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Tuesday, November 29, 2005

Clemency, the Death Penalty, and "Personal Reform"

Here is an interesting piece:  "Death Row:  Does Personal Reform Count?"  It opens with this:

Exactly 229 death-row inmates have been granted clemency since the United States reinstated capital punishment in 1976, and the list of reasons is short. The 16 governors who have given such pardons cited just three reasons: lingering doubt about guilt, a governor's own philosophical opposition to the death penalty, and mental disability of the accused.

Starkly absent from the list - notable because of a high-profile clemency request now pending in California - is character reform of the guilty.

After discussing that California case (involving "Tookie" Williams, the founder of the Crips and a "four-time murderer"), the essay continues:

"If he goes ahead and puts to death a man who has clearly shown he has turned himself around, [and] is not the man he once was, what does that say to all other prisoners who are similarly incarcerated and are trying to reform themselves - that personal reform doesn't matter?" asks Jan Handzlik, a member of Williams's defense team.

Similarly, what message does a commuted death sentence send to prosecutors and law-enforcement officers, who daily work to fulfill the requirements of the legal system to obtain proper prosecutions? Or to victims' families and other convicts?

"It sends the worst signal to the criminal element if you commute someone," says Michael Paranzino, who runs a nonpartisan research group dedicated to crime victims and their families. "What are other criminals supposed to think ... that if you suddenly write poetry, say all the right things, and find a champion on the outside that you get a 'get out of jail free' card?"

Because of all this, "clemency is a very lonely decision," says Margaret Love, former head of the pardon office in the US Justice Department. "It is a question of how to blend mercy with justice, the human and the legal in light of all circumstances before you, with life on the line."

Putting aside (for now) questions concerning the morality or wisdom of capital punishment, and putting aside also (for now) any questions about the scope, under the relevant legal regime, of an executive's clemency power, should clemency be extended on the (sole) ground that a convict has reformed?

Posted by Rick Garnett on November 29, 2005 at 10:12 PM in Criminal Law | Permalink


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Why does there need to be an incentive for death row inmates or life without parole inmates to reform? If they're never going to be released into society, why should we care?

Posted by: FXKLM | Nov 30, 2005 12:03:58 PM

Rick, my answer is available at greater length here:
The short answer: I think it's compatible with retributivism (and therefore acceptable/desirable) for legislatures to scale punishment to the social cost of the offense, and that might include whether someone has been on good behavior after they are arrested, convicted, etc. However, if the executive branch is making the decision on a one-off basis, then no, clemency shouldn't be extended solely as a function of personal reform. Personal reform involves accepting responsibility for one's wrongdoing and being willing to evidence that acceptance by shouldering the consequences of that wrongdoing. (On the other hand, you know my anti-death penalty views, and that supersedes; in effect, that calls for the blanket commutation of death row...removing horizontal inequality issues too.
Sam Morison has a new piece on the politics of grace in the new issue of Buffalo Crim. L. Rev., disagreeing with my "justice-restricted" view of clemency. He and Steve Garvey, along with Austin Sarat in his Findlaw column on Tuesday, think clemency is better understood and practiced as the product of executive grace/courage.

Posted by: Dan Markel | Nov 30, 2005 12:43:24 AM

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