Analysis: Why Executive Officials Grant Clemency

In a new analy­sis, the Death Penalty Information Center has found that exec­u­tive offi­cials most often cite dis­pro­por­tion­ate sen­tenc­ing, pos­si­ble inno­cence, and mit­i­ga­tion fac­tors such as intel­lec­tu­al dis­abil­i­ty or men­tal ill­ness as rea­sons to grant clemen­cy in cap­i­tal cas­es. Ineffective defense lawyer­ing and offi­cial mis­con­duct are also com­mon fac­tors in clemen­cy grants. While present in few­er cas­es, sup­port for clemen­cy from the victim’s fam­i­ly or a deci­sion­mak­er in the orig­i­nal tri­al, such as a pros­e­cu­tor or juror, appears to have a pow­er­ful impact. Prisoners fre­quent­ly offer evi­dence of reha­bil­i­ta­tion and remorse at clemen­cy hear­ings, but this evi­dence is cit­ed less often by officials.

The most com­mon cat­e­go­ry of clemen­cy grants was ​“com­par­a­tive culpability/​excessive sen­tence,” which includ­ed cas­es where the offi­cial felt that the pris­on­er had been pun­ished more harsh­ly than sim­i­lar­ly cul­pa­ble peo­ple, such as co-con­spir­a­tors in the crime or oth­er pris­on­ers in the state. This fac­tor was present in near­ly 40% of cas­es and illus­trates the unpre­dictabil­i­ty and arbi­trari­ness of the death penal­ty process. Many of the pris­on­ers received a death sen­tence because their co-defen­dant took a plea deal to tes­ti­fy against them, even if the co-defen­dant played a larg­er role in the crime. In at least sev­en cas­es, the pris­on­er had been sen­tenced to death even though anoth­er per­son killed the vic­tim, and in near­ly all of those instances the actu­al trig­ger­man received a life sen­tence or less. For instance, Harold Glenn Williams was sen­tenced to death for the mur­der of his grand­fa­ther in 1980, while Harold’s half-broth­er Dennis was con­vict­ed of vol­un­tary manslaugh­ter and sen­tenced to ten years. Dennis even­tu­al­ly took full respon­si­bil­i­ty for the crime. After pleas from numer­ous peo­ple includ­ing for­mer President Jimmy Carter, Georgia Governor Zell Miller grant­ed Harold clemen­cy in 1991. 

Supreme Court Chief Justice William Rehnquist once wrote that clemen­cy is the ​“fail safe” of our ​“fal­li­ble” judi­cial sys­tem, pro­vid­ing a path to free­dom when evi­dence emerges of a person’s inno­cence. Clemency review is typ­i­cal­ly the final moment that a per­son may be spared from exe­cu­tion. It is there­fore unsur­pris­ing that pos­si­ble inno­cence was one of the largest fac­tors in an official’s deci­sion to grant clemen­cy, appear­ing in about one-third of cas­es. While on the one hand, this could be viewed as a sign that exec­u­tives are using the clemen­cy ​“fail safe” to spare the inno­cent in the eleventh hour, it is also a sober­ing reminder that these cas­es went through years or decades of appeals with­out the legal sys­tem cor­rect­ing the error. In some cas­es, the pris­on­er came with­in hours of exe­cu­tion before clemen­cy was grant­ed. This month, Larry Roberts became the 200^th per­son to be exon­er­at­ed from death row — a sig­nif­i­cant mile­stone, but a frac­tion of the amount of peo­ple sen­tenced to death who have pre­sent­ed cred­i­ble inno­cence claims. The 200 exonerees col­lec­tive­ly spent 2,621 years in prison, and 70.5% of their cas­es involved offi­cial mis­con­duct. Some, like Kevin Strickland in Missouri, unsuc­cess­ful­ly peti­tioned for clemen­cy before a court found them to be innocent. 

Mitigation fac­tors, such as intel­lec­tu­al dis­abil­i­ty, men­tal ill­ness, youth, and trau­mat­ic upbring­ing, also played a large role, appear­ing in 28% of clemen­cy grants. Several ear­ly clemen­cy grants aligned with lat­er Supreme Court deci­sions bar­ring the death penal­ty for cer­tain groups, such as Atkins v. Virginia (2002) pro­hibit­ing the exe­cu­tion of peo­ple with intel­lec­tu­al dis­abil­i­ty and Roper v. Simmons (2005) pro­hibit­ing the exe­cu­tion of peo­ple who com­mit­ted their crimes under the age of 18. However, in some cas­es after these deci­sions were hand­ed down, low­er courts had reject­ed clear evi­dence of a qual­i­fy­ing con­di­tion for exemp­tion. For instance, in his last week in office in 2017, President Barack Obama grant­ed clemen­cy to Abelardo Ortiz, a Colombian man on fed­er­al death row with sig­nif­i­cant evi­dence of intel­lec­tu­al dis­abil­i­ty. Though Mr. Ortiz could not read or write in English or Spanish and had IQ scores rang­ing from 70 (typ­i­cal­ly seen as a bench­mark for dis­abil­i­ty) to as low as 44, two fed­er­al courts had reject­ed his claims. Many clemen­cy grants also not­ed evi­dence of severe men­tal ill­ness that mit­i­gat­ed the cir­cum­stances of the crime but would not nec­es­sar­i­ly have exempt­ed a per­son from exe­cu­tion under the Court’s con­vo­lut­ed prece­dents in that area. 

