Justice Denied: Clemency Appeals in Death Penalty Cases.

Justice Denied: Clemency Appeals in Death Penalty Cases

Cathleen Burnett Northeastern University Press www.nupress.neu.edu 251 pp., $47.50

On January 11, 2003, then Gov. George Ryan of Illinois commuted the death sentences of 167 prison inmates convicted of the murders of more than 250 people. Since 1915, three prior governors from other states have emptied death row on leaving office, though not in Ryan's numbers. Two others commuted all death penalties during their terms.

Despite these occasional large-scale exercises of clemency power, Cathleen Burnett, in her timely book Justice Denied: Clemency Appeals in Death Penalty Cases, argues that the clemency process is not a fail-safe system for addressing endemic problems in capital cases. She examined 50 clemency petitions filed in Missouri, from 1977--after a new death penalty law replaced an earlier, unconstitutional one--to 2000.

As Burnett points out, governors have broad powers in issuing pardons, clemency grants, and sentence delays or reprieves. Of 38 states with the death penalty, 25 give the governor full authority. In the other 13, a clemency board controls the decision, with all but three also involving the governor in some role.

The author reports that from 1977 to 2000, 162 people were sentenced to the death penalty in Missouri. Because of appellate delays, no executions took place until 1989.

From 1989 to 2000, 50 people were scheduled for execution and filed petitions with the governor, who granted three of them stays and two of them clemencies, including one of the three granted a stay. The governor granted one of the petitions because the inmate's scheduled execution coincided with Pope John Paul II's visit to St. Louis, and the pope made a "direct and personal appeal" for the clemency, according to the governor's announcement.

The remaining 46 people were executed, making Missouri fourth in the country in implementing the death penalty, behind only Texas, Florida, and Virginia.

Burnett is clearly opposed to "state-sponsored killing," but her principal target is the clemency petition's failure to effectively address what she calls "systemic flaws rather than unique occurrences" in the administration of the death penalty. She uses excerpts from the petitions she reviewed to demonstrate flaws and constitutional violations at the police, prosecutor, defense-attorney, trial-judge, and appellate-court levels; she claims the clemency procedure should address these but fails to do so.

Accepting as valid the claims made in the clemency petitions, she argues that significant errors in the administration of justice--sometimes even the execution of the innocent--do slip through the judicial process.

Burnett believes there is little chance that the governor-based clemency process will address these serious errors, given the political risk in granting clemency when a majority of Americans support the death penalty. Supporting her view is the fact that even governors who grant wholesale clemency, like Ryan, typically do so at the end of their time in office.

Although Burnett argues that constitutional violations by police, investigative mistakes, and overzealous prosecutors contribute to the unfair administration of the death penalty, her most persuasive chapter addresses the inadequacy of the defense bar. Some states compensate appointed counsel in death penalty cases so poorly that the money does not even cover office costs. A surprising number of defense attorneys in the cases she examined were unaware that the penalty phase in a capital case is separate from the guilt phase and accordingly, requires different preparation.

Amazingly, she reports that in 11 percent of the cases she studied, the defense did not introduce mitigating evidence during the penalty phase, though the right to do so is one of the major reasons why the penalty phase is separate from the guilt phase. The Supreme Court in Lockett v. Ohio (438 U.S. 586 (1978)) ruled that a defendant has this right in death penalty cases.

Although it is hard to agree with Burnett's unquestioning acceptance of a 1992 study by an anti-death-penalty group claiming that 300 innocent people have been sentenced to death in this country since 1977, it is easy to believe that indigent defendants in capital cases do not receive the representation that should be required before the government exercises the gravest of all its powers.

Executive clemency is particularly important in cases involving actual innocence. Surprisingly, newly discovered evidence pointing to innocence may not be reviewable by the courts. State appellate rules may limit the time during which new evidence may be reviewed, and federal habeas corpus review emphasizes constitutional violations, not guilt or innocence.

Executive clemency, on the other hand, is well suited to reviewing claims of actual innocence, Burnett writes. The political repercussions of granting clemency may be reduced if a governor appears to be protecting a person who was unfairly convicted. Burnett cites a study indicating that 13 percent of all successful clemency petitions are based on doubt about guilt.

Much of the book's focus is on the unfairness of the current federal habeas corpus review process. While direct appellate review of due process violations remains in full force, a prisoner's ability to attack a conviction in federal court using civil habeas corpus petitions has been severely curtailed in recent years by the conservative Supreme Court and Congress. This limitation places an even greater burden on the executive clemency process.

Unfortunately, Burnett is unable to explain why some clemency petitions succeed while most do not. Even her suggestions for reform are limited--most involve making the investigation and prosecution of crime more professional, improving the defense bar so convictions are more reliable, and restoring more liberal habeas corpus review.

One result of Ryan's dramatic gesture may be that governors will become more aware of the mistakes made in death penalty cases and will not assume that the judicial process has provided adequate protection of constitutional rights. Burnett argues that considering these possibilities is the proper role of a governor.

Of course, the opposite may be true as well: The political firestorm may make governors afraid to take the public heat in such a high-profile matter.

James McGoldrick is a professor at Pepperdine University School of Law in Malibu, California.