressed exculpatory evidence.

These reasons do not necessarily mean that Williams was innocent of the heinous crimes of which he was convicted. But, together, they suffice to stay the hand of the executioner - for they show that Williams's trial raises a reasonable possibility that he may be innocent, or at least, unfairly convicted.

Schwarzenegger Should Act Justly, and Broadly

The broken system that Governor Ryan condemned, when he commuted the sentences of those on Illinois' death row, was not unique to Illinois. Error infests the criminal justice system in California, as much as it does in Illinois or Texas.

Schwarzenegger, like Ryan, should be brave enough to say that a broken system - one that leads to the imposition of the death penalty on morally arbitrary or discriminatory grounds -- offends constitutional values. So it is a time for action.

Some have suggested that Williams should receive clemency to demonstrate Schwarzenegger's courage or capacity to be merciful. As I've elaborated elsewhere at greater length, I disagree. Mercy is the proper prerogative of God and punishing mothers--not the state. Instead, Schwarzenegger should simply be modest and just.

Not by sparing Williams alone, but by commuting the sentences of all those on California's death row. And not in the name of mercy, but in the name of justice.

Posted by Administrators on December 9, 2005 at 07:59 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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Bravo. I think this is one of the best things you've written. I agree 100%. I've thought of the problem differently: that the reason that the death penalty is bad is because the state should not be in the business of killing its citizens under any circumstances. I find the argument that Camus makes that execution is not simply murder but akin to kidnapping someone, sticking them in a basement and telling them "I will kill you on this date." That view, of course, skirts over the evil of the people being executed. So while I don't completely buy the equivalency argument, I've always thought that by executing people the state says: killing is not wrong, it's just the circumstances of the killing that is wrong. That cannot help but lead people to believe that under certain circumstances it is OK for them to kill others as well, acting against the interests of general deterrence.

Excellent piece.

Posted by: Bart Motes | Dec 9, 2005 11:10:27 AM

I have to disagree. Although the insistence on the equal dispensation of justice to all similarly situated persons is obviously a cardinal aspiration of any sound system of juridical punishment, the practice of executive clemency does not necessarily involve giving people what they deserve, retributively speaking. Indeed, it may (and in practice often does) involve giving defendants precisely what they don't strictly speaking deserve, namely less than the full measure of justly imposed punishment. Reasonable minds might disagree about whether Williams’s post-conviction rehabilitation is a sufficient ground for commuting his death sentence, but since no one has a right to demand this species of forgiveness, the issue of the equal treatment of others simply does not arise. So long as each person gets what he or she deserves from the judicial system, no one has a legitimate basis for complaint if they do not receive clemency from the executive. This leaves executives with the flexibility to be merciful in cases of “unfortunate guilt,” in Hamilton’s phrase. (On this point, see, e.g., Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464-65 (1981)).

There is, moreover, a contradiction -- or at least a tension -- in Dan's argument from democracy. On the one hand, he rightly insists that, for separation of powers reasons, "it's not the executive's role to make the law. That is the task for the legislature to perform. The governor’s job, instead, is to ensure faithful administration of the law.” On the other hand, his main argument for commutation is that, for reasons of broad social policy having to do with the administration of the death penalty, “death row should be shut down.” While I’m sympathetic to the concerns he raises, isn’t that precisely the sort of policy judgment that is typically left to the legislature and the political process? If there’s something wrong with an executive’s discretionary decision to extend mercy to one person, then how can it be democratically justified for a single decision-maker to overturn an entire legislatively authorized scheme of punishment? If this is a justified use of the clemency power, wouldn’t it authorize the executive, in his unreviewable discretion, to constantly second guess the wisdom of any provision of the penal code he disagrees with? How is that consistent with democracy?

It is also true, to be sure, that Dan raises the possibility that there were procedural irregularities in Williams’s case that are sufficient to ground a retributively-justified commutation, but it is at least instructive that his own lawyers apparently have not made that argument. It thus seems to me that Williams’s only hope is an appeal for mercy.