Some exec­u­tives appeared sig­nif­i­cant­ly moved by evi­dence of a petitioner’s trau­mat­ic child­hood that had not been pre­sent­ed to a jury. Robert Gattis’s ​“fam­i­ly back­ground is among the most trou­bling I have encoun­tered,” wrote Delaware Governor Jack Markell in a 2012 clemen­cy grant. Governor Markell said that the evi­dence of severe sex­u­al and phys­i­cal abuse ​“puts Mr. Gattis, his case, and his poten­tial defens­es to cap­i­tal mur­der in an entire­ly dif­fer­ent light.” Similarly, Ohio Governor John Kasich referred to Joseph Murphy’s ​“bru­tal­ly abu­sive upbring­ing” in con­clud­ing that the death penal­ty was ​“not appro­pri­ate” for Mr. Murphy in 2011. Studies con­sis­tent­ly find high rates of child­hood abuse and pover­ty among peo­ple sen­tenced to death, and psy­chi­atric research sug­gests that these ear­ly expe­ri­ences pro­found­ly shape brain development. 

Ineffective rep­re­sen­ta­tion by defense attor­neys and offi­cial mis­con­duct each appeared in about one-fifth of clemen­cy grants. The mis­con­duct cat­e­go­ry also includ­ed cas­es with irreg­u­lar­i­ties in the legal process that cre­at­ed unfair­ness, such as pros­e­cu­tion wit­ness­es recant­i­ng their tes­ti­mo­ny. These groups illus­trat­ed how actors in the legal sys­tem failed to ensure a fair tri­al and appeals process for peo­ple fac­ing death sen­tences. Jeffrey Leonard’s attor­ney did not even know his client’s real name at tri­al; the attor­ney was lat­er indict­ed for per­jury for lying to a court about his record defend­ing cap­i­tal cas­es. Kentucky Governor Ernie Fletcher com­mut­ed Mr. Leonard’s death sen­tence in 2007. In 2005, Virginia Governor Mark Warner com­mut­ed the death sen­tence of Robin Lovitt because a state court employ­ee destroyed phys­i­cal evi­dence before Mr. Lovitt’s appeals were com­plete. The ​“actions of an agent of the Commonwealth, in a man­ner con­trary to the express direc­tion of the law, comes at the expense of a defen­dant fac­ing society’s most severe and final sanc­tion,” said Governor Warner. 

We found that about half of cas­es (47.6%) had more than one stat­ed or appar­ent rea­son for clemen­cy, illus­trat­ing the com­pound­ing nature of legal vio­la­tions and unfair prac­tices in cap­i­tal cas­es. However, this did not split even­ly by cat­e­go­ry: while two-thirds of pos­si­ble inno­cence cas­es had pos­si­ble inno­cence as the only appar­ent rea­son for clemen­cy, only one rehabilitation/​remorse case out of ten had that fac­tor as the only rea­son. In oth­er words, exec­u­tive offi­cials appeared con­fi­dent in cit­ing pos­si­ble inno­cence as the sole rea­son for a clemen­cy grant, or in grant­i­ng clemen­cy when inno­cence was the pre­dom­i­nant argu­ment, but almost always relied on anoth­er jus­ti­fi­ca­tion when rehabilitation/​remorse played a role in the case. 

These find­ings sug­gest a pos­si­ble polit­i­cal motive or strate­gic mes­sag­ing to vot­ers. In our recent Lethal Election report explor­ing the politi­ciza­tion of the death penal­ty, the Death Penalty Information Center found that in the past, exec­u­tive offi­cials appeared more like­ly to grant clemen­cy when they did not have to face vot­ers; in places where exec­u­tives had sole author­i­ty to grant clemen­cy, 84.6% of indi­vid­ual clemen­cy grants occurred when the exec­u­tive was not up for reelec­tion. Executive offi­cials may per­ceive rehabilitation/​remorse as a polit­i­cal­ly ​“weak­er” jus­ti­fi­ca­tion for clemen­cy com­pared to pos­si­ble inno­cence. (It should be not­ed that Lethal Election did not find any evi­dence that vot­ers react­ed neg­a­tive­ly to grants of clemen­cy in capital cases.) 

Though much less com­mon, per­son­al pleas for clemen­cy from deci­sion­mak­ers in the orig­i­nal tri­al and vic­tim fam­i­ly mem­bers appeared to hold sig­nif­i­cant sway. In their state­ments announc­ing clemen­cy, gov­er­nors quot­ed admis­sions of error by pros­e­cu­tors or state­ments by jurors that they would have vot­ed for life if they had more infor­ma­tion about the defen­dant. In sev­er­al of the cas­es tried before the avail­abil­i­ty of life with­out parole as a sen­tenc­ing option, such as Jimmy Meders in Georgia, jurors said they vot­ed for death only because life with­out parole was not avail­able. Family requests held spe­cial sig­nif­i­cance when both the per­pe­tra­tor and the vic­tim had been mem­bers of the fam­i­ly. In Texas, Thomas Whitaker was con­vict­ed and sen­tenced to death for the mur­ders of his moth­er and broth­er; his father Kent Whitaker sur­vived a gun­shot wound to the chest. Kent asked for a life sen­tence at the tri­al stage but pros­e­cu­tors pur­sued the death penal­ty any­way, forc­ing him to con­tin­ue to fight for a life sen­tence through­out the appeals and clemen­cy process. ​“I love him, he’s my son,” Kent said. ​“I don’t want to see him exe­cut­ed at the hands of Texas in the name of jus­tice.” Governor Greg Abbott com­mut­ed Thomas’s sen­tence less than an hour before the sched­uled exe­cu­tion, his only clemen­cy grant in a death penal­ty case to date. 

A recent clemen­cy hear­ing in Utah addressed themes of mit­i­ga­tion and the com­pli­cat­ed, some­times inter­sec­tion­al role of vic­tim fam­i­lies. On July 22, Taberon Honie appeared before the Utah Board of Pardons & Parole to ask that his death sen­tence be reduced to life with­out parole. His exe­cu­tion is sched­uled for August 8. Mr. Honie was con­vict­ed and sen­tenced to death for the 1998 mur­der of his girlfriend’s moth­er, Claudia Benn. Mr. Honie, an American Indian from the Hopi-Tewa com­mu­ni­ty, was 22 years old, home­less, and extreme­ly intox­i­cat­ed on the night of the mur­der. ​“If I had been in my right mind, I would not have com­mit­ted this crime,” he said. 

Mr. Honie’s legal team shared evi­dence about his trau­mat­ic upbring­ing on the Hopi reser­va­tion, in a home with­out run­ning water or elec­tric­i­ty. Mr. Honie’s par­ents had been forced to attend Indian board­ing schools, which stripped stu­dents of their cul­tur­al knowl­edge and used wide­spread abu­sive prac­tices; both his par­ents suf­fered from alco­holism as adults and fought con­stant­ly, neglect­ing Mr. Honie and his sib­lings and leav­ing them to wan­der the reser­va­tion alone. Mr. Honie first tried alco­hol at age 5 and expe­ri­enced sev­er­al seri­ous head injuries as a child. 

His daugh­ter Tressa, who is also the grand­daugh­ter of the vic­tim, tes­ti­fied in sup­port of Mr. Honie, while oth­er fam­i­ly mem­bers tes­ti­fied against him. Tressa said that she was ​“affect­ed on both sides” and was ​“robbed of a grand­moth­er.” However, she said her father had always sup­port­ed her from prison and helped her through her own strug­gles with addic­tion. Mr. Honie’s attor­ney asked the Board to com­mute his death sen­tence so that he could con­tin­ue to be present in the lives of Tressa and her daugh­ter, Mr. Honie’s granddaughter. 

Mr. Honie told the Board that he was not ask­ing to be released — only for the right to live. ​“I lost any hold I had on soci­ety when I com­mit­ted my crimes. I earned my place in prison. What I’m ask­ing you today is: would you allow me to exist?” 

Note: Our analy­sis cov­ered all 82 grants of clemen­cy to indi­vid­ual death-sen­tenced pris­on­ers between 1977 – 2023, exclud­ing mass clemen­cy grants as those grants typ­i­cal­ly did not have case-spe­cif­ic ratio­nales. We labeled cas­es based on the rea­sons the offi­cial, typ­i­cal­ly a gov­er­nor, gave for grant­i­ng clemen­cy in a pub­lic state­ment. When the offi­cial did not offer a rea­son, we labeled a case based on the key ele­ments of the individual’s clemen­cy cam­paign. However, it should be not­ed that clemen­cy is a com­plex, polit­i­cal process that usu­al­ly involves many dif­fer­ent claims, and it is not always pos­si­ble to dis­cern the exact claims that per­suad­ed the offi­cial; this analy­sis rep­re­sents our best assess­ment of the rea­sons offi­cials relied upon to grant clemen­cy in death penalty cases.