Posted by: Sam Morison | Dec 9, 2005 2:56:14 PM

I think Sam is exactly right in spotting a real tension in Dan's efforts to make structural arguments against a claim for redemption-based clemency: Dan seems to be saying that creating a policy of granting sentencing discounts via clemency is a job only for a legislature, but then says the Governor should "enforce" a (highly suspect) view of the Constitution, even though many state and federal courts have concluded that the Constitution is not violated by the DP in general or by this death sentence in particular.

Put another way, Arnold could plausibly say that his legislature might favor granting sentencing discounts for extreme redemption (at least to folks like Tookie who are only seeking to move from death to life), but he cannot say on this record that a court might find this sentence is unconstitutional.

Perhaps have our cake and eat it to, how about if Gov. S granted a conditional pardon to Tookie: his sentence is commuted to life unless and until the legislature enacts a law rejecting a policy of extreme redemption clemency. Alternatively, couldn't we merge all these issues by having Gov. S. award clemency on the theory that the Constitution uniquely demands an "extreme redemption discount" in a case of this sort (similar to how SCOTUS has said the Constitution demands that states cannot have a mandatory death penalty)?

Notably, if the Constitution does demand an extreme redemption discount in capital cases, the only way to "enforce" this (plausible) right might be through the exercise of clemency.

Posted by: Doug B. | Dec 9, 2005 4:06:29 PM

There are a lot of problems with this column. First, for the reasons noted above, Dan's argument does seem a bit like this: "How can we stop the death penalty? Hmmm... Let's try this rationale here, and then chuck it for another rationale here." That is politics, not law.

Second, the equal protection argument seems shaky. Under the EPC, similarly situated people have to be treated equally. Someone who "redeems" himself is not similarly situated to an unrepentant (and I mean that in the secular sense) killer. Your argument that granting clemency would be unfair because clemency would "not practically available to other similarly-situated offenders who may also have exhibited genuine reform and contrition--but were not lucky enough to catch the Governor's attention," is way out of touch. I've worked on two post-habease death penalty cases, and I'll bet you have (or soon will.) There are plenty of people looking to stop executions. The idea that someone who was redeemed would escape a California Governor's notice is ridiculous.

Posted by: Mike | Dec 9, 2005 6:23:42 PM

In order to qualify for some variety of redemption, in the eyes of religion, or in the eyes of the state, Stanley "Tookie" Williams, or any other criminal, would have to first admit that they committed a crime. Redemption can only come after the guilty can confess their crime (or sins), and try to overcome their guilt through beneficial work, or religious study.

Tookie, to date, has not yet admitted guilt. If admission of guilt is a pre-requisite of redemption, Tookie has not yet redeemed himself. As a unredemptive criminal, I would deny Tookie the opportunity to live the rest of his life in prison without parole. Tookie must be executed.

So that you understand, this is a man who co-founded one of the most murderous gangs in the history of Los Angeles (or the world, for that matter), in addition to murdering 4 people. For that reason alone, I would prevent this man from being the living iconoclast of life as a gang member, or anything thereafter. He is unredemptive, and has never admitted to committing the murders that trials have convicted him of several times over.

Posted by: Kim Grant | Dec 9, 2005 7:33:49 PM

Has there ever been a study of the state of mind of victim families after the execution? Not soon afterwards but perhaps five, ten years later. It would be worthwhile to determine if after sufficient time has passed, capital punishment does indeed provide a sense of relief and solace (provided of course, that they expected the death of the perpetrator to bring about such a closure in the first place).

I agree with the substance of this post that clemency should not hinge upon redemption - perceived or real. Our current prison system is geared to punish - not redeem or rehabilitate prisoners. As of now, the question should simply be whether our society should or should not execute criminals. In fact when we start focusing on redemption or repentance, there is a tendency to soften the image of unsavory characters and hardened criminals which is often unconvincing and offensive to victim families. A much harder but principled stance would be to debate if we can live with the notion of not executing murderers, rapists and terrorists.

Posted by: Ruchira Paul | Dec 10, 2005 12:51:39 AM

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